U.P. Padmaraj vs Muraleedharan And Ors

The appellant was the appellant before the Sub Court, Ottapalam (hereinafter referred to as, “the first appellate courtâ€) 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 courtâ€). 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 plaintiffâ€​ and “the defendantâ€​ according to their status in the trial court unless otherwise stated.

The suit is for declaration of title and consequential permanent prohibitory injunction. The plaint averments, in brief, are stated as herein below;

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

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.

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.

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.

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.

Heard the learned counsel for the appellant.

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 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.

In a suit for injunction, the material 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 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.

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 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.

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 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.

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 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.

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 daughter, which have not been established in evidence.

To be “substantialâ€, 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.

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 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.