VIJAYAN Vs. PURUSHOTHAMAN

JUDGEMENT

(1.) PLAINTIFF is the appellant. Suit was one for declaration of title and for injunction. Both the courts below concurrently held that the plaintiff is not entitled to the reliefs canvassed for and he was nonsuited. Feeling aggrieved, he has preferred this Second Appeal.

(2.) SUIT property having an extent of 25 cents, a paddy land, admittedly belonged to Karutha Kunju, grand father of the plaintiff and also the defendant. He had executed Ext.A7 gift deed by which the property was gifted to his two children Padmanabhan and Kochu Pennu. Plaintiff is the son of Padmanabhan and the defendant, the daughter of Kochu Pennu. The case set up by the plaintiff is that after the death of Karutha Kunju, his father, Padmanabhan, was holding the property exclusively denying the title of Kochu Pennu openly and with hostile animus, and by such continuous possession for the statutory period, there was ouster, and title, if any, of Kochu Pennu over the property had been extinguished. On that basis, the suit claim for declaration and injunction was laid as against the defendant. The defendant, resisting the suit claim contended that ever since Ext.A7 gift deed, the property continued under joint possession of Padmanabhan and Kochu Pennu, and that the latter was taken care of by the former, her brother, till her death in 1985. With the knowledge of Padmanabhan, Kochu Pennu had executed Ext.B1 gift deed by which the southen 12.5 cents in the property had been gifted in favour of the defendant and she is in possession and enjoyment of the same as its title holder was her case. On the materials placed by both sides, which consisted of PW1 to PW3 and Exts. A1 to A7 for the plaintiff and DW1 and DW2 and Exts.B1 and B2 series for the defendant, the trial court found that the case set up by the plaintiff to have declaration of his title built upon the ouster of rights of the other co-owner had not been proved by any worth mentioning material. The revenue receipts produced by him evidencing payment of charges, which in fact was banked upon to contend that the other co-owner, Kochu Pennu, had not exercised any right over the suit property during her life time, was found of insignificant value as payment of revenue charges by one co-owner could be treated as payment on behalf of other co-owner. Other than that circumstance which had been canvassed by the plaintiff to substantiate his plea of ouster the court found there was total paucity of evidence even to infer that late Padmanabhan and thereafter the plaintiff had exercised rights over the property denying the title of Kochu Pennu, and, later, the defendant. View so formed by the trial court on the materials placed in the case was found unassailable by the lower appellate court.The lower appellate court also found that there was no specific allegation as to the overtacts to spell out that there was an ouster of rights of the defendant over the suit property by the plaintiff or by his predecessor. It was also noticed that Kochu Pennu, who passed away in 1985, resided along with Padmanabhan, the father of the plaintiff, and he attended to her affairs. The case of the defendant that Ext.B1 gift deed was executed by Kochu Pennu with knowledge of Padmanabhan and thereby she had obtained separate possession and enjoyment over the 12.5 cents of property on the southern portion of the suit property was also found probable and creditworthy by the lower appellate court. I do not find any impropriety or illegality in the conclusion concurrently formed by both the courts below that the plaintiff has miserably failed to establish his case canvassed that there was ouster of the rights of the defendant and thereby he was entitled to the reliefs canvassed in the suit. No question of law leave alone any substantial question of law is involved in the appeal, and it is dismissed.