BHEEVATHUMMA Vs. MUHAMMED KHANI RAWTHER

JUDGEMENT

(1.) Defendants 1 and 2 in OS 225/1985 on the file of Munsiff Court, Chittur are the appellants. First respondent is the plaintiff and second respondent the 3rd defendant. First respondent instituted the suit seeking a decree for permanent prohibitory injunction restraining defendants from tress passing into the plaint schedule properties consisting five items of properties. There was no dispute with regard to the right and possession of first respondent obtained under Ext. A1 gift deed over items 1 to 4. Defendants in their written statement admitted that first respondent is in possession of items no. 1 to 4 of the plaint schedule properties and they do not claim any right or possession over the same. The dispute is with regard to item no. 5 of the plaint schedule properties which is 16 cents in survey no. 538 A of Muthalamada village. Admittedly, the said property originally belonged to the mother of first defendant, who was the first wife of Khader Moideen Rawther, father of first respondent. First appellant along with her sister and brothers are the children of Beevathumma, the second wife, wife of Khader Moideen Rawther. First respondent is the daughter of Khader Moideen Rawther in his first wife. Second appellant and 2nd respondent are the children of the first appellant. Under Ext. B1 release deed first respondent, her sister and brother released their right over the properties in favour of first appellant. According to the first respondent, there after as per an oral gift and also as Ext. A2 gift deed executed by the first appellant, item no. 5 of the plaint schedule properties was put in possession of first respondent and her sisters and thus she has been in possession of the properties and defendants have no manner of right or possession over the same. Contending that they are attempting to tress pass into the properties, a decree for injunction restraining them from tress pass was sought. Defendants in their written statement disputed the oral gift and Ext. A2 gift deed. According to defendants there was no gift either oral or documentary. It was contended that after Ext. B1 first respondent and her sister did not have any house to reside and as sought for by them, permission was granted to reside in the two houses situated in the property and they are thus in possession of 7 cents of item no. 5 of the plaint schedule properties and Ext. A2 is vitiated by undue influence, fraud and misrepresentation and they are taking separate steps to get Ext. A2 gift deed set aside. Contending that first respondent is not in possession of the property more than the 7 cents, it was contended that he is not entitled to the decree for injunction.

(2.) Learned Munsiff framed necessary issues. On the evidence of PW 1 and 2, DW 1 and 2, Exts. A1 and 2 and B1 to 7, learned Munsiff upheld the case of oral gift as well as Ext. A2 gift and finding that first respondent established possession of the entire plaint schedule properties granted a decree for permanent prohibitory injunction in respect of all the five items of properties as sought for. The decree was challenged before District Court, Palakkad by all the defendants in AS 75/1990. Learned District Judge on reappreciation of evidence held that there is no acceptable evidence to prove the oral gift. But the learned District Judge found that Ext. A2 gift deed is valid and is not vitiated as claimed by the defendants. It was also found that even though the oral gift in respect of the remaining 9 cents in item No. 5 of the plaint schedule properties was not established, evidence conclusively prove that first respondent has been in possession of the entire item No. 5 of the plaint schedule properties. Holding that defendants did not dispute the right and possession of the first respondent in respect of the item No. 1 to 4 of the plaint schedule properties, decree granted in respect of those properties was set aside as there was no necessity to grant a decree in respect of those properties. The decree for injunction granted in respect of the item no. 5 of the plaint schedule property was confirmed.

(3.) The second appeal is filed challenging the said modified decree of the learned District Judge, by defendants 1 and 2.