John Peter vs Lovely.K.Koshy
2021 Latest Caselaw 10943 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

    WEDNESDAY, THE 07TH DAY OF APRIL 2021/17TH CHAITHRA, 1943

                       RSA.No.316 OF 2021

  AS 23/2019 DATED 02-03-2021 OF II ADDITIONAL DISTRICT COURT,
                             KOLLAM

   OS 90/2018 OF PRINCIPAL MUNSIFF COURT, KOLLAM DTD.21.12.2018

APPELLANTS/APPELLANTS/DEFENDANTS:
       1     JOHN PETER,
             AGED 54 YEARS,
             S/O. N.P.JOHN, VYSHNAVAM, MYLOM P.O.,
             KOTTARAKKARA TALUK, NOW RESIDING AT KOTTAYADI
             BUILDING, ARUMURIKADA, ELAMPALLOOR VILLAGE,
             KOLLAM TALUK-691501.
       2     LUCY PETER,
             AGED 53 YEARS,
             W/O. JOHN PETER, VYSHNAVAM, MYLOM P.O.,
             KOTTARAKKARA TALUK, NOW RESIDING AT KOTTAYADI
             BUILDING, ARUMURIKADA, ELAMPALLOOR VILLAGE,
             KOLLAM TALUK-691501.
       3     LALY ABRAHAM,
             AGED 60 YEARS,
             W/O. THOMAS ABRAHAM, VYSHNAVAM, MYLOM P.O.,
             KOTTARAKKARA TALUK,
             NOW RESIDING AT KOTTAYADI BUILDING, ARUMURIKADA,
             ELAMPALLOOR VILLAGE,
             KOLLAM TALUK-691501.
             BY ADVS.
             SRI.PRAVEEN K. JOY
             SRI.E.S.SANEEJ
             SRI.N.ABHILASH
             SHRI.DEEPU RAJAGOPAL
RESPONDENT/RESPONDENT/PLAINTIFF:

             LOVELY.K.KOSHY,
             AGED 55 YEARS,
             W/O. JOHN T. JOHN,
             RESIDING AT KOTTAYADI BUILDING, ARUMURIKADA,
             ELAMPALLOOR VILLAGE, KOLLAM TALUK-691501.

                BY ADV. SANTHOSH MATHEW

      THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
26-03-2021, THE COURT ON 07-04-2021 DELIVERED THE FOLLOWING:
 R.S.A.No.316 of 2021


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                        JUDGMENT

This R.S.A. is directed against the judgment dated

02.03.2021 in A.S.No.23/2019 on the file of the second

Additional District Court, Kollam (hereinafter referred to

as 'the first appellate court') which arose from the

judgment and decree dated 21.12.2018 in

O.S.No.90/2018 on the file of the Principal Munsiff's

Court, Kollam (hereinafter referred to as 'the trial court').

2. The appellants and respondent herein are the

defendants and the plaintiff respectively before the trial

court. For the sake of clarity, the parties are hereinafter

referred to as the plaintiff and defendant according to

their status in the trial court unless otherwise stated. The

plaintiff filed the suit before the trial court with a prayer

for declaration that the defendants have no manner of

right over the plaint schedule property and consequential R.S.A.No.316 of 2021

..3..

mandatory injunction directing the defendants to vacate

the plaint schedule property. The suit was decreed by the

trial court. The defendants preferred an appeal before the

first appellate court. The appeal was dismissed. Hence this

R.S.A.

3. The plaintiff is the wife of Sri.John T.John who is

currently working in USA. The plaintiff married Sri.John

T.John on 12.9.2012 when she was 48 years old. The 2 nd

defendant is the younger sister of the plaintiff and the 1 st

defendant is the husband of the 2nd defendant. The 3rd

defendant is the elder sister of the plaintiff. The plaint

schedule property originally belonged to K.K.Koshy who is

none other than the father of the plaintiff and the

defendants 2 and 3. During his life time, he had settled

the plaint schedule property in favour of the plaintiff by

virtue of settlement deed No.2301/2007. Accordingly, the R.S.A.No.316 of 2021

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plaintiff has been in possession and enjoyment of the

plaint schedule property as absolute owner thereof and

she continued her residence with her parents therein. In

the year 2012, the defendants wound up their business at

Chennai and returned to their native place. When the

plaintiff left for USA to join her husband, the defendants

won over the father and instituted O.S.No.168/2013 to

cancel the settlement deed in favour of the plaintiff. The

plaintiff entered appearance in the suit and contested the

proceedings. The suit was ultimately dismissed for default

on 25.7.2014. Since the defendants continued their

threat, the plaintiff filed O.S.No.290/2013 for perpetual

injunction restraining the defendants from trespassing into

the plaint schedule property. While so, the mother of the

plaintiff passed away on 18.4.2013. In violation of the

order of injunction, the defendants trespassed into the R.S.A.No.316 of 2021

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property and forcibly shifted the father. Hence, the

plaintiff filed a complaint before the police. Accordingly,

the defendants left the family house and the father

continued to remain in the family house. Since the plaintiff

wanted to move to USA, the plaintiff did not press civil

and criminal proceedings initiated against the defendants.

The plaintiff permitted the defendants to reside in the

plaint schedule property to look after the father as she

had to gone to USA on 25.6.2015. Thereafter, the 2 nd and

the 3rd defendants instituted O.S.No.985/2015 against the

plaintiff and her father before the Munsiff's Court, Kollam

and obtained a decree of perpetual injunction restraining

the plaintiff and her father from forcibly evicting them

from the plaint schedule property. In the meanwhile, the

Doctors in USA confirmed that the plaintiff was suffering

from cancer. Since she was undergoing treatment she was R.S.A.No.316 of 2021

..6..

unable to contest the suit which eventually led to the

decreeing of the suit. The defendants are only trespassers

in the plaint schedule property and they have succeeded

in obtaining a decree of injunction against the absentee

plaintiff.

4. The defendants 1 and 2 filed written statement

raising the following contentions:-

According to the defendants, the plaintiff

continued as a spinster and Sri.John T.John is not her

husband. According to the defendants, the settlement

deed executed by the father in favour of the plaintiff is as

a result of fraud and misrepresentation. The father

instituted O.S.No.168/2013 to set aside the alleged

settlement deed. The defendants had been residing along

with the father till his death and continued their

occupation therein as of right. The criminal proceedings R.S.A.No.316 of 2021

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initiated by the plaintiff against the defendants were

quashed by this Court as per a joint petition filed by both

parties. O.S.No.985/2015 was decreed and the plaintiff

and the father were restrained from forcibly evicting the

defendants 2 and 3. The father of the plaintiff passed

away on 19.9.2016. The suit is lacking in bonafides and is

liable to be dismissed.

5. Taking into consideration the rival contentions of

both sides, the trial court framed the following issues for

trial:-

1. Did not the father of the plaintiff convey plaint schedule property in her favour by executing settlement deed No.2301/2007?

2. Does the defendants have any right in the plaint schedule property? If yes, what right?

R.S.A.No.316 of 2021

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3. Are the defendants entitled to continue their residence in the plaint schedule property?

            4.     Is   the     plaintiff       entitled    to     the
                   declaration, as sought for?


            5.     Is   the     plaintiff       entitled    to     the
                   mandatory injunction, as sought for?


            6.     Reliefs and costs.

6. Heard learned counsel for the appellants and

the learned counsel for the respondents.

7. Admittedly, the plaint schedule property

originally belonged to Sri.K.K.Koshy, the father of the

plaintiff and the defendants 2 and 3. Exts.A2 settlement

deed was executed by the father in favour of the plaintiff R.S.A.No.316 of 2021

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settling the plaint schedule property. Consequent to

Ext.A2, the plaintiff remitted land tax as per Ext.A3. It is a

fact that the mutation was effected in the name of the

plaintiff and land tax was paid. As per Ext.A2, the title and

possession of the plaint schedule property on the date of

execution were with the plaintiff. At the instance of the

defendants, the plaintiff's father instituted

O.S.No.168/2013 seeking cancellation of the settlement

deed. The said suit was dismissed for default on

25.7.2014. In view of the dismissal, the execution of

Ext.A2 settlement deed in favour of the plaintiff has been

approved. The executant has failed in prosecuting the suit

and the dismissal of O.S.No.168/2013 for default has

become final. It is brought out that subsequent to the

dismissal of O.S.No.168/2013 for default, there was an

understanding between the parties. The criminal case and R.S.A.No.316 of 2021

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civil case between the parties were settled. The criminal

case against the defendants were quashed by this Court

pursuant to a compromise between the parties.

O.S.No.290/2013 filed by the plaintiff was dismissed as

withdrawn. The plaintiff permitted the defendants 2 and 3

to continue occupation of the building on a license basis to

look after the father while she was away in USA. Later,

she underwent treatment in USA for cancer. She is a

cancer survivor. She came back to India subsequent to the

death of her father and requested the defendants to

vacate the premises. In her absence, they obtained a

decree in O.S.No.985/2015 restraining the plaintiff and

her father from forcibly evicting the defendants from the

plaint schedule property. Hence, the plaintiff filed the

present suit for declaration that the defendants have no

manner of right to continue the residence in the plaint R.S.A.No.316 of 2021

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schedule property without the consent of the plaintiff and

consequential mandatory injunction directing the

defendants to vacate the plaint schedule property.

8. The main contention raised by the defendants is

that in the year 1996, the father had executed a Will

bequeathing the plaint schedule property on the plaintiff

and the 2nd defendant equally. Therefore, it is contended

that Ext.A2 Will has no sanctity in the eye of law. It is a

fact that late K.K.Koshy executed Ext.A2 gift deed

No.2301/2007 on 16.5.2007 in favour of the plaintiff. He

himself made an attempt to challenge Ext.A2 by filing

O.S.No.168/2013 before the trial court which was

eventually dismissed for default by the trial court on

25.7.2014. Hence, the plaintiff's father had no right to

execute a Will in modification of Ext.A2. As indicated

herein above, Ext.A2 has come into effect and the plaintiff R.S.A.No.316 of 2021

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paid tax to the property by virtue of Ext.A3. It is settled

principle of law that the father had no right to execute the

Will bequeathing the property equally in favour of the

plaintiff and the 2nd defendant as contended. The alleged

Will has not been produced in this case. In view of the

above facts and circumstances, both the trial court and

the first appellate court entered a finding that the plaintiff

has valid title to the plaint schedule property by virtue of

Ext.A2 settlement deed and the defendants have no right

to continue in the plaint schedule property. Hence, both

the trial court and the first appellate court concurrently

held that the plaintiff is entitled to get a decree for

declaration and consequential mandatory injunction as

prayed for.

9. A second appeal is not a matter of right. The

right of appeal is conferred by statute. A second appeal R.S.A.No.316 of 2021

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only lies on a substantial question of law. If statute

confers a limited right of appeal, the Court cannot expand

the scope of the appeal. It was not open to the defendants

to re-agitate facts or to call upon the High Court to re-

analyse or re-appreciate evidence in a second appeal. In

the case on hand, both the trial court and first appellate

court meticulously analysed the evidence on record, i.e.,

oral evidence of PW1, DW1 and Exts.A1 to A21 to grant a

decree for declaration and consequential mandatory

injunction.

10. On behalf of the appellants, it has strenuously

been contended with considerable force that Ext.A2

settlement had not come into effect and the father, late

K.K.Koshy executed a Will bequeathing the property in

favour of the plaintiff and the 2nd defendant equally.

However, there is no contra evidence adduced by the R.S.A.No.316 of 2021

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defendants to prove a probable case that Ext.A2 was

executed by the father out of fraud, undue influence and

coercion on the part of the plaintiff. In fact, necessary

pleadings to this effect are absent in the case. The

evidence would show that the parties settled the matter

out of court and the defendants were allowed to continue

in the residence to look after the father on a license basis.

To be "substantial", a question of law must be debatable,

not previously settled by the law of the land or any

binding precedent, and must have a material bearing on

the decision of the case and/or the rights of the parties

before it, if answered either way. As stated earlier, in a

second appeal, the jurisdiction of the High Court being

confined to substantial question of law, a finding of fact

that the plaintiff's father executed Ext.A2 settlement deed

in favour of the plaintiff that consequently the plaintiff R.S.A.No.316 of 2021

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paid tax to the property by virtue of Ext.A2, that the

plaintiff's father filed a suit against the plaintiff to cancel

Ext.A2 before the court which was dismissed for default is

not open to challenge in second appeal, even if the

appreciation of evidence is wrong. There is no debatable

issue before this Court which is not covered by settled

principles of law or precedents.

11. The trial court and the first appellate court

examined the evidence on record at length and arrived at

a reasoned conclusion that the plaintiff is entitled to get a

decree for declaration and consequential mandatory

injunction as prayed for. The concurrent findings of facts

of the trial court and the first appellate court do not

warrant interference in a second appeal.

12. For the reasons discussed above, the R.S.A. is

dismissed. There will be no order as to costs. Pending R.S.A.No.316 of 2021

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applications, if any, stand disposed of.

13. Considering the fact that the parties are close

relatives, it is just and proper to grant nine months' time

to the defendants to surrender the plaint schedule building

to the plaintiff in case the defendants file separate

affidavits within two months from today before the

executing court agreeing to surrender the plaint schedule

building within nine months from the date of this

judgment. In case of failure to comply with the above

directions, the plaintiff is entitled to execute the decree in

accordance with law without any further order from this

Court.

It is disclosed from the order in I.A.No.568/2018 that

the trial court granted interim prohibitory injunction from

causing any manner of obstruction or hindrance in the

peaceful possession and residence of the plaintiff and her R.S.A.No.316 of 2021

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husband in the plaint schedule property. In the light of the

said order, the present status quo shall be maintained

until the defendants surrender the plaint schedule building

to the plaintiff or evicted in execution of the decree as

stated hereinabove.

Sd/-

N.ANIL KUMAR, JUDGE skj