IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 330 of 2007(E)
1. MEENAKSHI K., WIFE OF LATE KUNJURAMAN,
... Petitioner
2. K.SUNDARESAN, OF -DO-
3. R.PAVITHRAN, OF -DO-
Vs
1. R.NEELAMBARAN, MALLASSERIL HOUSE,
... Respondent
2. S.SATHYABHAMA, POKAYIL JYOTHI BHAVAN,
3. K.BIJURAJ, SON OF SATHYABHAMA, DO.
4. K.JYOTHIRAJ, OF DO.DO.
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.Nos. 330 & 344 OF 2007
............................................
DATED THIS THE 24th DAY OF JULY, 2007
JUDGMENT
Defendants in O.S.666 of 1996 on the file of Munsiff Court,
Adoor who are the plaintiffs in O.S.597 of 1996 on the file of
Munsiff Court, Adoor are the appellants in R.S.A.330 of 2007.
First appellant therein who is the plaintiff in O.S.597 of 1996 is
the appellant in R.S.A.344 of 2007. First respondent in the other
appeal who is the sole defendant in tht suit is the respondent.
Appellant instituted O.S.597 of 1996 against first respondent
seeking a decree for permanent prohibitory injunction
restraining him from trespassing into the plaint schedule
property. Respondents in R.S.A. 330 of 2007 instituted O.S.666
of 1996 seeking a decree for declaration of their title. Plaint
schedule property in O.S.597 of 1996 is 67 cents in Survey No.
376/2 of Enath Village. Plaint schedule property in O.S.666 of
1996 after the amendment was 49 < cents. First plaintiff in that
suit is the defendant in O.S.597 of 1996.
2. Learned Munsiff, on the evidence of Pws 1 to 3, DW1 and
CW1 and Exts.A1 to A6, Exts.B1 and B2, and Exts.C1 to C3, as
per common judgment dated 11.8.2003, dismissed O.S.597 of
SA 330 & 344/2007 2
1996 and granted a decree in favour of respondents in O.S.666
of 1996. Appellants challenged the decree and judgment before
District Court in A.S.151 of 2003 and 152 of 2003. Learned
District Judge, on reappreciation of evidence, confirmed the
findings of learned Munsiff and dismissed both the appeals. They
are challenged in these second appeals.
3. Learned counsel appearing for the appellants was
heard. The argument of learned counsel is that appellnts could
not adduce sufficient evidence to prove the redemption and in
such circumstances, an opportunity has to be granted to
appellants to prove that the mortgage was redeemed as
contended by them.
4. On hearing learned counsel appearing for appellants, I
do not find any substantial question of law involved in the
appeal. Family of respondents admittedly mortgaged the
properties. Under Ext.A partition deed 87 cents which was part
of the property mortgaged was divided. 45 cents being the
northern extreme plot and southern 25 cents were alloted to first
respondent and his brother Karunakaran and middle 20 cents to
Kunjukali. Under Ext.A2 that 20 cents was exchanged with 20
SA 330 & 344/2007 3
cents on the northern extremity. As a result, first respondent
and Karunakaran obtained the southern 67 cents. Kunjukali
who got the northern 20 cents under Ext.A2 gifted mortgage
right over that property to her son Kunhiraman. First appellant
is the widow of Kunhiraman. Appellants contended that
Kunhiraman paid the mortgage money to Kunjukali in 1923 and
redeemed the mortgage. No evidence was adduced to prove that
the mortgage was ever redeemed. Though DW1 was examined
courts below found that he was not even born in 1923. It was
also found that even the alleged redemption was on the 30th year
of mortgage which itself was suspicious. There was no case
before the first appellate court that opportunity was not granted
to prove the redemption or that opportunity is to be granted. In
such circumstances at this stage, opportunity cannot be granted.
As no substantial question of law is involved in the appeals,
appeals are dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-