IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 RSA.No. 869 of 2009() --------------------- AS.19/2006 of ADDL.DISTRICT COURT, MACT,THODUPUZHA OS.85/2004 of SUB COURT, KATTAPPANA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- BULKIES, D/O.PEERU MOHAMMED, BISMILLA HOUSE, ROSAPOOKANDAM KARA, KUMILY VILLAGE, PEERUMADE TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENT/ RESPONDENT/DEFENDANT ----------------------------------- K.RAGINI, W/O.THANKAPPAN, D/O.GOURI AMMA, KURUVILA HOUSE, KUMILY VILLAGE, PEERUMADE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.869 OF 2009 --------------------------- DATED THIS THE 19TH DAY OF AUGUST, 2009 JUDGMENT Plaintiff in O.S.No.85/2004 on the file of the Sub Court, Kattappana is the appellant. This appeal is directed against the judgment and decree in A.S.No.19/2006 on the file of the District Court, Thodupuzha. The suit for declaration of title and injunction was dismissed by the trial court and confirmed in appeal. Hence, this Second Appeal. 2. It is the case of the plaintiff that on 15/3/1993 the then mortgagee assigned his mortgage right of the plaint schedule property by conditional sale to the plaintiff after receiving an amount of Rs.24,000/- from her. Pursuant to the agreement referred as mortgage deed, the plaintiff took possession of the plaint schedule property and started residence. It is the further case of the plaintiff that the defendant had lost possession of the plaint schedule property. On 24/4/1988 and -2- R.S.A.No.869/2009 after the expiry of one year from 24/4/1988 Abdul Khadar was in possession as the owner of the property. Thereafter, on 15/3/1993 the plaintiff had taken possession of the plaint schedule property and thus the plaintiff and her predecessor had acquired right over the plaint schedule property by adverse possession and limitation. Therefore, the suit was filed for declaration of title by adverse possession and limitation and also prayed for permanent prohibitory injunction against dispossession. 3. The defendant strongly opposed the relief claimed in the suit and denied the mortgage transactions alleged by the plaintiff and further contended that the mortgage agreement dated 15/3/1993 is a fabricated document. It is further averred that the plaintiff had borrowed an amount of Rs.25,000/- from the husband of the plaintiff, namely, one Amanulla on 16/5/1986 and executed a mortgage in his favour. The said Amanulla was residing in the building situated in the property along with the -3- R.S.A.No.869/2009 present plaintiff, who is none other than his wife. It is further stated that on 21/7/1987 the amount due to Amanulla i.e. Rs.25,000/- was paid back and the mortgage agreement was taken back. Amanulla agreed to hand over possession of the house within one week; but he failed to hand over possession of the same. Subsequently, he trespassed into some other portion of the plaint schedule property, filed O.S.No.111/90 and obtained an order of injunction against the defendant. In such circumstances, the defendant was compelled to file O.S.No.87/94 for recovery of possession of plaint schedule property. The said suit was decreed on 31/4/1996 and E.P.No.4/04 is pending for execution of the decree. The earlier order in E.P.was challenged before the Appellate Court and the Revisional Court, namely, the District Court and this Court. According to the defendant, all these proceedings are initiated and prosecuted only to protract the eviction proceedings initiated by him. Writ Petition was also filed before this Court. -4- R.S.A.No.869/2009 4. The trial court, after examining the oral evidence of PWs.1 and 2, DW-1, Exts.A1 to A3, B1 to B7, C1 and C1(a), accepted the contentions raised by the defendant and dismissed the suit. The trial court held that unregistered mortgage deed dated 16/5/1986 with Amanulla was redeemed after paying money. Ext.B4 is the said mortgage deed. The contentions of the husband of the plaintiff, namely, Amanulla in O.S.No.111/90 supported the contention of the defendant in this case. Sri Amanulla admitted that there was an agreement of mortgage between himself and the defendant and that he was in possession of the plaint schedule property. The trial court observed that in such circumstances the evidence adduced by the defendant clearly shows that what is stated by the plaintiff before the court is wholly false and cannot be relied upon, that the burden is on the plaintiff to show that she was in continuous possession of the property from 1989 onwards. But the contradictory evidence shows that the plaintiff has no consistent case. The trial court -5- R.S.A.No.869/2009 also examined the judgment and decree passed in O.S.No.87/94 filed by the present defendant against Amanulla for recovery of possession. The said decree and judgment has become final and the defendant had filed E.P. for executing the decree. When the execution proceedings are pending the present suit was filed by the wife of Amanulla as plaintiff for declaring her title contending that she had perfected title by adverse possession. The trial court also observed that the present suit filed at the said stage was only to protract the further proceedings in execution of the decree in O.S.No.87/94 and that the contention of the defendant about the alleged mortgage between PW-1 and Abdul Khader is an after thought and the circumstances and evidences revealed in this case clearly support the contention of the defendant. The trial court also held that the plaintiff has completely failed in proving adverse possession. 5. The very same contentions were re-agitated by the plaintiff in the appeal. The appellate Court also examined all the -6- R.S.A.No.869/2009 questions raised in the appeal. The Appellate Court agreed with the findings recorded by the trial court and dismissed the appeal. The appellate Court observed that the plaintiff has failed to establish her case. After perusing Exts.B1 to B6, it was held that the plaintiff was not in possession of the plaint schedule property and building, that if the plaintiff was in possession of the property, she would have been a party to O.S.No.111/90 or O.S.No.87/04 and that the allegation of the defendant that by instituting the suit in question the attempt of the plaintiff is only to delay the execution proceedings pending appear to me having sound footing. 4. I have examined the reasonings and findings entered by the courts below. The finding that the plaintiff has failed to prove her title and that the present suit is intended to defeat or delay the execution proceedings in O.S.No.87/94, cannot be assailed successfully. I do not find any ground to invoke this Court's jurisdiction under Section 100 of the C.P.C. No question -7- R.S.A.No.869/2009 of law much less any substantial questions of law arises for consideration in this appeal. In the result, the appeal fails and is dismissed. HARUN-UL-RASHID, Judge. kcv.