IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 RSA.No. 423 of 2005() --------------------- AS.50/2003 of III ADDL.SUB COURT, KOZHIKODE OS.1048/1997 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT-APPELLANT-PLAINTIFF: ------------------------------------------------------------ EDAMANA ILLATH SANKARAN EMBRANTHIRI, VELIPRAM AMSOM DESOM, KOZHIKODE. BY ADV. SRI.V.G.ARUN RESPONDENT(S): RESPONDENTS-DEFENDANTS: ------------------------------------------------------------------------------ 1. E.S. SANTHADEVI, WIFE OF SANKARAN EMRANTHIRI, SURYAKANTHI HOUSE, VELIPRAM, KOZHIKODE. 2. EDAMANA ILLATH MADUSOODANAN, -DO-. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.423 of 2005 = = = = = = = = = = = = = = Dated this the 3 rd day of December, 2008 JUDGMENT The plaintiff in O.S.No.1048 of 1997 on the file of the Munsiff's Court-IIA, Kozhikode is the appellant in this second appeal. The said suit was one for declaration that the 1st defendant has not obtained any right or possession over the plaint A Schedule Property admeasuring 35½ cents under Ext.A1 settlement deed dated 22.3.85 and for recovery of possession of the said property. 2. The facts which have been either proved or admitted are the following:- The 1st defendant is the wife of the plaintiff and 2nd defendant is one of their sons. The plaintiff was the owner of the plaint C Schedule property consisting of two items. Item No.1 of the plaint C Schedule property has a total extent of 85 cents and Item No.2 of the C Schedule property has a total extent of 80 cents. The plaint B Schedule property consists of portions of item No.1 of the plaint C Schedule property and was settled by R.S.A.No.423 of 2005 2 the plaintiff in favour of two of his sons including the 2nd defendant. The plaint A Schedule Property admeasuring 35½ cents was settled by him in favour of his wife, the 1st defendant as per Ext.A1 settlement deed dated 23.2.85. Plaint A Schedule property and Plaint B Schedule Property would together constitute Item No.1 of the plaint C Schedule property. After the plaintiff and his wife fell apart, the plaintiff had, after 6 years of executing Ext.A1 settlement deed, executed Ext.A2 cancellation deed dated 25.6.91 purporting to cancel Ext.A1 settlement deed. Thereafter he filed the present suit in the year 1993 seeking the above releifs. 3. The suit was resisted mainly by the 1st defendant contending, inter alia, that Ext.A1 settlement deed was acted upon and it was not permissible for the plaintiff to cancel the same as was done under Ext.A2. 4. Both the courts below have held that Ext.A1 settlement deed was acted upon and the 1st defendant was in possession of plaint A Schedule property and was dealing with the same as the absolute owner and, therefore, it was not open to the plaintiff to cancel Ext.A1 settlement deed by executing Ext.A2 R.S.A.No.423 of 2005 3 cancellation deed. The conclusion reached by the courts below are in accordance with the decision of this Court in Gopalakrishnan v.Kamalamma (2006(4) KLT 377). No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 3 rd day of December, 2008. V. RAMKUMAR, JUDGE sj