IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 RSA.No. 58 of 2009() -------------------- AS.21/2001 of SUB COURT, CHERTHALA OS.888/1997 of ADDL.MUNSIFF COURT,CHERTHALA .................... (S): APPELLANTS-PLAINTIFFS: ------------------------------------------ 1. AJITHKUMAR, S/O.GOPINATHAN NAIR, RESIDING AT CHANDRALAYAM, THEVARVATTOM, THYKKATTUSSERY, SHERTALLAI. 2. RAMACHANDRAN, S/O. -DO-. BY ADV. SRI.V.G.ARUN RESPONDENT(S): RESPONDENTS-DEFENDANTS: -------------------------------------- 1. SARASWATHI, D/O.JANAKI AMMA, RESIDING AT THYATTU VEEDU, KUMBALAM P.O., ERNAKULAM. 2. SREEDEVI ALIAS AMBILI, D/O.DAMODARAN NAIR, OF DO, DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.58 of 2009 ---------------------------------------- Dated this the 1st day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 21/2001 on the file of the Sub court, Cherthala which arises from O.S. No.888/1997 on the file of the Additional Munsiff's Court , Cherthala. . The trial court dismissed the suit. The same was confirmed in appeal by the lower appellate court. Hence this Second Appeal filed by the plaintiffs. The parties hereinafter referred to plaintiffs and defendants as arrayed in the Suit. 2. The plaintiffs are claiming title and possession on the strength of Ext.A1 settlement deed executed by their father Sri.Gopinathan Nair. According to the plaintiffs their father derived title over the plaint schedule property by virtue of Ext.A2 will dated 16.1.1984 executed by the said Gopinathan Nair's brother Sri.Damodaran Nair. The defendants are the wife and daughter respectively of the said Sri.Damodaran Nair. According to the plaintiffs the marriage between Sri Damodaran Nair and the 1st defendant had been dissolved by a decree of divorce in O.P(HMA) 14/1980 of Sub Court, Ernakulam, Sri.Damodaran Nair died in the year 1996 and on his death the father of the plaintiffs acquired absolute title over the plaint schedule property.. Hence the suit was filed for an injunction restraining defendants from trespassing into the plaint schedule property and other ancillary reliefs. 3. The suit was resisted by defendants 1 and2. They denied the execution of Ext.A1 settlement deed. According to them the settlement deed has been created with a view to foist the case. It is their case that they have got R.S.A. No. 58 OF 2009 -2- title and possession over the plaint schedule property in their capacity as the legal heirs of deceased Sri. Damodaran Nair and he has not executed any will in his lifetime as alleged by the plaintiffs. 4. The Commissioner in Ext.C1 report has not stated that the plaint schedule property was identified by him . He reported that the plaint schedule property and the properties of the father of the plaintiffs were lying contiguously without any demarcation. 5. After analysing both the oral and documentary evidence of the parties and court exhibits ,the trial court held that the plaintiffs were not entitled to any reliefs as sought for and the lower appellate court also concurred with the trial court's view. 6. The lower appellate court observed that Ext.A2 will is not a registered will. The burden is heavy on the plaintiffs to prove that Ext. A2 will was executed by Damodaran Nair and subsequently the same was acted upon and that their father had acquired possession over plaint schedule property after the death of Damodaran Nair. The lower appellate court noticed that though it is alleged by the plaintiffs that their father derived title over the plaint schedule property, no mutation was effected in the name of plaintiff's father after the demise of the testator (Sri.Damodaran Nair) and not even a tax receipt prodced by the plaintiffs to prove the payment of tax. Another important fact is the non-examination of the plaintiffs' father, Sri.Gopinathan Nair. It is not known whether the plaintiff's father was alive or not at the time of execution of Ext.A2 will There is no justifiable reasons for not citing the plaintiffs' father as a R.S.A. No. 58 OF 2009 -3- witness to the execution of Ext.A2 will. 7. On the other hand it was not proved by the defendants that the late Damodaran Nair remarried the 1st defendant. They have produced the tax receipts to show that now the property is outstanding in the name of Damodaran Nair and the 1st defendant is paying tax for the same. Ext.B2 ,B3 and B4 are tax receipts evidencing payment of tax in the name of 1st defendant in respect of the plaint schedule property. The lower appellate court held that the claim based on Ext.A2 will still remains to be established and the plaintiffs could have filed the suit to get their right declared over the plaint schedule property instead of resorting to the short cut method of ejecting the defendants from the possession . 8. The lower appellate court observed that the filing of the suit after three days of execution of Ext.A1 settlement deed unearthed the hidden agenda behind the creation of Ext.A1 settlement deed in favour of the plaintiffs, that Ext.A1 settlement deed has been deliberately created with the sole intention to oust the defendants, are not justifiable and not fit in the context of this case . In a suit for injunction, before coming to the above conclusion the lower appellate court ought to have examined the genuineness of Ext.A1 settlement deed . Instead of that it remarked that Ext.A1 settlement deed has been deliberately created with the sole intention to oust the defendants . The remark stated above shall stand expunged. At this juncture It is not necessary, particularly when there is no evidence of execution of Ext.A2 will by the plaintiffs, to decide the question as to whether who is in possession of the plaint schedule property. The plaintiffs are at liberty to file a fresh suit for declaration of title and possession on the strength of Ext.A1 settlement deed and Ext.A2 will R.S.A. No. 58 OF 2009 -4- mentioned in O.S. 888/1997. Reserving the said right to the plaintiffs the dismissal of the suit by the lower appellate court stand confirmed. In my view the findings arrived at by the courts below are on the basis of available facts , circumstances and evidence. I find no reason to interfere with the judgment and decree to invoke section 100 of the C.P.C.. This appeal is without any merits and accordingly dismissed ( HARUN-UL-RASHID,JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 58 of 2009 ---------------------------- JUDGMENT 1st June, 2009