U.P.Padmaraj vs Muraleedharan
2021 Latest Caselaw 6828 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

  FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942

                        RSA.No.130 OF 2021

                AS 70/2013 OF SUB COURT, OTTAPPALAM

           OS 411/2011 OF MUNSIFF COURT, OTTAPPALAM


APPELLANT/S:

               U.P.PADMARAJ, AGED 41 YEARS
               S/O.THANKAMMA, KUNNATH HOUSE, TRIKKADEERI P.O.,
               NAIR PADI, OTTPALAM TALUK.

               BY ADVS.
               SRI.B.PREMNATH (E)
               SRI.C.MANOJ KUMAR(KAKKANAD)
               SRI.MANI GOVINDA MARAR
               SHRI.SARATH M.S.

RESPONDENT/S:

      1        MURALEEDHARAN, AGED 62 YEARS,
               S/O.LATE KUNJILAKSHMI AMMA, KAROOR MADAM,
               CHERUTHURUTHI, THALAPPILLI TALUK, THRISSUR
               DISTRICT.

      2        MOHANARAJ, AGED 59 YEARS,
               S/O.LATE KUNJILAKSHMI AMMA, 'SUGAMAM',
               AMBALAPPARAMBU, THENJIPPALAM, MALAPPURAM DISTRICT.

      3        SOORYAKUMARI,
               S/O.LATE KUNJILAKSHMI AMMA, AGED 56 YEARS,
               'SUGAMAM', AMBALAPPARAMBU, THENJIPPALAM,
               MALAPPURAM DISTRICT.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
23-02-2021, THE COURT ON 26-02-2021 DELIVERED THE FOLLOWING:
 RSA No.130/2021

                               ..2..




                             JUDGMENT

The appellant was the appellant before the Sub

Court, Ottapalam (hereinafter referred to as,

"the first appellate court") in AS No. 70 of

2013, which was filed against the judgment and

decree dated 31.05.2013 in OS No.411 of 2011

of the Munsiff's Court, Ottapalam (hereinafter

referred to as, "the trial court"). The

respondents are the legal representatives of

the original respondent in the first appeal

and the plaintiff in the suit. The parties are

hereinafter referred to as "the plaintiff" and

"the defendant" according to their status in

the trial court unless otherwise stated.

2. The suit is for declaration of title and

consequential permanent prohibitory

injunction. The plaint averments, in brief,

are stated as herein below;

RSA No.130/2021

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The plaint schedule property originally

belonged to Alangod Tharavad by virtue of

partition deed No.299/1923 of the Sub

Registrar Office, Ottapalam. The plaint

schedule property along with some other

properties were set apart to the thavazhi of

late Paru Amma. After the death of Paru Amma,

the properties were partitioned among Devaki

Amma, Kunhilakshmi amma and her children,

viz., Mohanan, Rajan and Suryakumari as per

the Document No. 60/91 of the Sub Registrar

Office, Ottapalam. The plaint A schedule was

set apart to the share of Devaki amma. She was

residing in the Tharavad house situated in the

plaint schedule property. She died as a

spinster on 14.03.2010. The plaintiff being

the only sister of late Devaki Amma succeeded

to her entire property. On 17.11.2011, when

the plaintiff decided to reside in the house,

it was noted that many of the furnitures were RSA No.130/2021

..4..

missing. On being questioned, the defendant

did not give any satisfactory reply. The

plaintiff got a reliable information that the

defendant was attempting to break open the

door and forcibly opened the same. Hence, the

suit.

3. The defendant filed a written statement

contending that the defendant is the son of

Thankamma, who is Devaki Amma's daughter. The

plaint schedule property belonged to Devaki

Amma as per partition deed No. 60/1991. Devaki

Amma had adopted Thankamma at a very young age

as per the customary rites and was taking care

of her as her daughter. When Thankamma had her

own source of income, it was she, who was

looking after Devaki Amma. She along with her

husband, Padmanabhan Nair, had taken care of

Devaki Amma. As per a registered Will bearing

No.96/1991, Devaki Amma had bequeathed her

properties to the parents of the appellant. RSA No.130/2021

..5..

After the death of the parents of the

appellant, the appellant had taken care of

Devaki Amma. On her death, on 14.03.2010, the

Will came into existence. Till her death,

Devaki Amma had not cancelled the Will. The

defendant and the family were residing in the

residential building in the plaint schedule

property. When the appellant and his family

were not in place, the plaintiff made an

attempt to trespass into the residential

building in the plaint schedule property.

4. The plaintiff filed a reply to the written

statement, contending that Thankamma is not

the daughter of Devaki Amma and she had not

executed any registered Will bequeathing the

plaint schedule property in favour of

Thankamma and her husband. The defendant

denied that the Thankamma is the adopted

daughter of Devaki Amma.

5. Heard the learned counsel for the appellant. RSA No.130/2021

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6. The plaintiff claims right over the plaint

schedule property as the legal heir of Devaki

Amma whereas the defendant claims right over

the plaint schedule property only on the basis

of the adoption of his mother, Thankamma, as

well as on the basis of a Will allegedly

executed by Devaki Amma in favour of

Thankamma. The fact that the plaint schedule

property belonged to Devaki Amma is admitted.

The defendant has no case that other than the

plaintiff, late Devaki Amma had any other

sibling. It is the definite case of the

defendant that late Devaki Amma executed a

registered Will in favour of his parents

Padmanabhan Nair and Thankamma. Ext.B35 is the

certified copy of the Will No.96/1991 of the

Sub Registrar Office, Ottapalam. The defendant

has not produced the original Will before the

court. Hence, both the trial court and the

appellate court disbelieved the version of the RSA No.130/2021

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defendant that his parents, Thankamma and

Padmanabhan Nair, obtained the property as per

Ext.B35 Will. The trial court and the

appellate court further held that the

legatees, viz., Thankamma and Padmanabhan

Nair, predeceased the testator, Devaki Amma.

Padmanabhan Nair died on 26.01.2001; Thankamma

died on 27.06.2007; and Devaki Amma died on

14.03.2010. In view of the above

circumstances, the trial court and the first

appellate court refused to accept Ext.B35 to

substantiate the claim of the defendant. Yet

another contention was taken by the defendant

that Devaki Amma adopted Thankamma in the year

1954 in accordance with the custom prevailing

in the community. For want of reliable

evidence, both the trial court and the

appellate court concurrently disbelieved the

adoption pleaded by the defendant.

7. In a suit for injunction, the material RSA No.130/2021

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question arises for consideration is, as to

whether the plaintiff has been in possession

of the suit property on the date of the suit

and that the plaintiff has valid cause of

action to institute the suit. It is

unnecessary to discuss and decide as to

whether the plaintiff has title to the

property. The title is immaterial in an

injunction suit. So much so, it is not

necessary on the part of the defendant to set

up title over the plaint schedule property to

non suit the plaintiff. The plaintiff has

produced Ext.A4 building tax receipt dated

31.03.2009 issued by the Lekkidi Perur Grama

Panchayat; Ext.A5 Death Certificate of

Padmanabhan Nair received from Mannoor Grama

Panachayat; Ext.A6 Death Certificate received

from the Lakkidi Perur Grama Panchayat; Ext.A7

complaint dated 21.12.2010 filed by the

defendant before the Public Information RSA No.130/2021

..9..

Officer, Taluk Office, Ottappalam; Ext.A8

notice dated 22.01.2011 issued by the Taluk

Officer, Ottapalam to the plaintiff; Ext.A9

dated 20.08.2009 issued by the Golden Eye

Cable TV Connection in the name of the

original plaintiff, Kunhilakshmi Amma; and

Ext.A10 National Population Acknowledgment

Slip dated 19.04.2010 in the name of

Kunhilakshmi Amma to prove that the plaintiff

has been in possession of the plaint schedule

property after the death of Devaki Amma.

8. PW1, Kunhilakshmi Amma, adduced evidence

before the trial court that Devaki Amma died

as a spinster and she was residing in the

house allotted to her. According to PW1, she

was residing with Devaki Amma during the last

days of Devaki Amma. Devaki Amma died

intestate on 14.03.2010. To substantiate the

derivation of title of Devaki Amma, the

plaintiff produced Exts.A1 and A2 partition RSA No.130/2021

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deeds before the trial court. The claim of the

plaintiff is that plaint schedule property is

devolved on the plaintiff as she was looking

after Devaki Amma during the last days of

Devaki Amma's life. This is strongly disputed

by the defendant, setting up an independent

title over the plaint schedule property in

derogation of the right claimed by the

plaintiff.

9. As stated earlier, in an injunction suit, it

is not necessary to establish rival title. It

is also not necessary to establish the fact

that the defendant's mother, Thankamma, is the

adopted daughter of late Devaki Amma. What is

material in an injunction suit is possession

on the date of suit. The trial court relied on

the oral evidence of PW1 and Exts.A1 to A10 to

hold that the plaintiff has been in possession

of the suit property on the date of suit. The

defendant produced Exts.B1 to B35 documents to RSA No.130/2021

..11..

show that she has better title to the plaint

schedule property and the building. The

defence set up by the defendant is not a

ground to disallow the prayer for an

injunction, restraining the defendant from

dispossessing the plaintiff or interfering

with the possession of the plaintiff over the

plaint schedule property. Hence, the remedy of

the defendant is to seek appropriate reliefs

for declaration of his title and consequential

reliefs in accordance with law. It is not

necessary to consider the question of title

and the adoption pleaded as defence in this

case as contended by the learned counsel for

the appellant.

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

right of appeal is conferred by statute. A

second appeal only lies on a substantial

question of law. If statute confers a limited

right of appeal, the court cannot expand the RSA No.130/2021

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scope of the appeal. It was not open to the

defendant 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 appellate court

relied on the oral evidence of PW1, Exts.A1 to

A10 to grant a decree for permanent

prohibitory injunction, restraining the

defendant from trespassing into the plaint

schedule property or interfering with the

possession of the plaintiff over the same. The

rival title set up by the defendant to prove

that he was the true owner of the plaint

schedule property and building therein was

also no established.

11.On behalf of the appellant/defendant, it has

strenuously been contended with considerable

force that he has a better title over the

plaint schedule property and the defendant's

mother was adopted by late Devaki Amma as her RSA No.130/2021

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daughter, which have not been established in

evidence.

12.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 has been in possession of the suit

property on the date of the suit and that the

plaintiff has valid cause of action to

institute the suit is not open to challenge,

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.

13.The trial court and the first appellate court RSA No.130/2021

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examined the evidence on record at length and

arrived at a reasoned conclusion that the

plaintiff is entitled to get a decree for

permanent prohibitory injunction, restraining

the defendant from trespassing into the plaint

schedule property and interfering with her

possession. The concurrent findings of facts

of the trial court and the first appellate

court do not warrant interference in a second

appeal.

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

dismissed. There will be no order as to costs.

Pending applications, if any, stand disposed

of.

Sd/-

N.ANIL KUMAR

JUDGE bka/-