IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 SA.No. 836 of 2000(G) ----------------------------- AS.63/1994 of DISTRICT COURT, KOTTAYAM OS.189/1992 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/PLAINTIFF NO.2: ------------------------------------------- THOMAS JOSEPH, AGED 50, SON OF THOMAS, RESIDING AT NADUVILEDATHU PUTHENMACKAL, PUTHENPURAKKAL, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE. BY ADV. SRI.K.RAMACHANDRAN RESPONDENTS/DEFENDANTS: ------------------------------------------ 1. CHACKO, AGED 48, SON OF MATHAI, TEACHER, THADATHIL, ELANPILLI KARA, ANICKADU VILLAGE. 2. MERCY, AGED 38, WIFE OF CHACKO OF -D0- -D0- 3. KUNJAMMA PHILIP, AGED 59, W/O. PHILIP, ALUMKAL HOUSE, CHELLAKUNNU JUNCTION, MUNDATHANAM, KOTTAYAM DISTRICT. 4. MEYAMMA THOMAS, AGED 57, W/O.THOMAS, KOTTARATHIL HOUSE, PUNNAKKUNNU JUNCTION, THENGANA P.O. 5. ANNAMMA THOMAS, AGED 55, W/O. THOMAS, KAVUNGAL HOUSE, CHETTUTHODU P.O., PINNUKKUNADU, KANJIRAPPALLY. 6. THANKAMMA THOMMY, AGED 49, W/O. JOSEPH, NADUVILEDATHU, PUTHANACKAL, KOOTHRAPPALLY P.O., KARUKACHAL. ADVS. SRI.JOMY GEORGE FOR R1&2 SRI.K.R.KURUP FOR R5 SRI.C.R.SYAMKUMAR FOR R5 SRI.R.AJITH FOR R5 SRI.K.J.ABRAHAM FOR R5 SRI.LAVARAJ M.G. FOR R5 SRI.JOSE KURIAN FOR R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln P.BHAVADASAN, J. ---------------------------- S.A.No. 836 of 2000 --------------------------------- Dated this the 14th day of July, 2011 JUDGMENT The second plaintiff, who suffered a dismissal of the suit, which was confirmed by the lower appellate court, is the appellant before this Court. 2. The suit was one for declaration of title and for mandatory and prohibitory injunction. The facts of the case are narrated by both the courts below and so, the facts absolutely necessary for the disposal of the case alone and stated in this judgment. 3. First plaintiff obtained 7 acres and 24 cents of land on the death of his father. He distributed his property among his children and wife. By Ext.A6, he assigned 1.24 acres of land to the first defendant dated 31.12.1984. By Ext.A8, he assigned 1.2 acres to another daughter and by Ext.A9 he assigned three acres to his wife. According to the plaintiff, Ext.A6 gift deed in favour of the first defendant contains certain conditions. He did not discharge the obligation. The gift deed was executed on 08.05.1986 and Ext.A5 document was executed in favour of the S.A.No. 836 of 2000 2 second plaintiff by the first plaintiff whereby he was put in possession of 95 cents of property. The defendants are not entitled to the property covered by Ext.A5. Hence, the suit was laid, for declaration of right of the first plaintiff over the plaint schedule property and for mandatory and prohibitory injunction. 4. The suit was resisted by the defendants. They disputed the plaint description and also mentioned about various transactions with respect to the properties and about suits pending before Court. They raised the plea of resjudicata and also preferred a counter claim. 5. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B7 marked. 6. On an appreciation of the evidence in the case, the trial court found that the assignment as per Ext.A5 was without authority and the plaintiffs are not entitled to any reliefs as prayed for. Accordingly, the suit was dismissed and counter claim S.A.No. 836 of 2000 3 was allowed. The second plaintiff carried the matter in appeal as A.S.No.63/1994 before the District Court, Kottayam. The lower appellate court confirmed the judgment and decree of the trial court. Hence the Second Appeal. 7. Notice is seen issued on the following substantial questions of law: A. Did not the courts below err in ignoring the proved fact of the total extent belonging to the first plaintiff, and the extent covered by the title deeds of the defendants ? B. Did not the court below erred in finding that Ext.A5 is hit by lis pendens ? C. Did not the courts below go wrong in relying upon inadmissible documents like Exhibit B6 ? D. Did not the courts below fail in placing the burden of proof legally ? E. Did not the courts below act illegally in disallowing the plaintiffs to take out a commission to identify the plaint schedule house ? F. Were the courts below justified in dismissing the suit and allowing the counter claim ? 8. The learned counsel appearing for the appellant drew attention of this court to the fact that earlier, an I.A had been filed in the suit seeking for issuance of a commissioner to identify S.A.No. 836 of 2000 4 the property. That petition was dismissed by the trial court holding that there was no need to get the properties identified because they have within well defined boundaries. Thereafter, the trial court went on to hold that the plaint schedule properties were not identified and non-suited the plaintiff. That was confirmed in appeal. The learned counsel also drew attention to the appeal memorandum before the lower appellate court specific ground was taken with respect to the commission application filed before the trial court. The learned counsel went on to point out that going by Ext.A5 there is excess land and the second plaintiff alone is entitled to the building in the excess land. The defendants are not entitled to excess land and the building therein. These aspects have not been considered and that was resulted in miscarriage of justice. 9. The learned counsel appearing for the respondent on the other hand contended that there is no merit in the above contention at all. Ext.A6, which is in favour of the first defendant is the last document executed by the first plaintiff and he had taken the balance property left behind him after Exts.A7, A8 and S.A.No. 836 of 2000 5 A9. The cancellation deed was found to be invalid in O.S.No.312/1986 and therefore, Ext.A5 taking in a portion of the property covered by Ext.A6, cannot confer any right on the second plaintiff. As far as the building is concerned, it is pointed out that the second plaintiff is examined and lower court found that it was in the property covered by Ext.A9 which was gifted in favour of the first plaintiff and later transferred in favour of his wife. Later on she executed a gift deed in favour of the second defendant. The lower court also found that if at all there was any excess land that would have been assigned by virtue of Exts.A6 to A9, and after that, the property left with first plaintiff was assigned to second plaintiff. In these circumstances, the learned counsel pointed out that dismissal of the application for issuance of a commission would have no consequence or significance. The learned counsel went on to point out that both the courts below have considered the evidence in considerable detail and have come to the conclusion that the second plaintiff cannot succeed on the basis of the case put forward and dismissed the suit. The findings of the courts below are pure questions of fact and no S.A.No. 836 of 2000 6 substantial questions of law arises for consideration in the Second Appeal. 10. The point urged before this court is that a commissioner ought to have been appointed for identifying the properties. True, Ext.A5 makes mention of a well within the excess land. It is also true that Ext.A5 makes mention of certain structures and claim of the appellant is that there are certain structures standing in the property and if that be so, even assuming Ext.A6 is valid, the defendant is not entitled to the building standing thereon. 11. The trial court dismissed the application for issuance of a commission. Even going by the averment and the case put forward by the parties the plaint schedule property is lying within defined boundaries. There was no dispute regarding the identity of the property. However, the first plaintiff had no property after the execution of Ext.A6, the last among the four gift deeds executed by him. Ext.A5 document in favour of the second plaintiff was executed after cancellation of Ext.A6 and in Ext.A5 there is a specific recital relating to Ext.A6. Both the courts S.A.No. 836 of 2000 7 below have noticed that the cancellation deed has been set aside in O.S.No.312/1996 as would be seen from Exts.B2 and B3. The appeal filed to set aside the judgment and decree of the courts below was dismissed and the decree has become final. It would appear that there are several litigations between the parties and even a suit for injunction also is pending. 12. Coming to the excess area and the building therein, the learned counsel for the respondents is right in saying that after executing the four gift deeds, first plaintiff was left with no property to assign to the second plaintiff. A reading of Ext.A6 would show that though the extents shown in 1.24 acres of the property left after the gifts covered by Exts.A7 to 9 have been given as per Ext.A6. It has come out that the buildings are in the property gifted by the first plaintiff's wife. The courts below have also considered the issue regarding excess land and have come to the conclusion that if at all these allegation of reasons have been laid incorrect, it was assigned as per Exts.A6 and A7. It is also important to notice that Ext.A5 was executed after setting aside the cancellation deed. Even otherwise once the cancellation S.A.No. 836 of 2000 8 deed is found to be invalid, Ext. A5 cannot survive. As rightly pointed out by the learned counsel for the respondents the findings of the lower courts are based on appreciation of the evidence and they are findings of fact. No substantial questions of law arise for consideration in the second appeal. The second appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln