IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 RSA.No. 793 of 2008() --------------------- AS.9/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1633/2003 of III ADDL.MUNSIFF COURT,ERNAKULAM (RENT CONTROL) .................... APPELLANTS/DEFENDANTS; ------------------------------ 1. M.K.SAROJINI, W/O.VIJAYAN, AGED 51 YEARS, PALLATH HOUSE, MAMANGALAM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. 2. RADHAKRISHNAN, S/O.VIJAYAN, AGED 29 YEARS, PALLATH HOUSE, MAMANGALAM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. 3. SAJISH, S/O.VIJAYAN, AGED 27 YEARS, PALLATH HOUSE, MAMANGALAM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. 4. VIJISH, S/O.VIJAYAN, AGED 24 YEARS, PALLATH HOUSE, MAMANGALAM KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH RESPONDENT(S): RESPONDENTS/PLAINTIFFS: -------------------------------------- 1. P.N.SUNIL KUMAR, S/O.NARENDRAN, AGED 46 YEARS, RESIDING AT PULLARCOT HOUSE, NO.34/2241 A, POTTAKUZHI ROAD, MAMANGALAM, ERNAKULAM. 2. MRS. ELIZHABETH KURUVILLA, W/O.KURUVILLA OMMEN, AGED 48 YEARS, RESIDING AT 34/2242 A2, POTTAKUZHI ROAD, MAMANGALAM, ERNAKULAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 793 of 2008 * * * * * * * * * * * * * * * * * * Dated: 23-09-2008 JUDGMENT Defendants 2 to 4 in O.S. No. 1633 of 2003 on the file of the III Addl. Munsiff Court, Ernakulam, are the appellants. The said suit was for a perpetual injunction restraining the defendants from obstructing the two plaintiffs from using the plaint B schedule pathway for the beneficial enjoyment of plaint A and C schedule properties belonging to the first and 2nd plaintiff respectively. The plaint 'A' schedule property belonging to the first plaintiff has an extent of 12.16 cents and plaint 'C' schedule property belonging to 2nd plaintiff has an extent of 10.15 cents. 2. The facts concurrently found by the courts below can be summarised as follows: Plaint A and C schedule properties together with plaint B schedule pathway altogether having an extent of 1.32 acres belonged to one Parvathy Amma. In the year 1961 the said Parvathy Amma settled all her properties in favour of her son and daughters as per Ext.P2 settlement deed dated 8-8-1961. The defendants are the legal heirs of one Vijayan who was the only son of Parvathy Amma. This R.S.A. 793 of 2008 -:2:- Vijayan was not heard of for the past several years. A schedule in Ext.B2 settlement deed was allotted in the joint names of Parvathy Amma and her minor son Vijayan. The other properties were allotted to the shares of the daughters of Parvathy Amma. B schedule in Ext.B2 was allotted to Kamalakshy, plaint C schedule was allotted to Pankajakshy, plaint D schedule was allotted to Leela, plaint E schedule to Sulochana and plaint F schedule was set apart to Prabha all of whom are the daughters of Parvathy Amma. Parvathy Amma had retained rights over the property till her death and it was only on her death that the settlees were entitled to get the properties. After the execution of Ext.B2 the first plaintiff purchased the plaint A schedule as per Ext.A5 sale deed dated 1-3-1990 from some of the allottees under Ext.B2 settlement. Subsequently the 2nd plaintiff's husband purchased plaint 'C' schedule property as per a registered document of the year 1996 from one Antony who in turn got the property from a settlee under Ext.B2. Along with the execution of Ext.A5 sale deed, Parvathy Amma and other share holders executed Ext.A3 agreement dated 1-3-1990 assigning the right to use plaint B schedule pathway to the assignees under assignment that the plaintiffs claim to right to use plaint B schedule pathway for the beneficial enjoyment of plaint A and C schedule properties. R.S.A. 793 of 2008 -:3:- 3. The learned counsel for the appellant re-iterated the following contentions before me: When Parvathy Amma herself had only a life interest, she could not have settled the properties in favour of her children, much less, give an assignment of the right to use plaint B schedule pathway. Moreover, neither Vijayan, nor the defendants are parties to Ext.A3 assignment and, therefore, the same is not binding on the defendants. 4. I am afraid that I cannot agree with the above scontentions. The defendants who claim through Vijayan who was a settlee under Ext.B2 cannot be heard to contend that Parvathy Amma, the settler had only life interest over the property and was incapable of settling the properties. It may be true that the defendants are not parties to Ext.A3 assignment of the right use plaint B schedule property. But then, under Ext.B2 the property was not given in presenti to Vijayan but the vesting was postponed to to a day after the death of the settler Parvathy Amma. The effect of the recital in Ext.B2 is that no property was settled in favour of Vijayan till the life time of Parvathy Amma. If so, neither Vijayan, nor his legal representatives were entitled to be joined as parties to Ext.A3 assignment given by Parvathy Amma and other sharers regarding the right to use the plaint B schedule pathway. Such being the position, no question of law, R.S.A. 793 of 2008 -:4:- much less, any substantial question of law arises for consideration in this appeal which is accordingly dismissed. Dated this the 23rd day of September 2008. V. RAMKUMAR, (JUDGE) ani.