IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 RSA.No. 198 of 2011() --------------------- AS.149/2003 of SUB COURT, OTTAPPALAM OS.76/1996 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. KALU, AGED ABOUT 67 YEARS, W/O.LATE SANKARAN, CHOLAPPULLIYALIL HOUSE, THRITHALA AMSOM DESOM, OTTAPALAM TALUK. 2. MOHANAN, AGED ABOUT 36, S/O.FIRST RESPONDENT KALU, CHOLAPPULLIYALIL HOUSE, THRITHALA AMSOM DESOM, OTTAPALAM TALUK. 3. JAYA, AGED ABOUT 27, W/O.R2 MOHANAN, CHOLAPPULLIYALIL HOUSE, THRITHALA AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ KRISHNANKUTTY, AGED 64 YEARS, S/O.KARUVADIYIL AYYAPPAN, PERIMUDIYOOR AMSOM DESOM OTTAPALAM TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R SRI.K.RAVI (PARIYARATH) FOR R THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.198 of 2011 ............................................ DATED THIS THE 29th DAY OF NOVEMBER, 2011 JUDGMENT Defendants in O.S.76 of 1996 on the file of Munsiff- Magistrate Court, Pattambi are the appellants. Respondent is the plaintiff. Suit was filed originally for mandatory injunction in respect of the residential house and permanent prohibitory injunction in respect of the remaining portion of the plaint schedule property. Suit was subsequently amended claiming recovery of possession on the strength of title. The plaint schedule property admittedly originally belonged to Sankaran. First appellant is his widow and appellants 2 and 3 are their children. Respondent would claim that under Ext.A1, Sankaran sold the plaint schedule property to him and thereby he is the absolute owner in possession of the property and therefore he has title to the property. Respondent contended that after execution of Ext.A1 sale deed, respondent permitted Sankaran to occupy the property for some period and Sankaran committed suicide on 24.12.1995 and when respondent reached the house, Rsa 198/2011 2 he found it occupied by appellants and it is contended that they are in possession of the building as licensees and as they have no right to continue possession, decree was sought for. 2. Appellants resisted the suit contending that though Ext.A1 sale deed was executed by Sankaran in favour of respondent, it was only a sham and nominal document to shield the property, as Sankaran apprehended that appellants would claim maintenance and to avoid proceeding against the property and therefore based on Ext.A1, respondent is not entitled to claim title. It was also contended that possession of the house by appellants is not as licensees but as widow and children of Sankaran and on the death of Sankaran, his rights devolved on the appellants and therefore respondent is not entitled to the decree sought for. 3. Learned Munsiff on the evidence found that respondent has title to the plaint schedule property under Ext.A1, rejecting the case of appellants that it was a sham and nominal document. But it was found that possession of the house by the appellants is not as licensees and in any case the license was not terminated and therefore respondent is not entitled to the decree in respect Rsa 198/2011 3 of the house and the way to the house. The decree for injunction was passed in respect of the property excluding the house and the way. Aggrieved by the decree, refusing to grant recovery of possession of the building, respondent filed A.S.143 of 2003. Challenging the decree for injunction in respect of the property, defendants filed A.S.149 of 2003 before Sub Court, Ottappalam. Learned Sub Judge, on re-appreciation of the evidence, confirmed the findings of the learned Munsiff that Ext.A1 is not vitiated and under Ext.A1, respondent has title to the plaint schedule property. It was further found that as the suit is based on title, the question whether appellants are licensees and whether license was terminated do not assume importance and as respondent has title, a decree for recovery of possession in respect of the building was granted. A.S.143 of 2003 was therefore allowed and A.S.149 of 2003 was dismissed. Appeal is filed challenging the decree passed by the Sub Judge. 4. Learned counsel appearing for appellants and learned counsel appearing for respondent were heard. Learned counsel appearing for appellants argued that courts below did not property appreciate the evidence and should have found that Rsa 198/2011 4 Ext.A1 was not executed by Sankaran with the intention to transfer the property in favour of the respondent. It was argued that as the relationship of Sankaran with his wife and children were strained, Ext.A1 was executed to shield the property from being proceeded against apprehending that maintenance will be claimed and on a proper appreciation, courts below should have found that Ext.A1 does not confer title on the respondent and on the death of Sankaran, plaint schedule property belonged to the appellants. Learned counsel also argued that in any case, when the alleged license was not proved, a decree for recovery of possession should not have been granted. Learned counsel finally submitted that even if the argument is not accepted, appellants be granted reasonable time to vacate possession of the building in the plaint schedule property. 5. Learned counsel appearing for respondent submitted that in case the appeal is to be dismissed, respondent has no objection for granting six months' time to surrender vacant possession of the building, provided the appellants unconditionally undertake to surrender vacant possession of the building. Rsa 198/2011 5 6. On going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. Execution of Ext.A1 sale deed by Sankaran in favour of the respondent is not disputed. The only contention is that Sankaran had no intention to transfer the plaint schedule property in favour of respondent and Ext.A1 is not supported by consideration and it was created by Sankaran to shield the property as he apprehended that appellants would proceed against the property claiming maintenance. Learned Munsiff and learned Sub Judge on proper appreciation of the evidence found that the said defence raised by the appellants is without any merit. That factual finding entered by the courts below based on the evidence, cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. If that be so, it cannot be disputed that respondent has title to the plaint schedule property under Ext.A1. When the suit is for recovery of possession of the building in the plaint schedule property on the strength of title and for injunction in respect of the property, as respondent has title and appellants have no right to continue in possession of the building, first appellate court rightly granted a decree for Rsa 198/2011 6 recovery of possession of the plaint schedule building while conferring the decree for permanent prohibitory injunction. In such circumstances, I do not find any merit in the appeal. 7. Appeal is dismissed. If second appellant files an affidavit within two weeks from today before the trial court, unconditionally undertaking to surrender vacant possession of the building on the expiry of six months from today, the decree shall not be executed for six months from today. M.SASIDHARAN NAMBIAR, JUDGE lgk