IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 RSA.No. 100 of 2009 --------------------------------- IA 1858/2007 IN AS.121/2007 of SUB COURT, PALA OS.16/2006 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. ABRAHAM, S/O.MATHAN, AGED 67 YEARS, VAZHAKKALAYIL HOUSE, (VATTAMALAPARAMBIL) PERUNNILAM KARA, POONJAR THEKKEKARA VILLAGE. 2. MARIAM, W/O.ABRAHAM, AGED 63 YEARS, VAZHAKKALAYIL HOUSE, (VATTAMALAPARAMBIL) PERUNNILAM KARA, POONJAR THEKKEKARA VILLAGE. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.T.V.VINU RESPONDENT/RESPONDENT/PLAINTIFF: A.V.ABRAHAM, AZHATHU HOUSE, PERUNNILAM KARA, POONJAR THEKKEKARA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.100 of 2009 -------------------------- JUDGMENT This Regular Second Appeal has been filed by the defendants in O.S.No.16/06 on the file of the Munsiff's Court, Erattupetta. Plaintiff is the respondent. 2. The plaintiff instituted the suit aforesaid for a decree for recovery of possession of the scheduled property and the building therein from the appellants/defendants with mesne profits at the rate of Rs.200/- per month. The appellants/ defendants contended that they are entitled to kudikidappu right in the scheduled property as the cost for construction of the building in the scheduled property is less than Rs.750/- and the dispute has to be referred to the Land Tribunal. Issue No.1 raised in the suit related to the question as to whether the appellants/defendants are kudikidappukars in the scheduled property and RSA 100/09 2 whether the question of kudikidappu right claimed deserves to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The said Issue No.1, which was considered as a preliminary issue, was found against the appellants/defendants by the trial court, which held that the right of kudikidappu as claimed by the appellants/defendants does not require to be referred to the Land Tribunal vide order dated 16.9.2006. 3. The case of the respondent/plaintiff alleged in the plaint was that he had put the appellants/ defendants in possession of the scheduled property and the building therein in February 1998 and they are residing there as permitted by him. The appellants/defendants did not dispute the title of the respondent/plaintiff over plaint schedule property and they also admitted that they were put in possession of the scheduled property by the respondent/plaintiff. Their case is that the RSA 100/09 3 respondent/plaintiff put them in possession of the scheduled property in 1996 and not in 1998 and then the property was lying vacant and the building was being put up in the property by them on permission from the respondent/plaintiff. The respondent/ plaintiff produced the building tax receipt and ownership certificate and those were marked as Exhibits A3 and A5 before the trial court. The appellants/defendants had no case that the building in the scheduled property has been assessed by the Panchayat in their name. 4. The trial court observed that there was a building in the plaint schedule property as on the date of Exhibit B1 and that the claim of the appellants/defendants that the respondent/plaintiff had executed the said document for the purpose of availing funds from the Panchayat for construction of the building in the scheduled property by the defendants is not acceptable. However, on consideration of the entire evidence adduced at RSA 100/09 4 trial, which consisted of oral evidence of PWs 1 to 4 and DWs 1 and 2 and documentary evidence Exhibits A1 to A12 and B1 and B2 and Exhibit X1, the trial court decreed the suit in part directing the appellants/defendants to surrender vacant possession of the scheduled property and the building therein to the respondent/plaintiff within a period of two months and that on default, the respondent/plaintiff shall be entitled to recover vacant possession of the scheduled property and the building therein through process of court evicting the appellants/defendants and also allowed the respondent/plaintiff to realise from the appellants/ defendants mesne profits at the rate of Rs.200/- per month from the date of expiry of two months stipulated for surrender of the scheduled property and the building therein. 5. Though copy of the above judgment was received by the appellants/defendants in time, they did not prefer appeal in time and there occasioned RSA 100/09 5 a delay of 220 days in filing the appeal. The appeal so filed before the first appellate court, namely, the Sub Court, Pala, is A.S.No.121/07. I.A. No.1858/07 was also filed therein for condonation of the said delay of 220 days assigning the reason that from April 2007 to November 2007 the appellants/defendants were undergoing treatment for chickunguniya and there was no wilful laches on their part in filing the appeal belatedly. The respondent/plaintiff filed objection resisting the application contending that the reason stated for condonation of delay is not true. After the respondent/plaintiff filing objection, the appellants/ defendants produced a medical certificate dated 1.4.2008 wherein, what was certified was that the appellants/defendants were undergoing treatment for the period from 25.4.2007 to 25.11.2007 due to viral fever and chikunguniya. Apart from producing the said medical certificate, none of the appellants/defendants entered the witness box to RSA 100/09 6 swear to their case nor did they examine the Doctor who issued the medical certificate dated 1.4.2008. The result is that there was absolutely no evidence on the side of the appellants/defendants to prove that they were prevented by sufficient cause from filing the appeal in time. The lower appellate court dismissed the said application seeking for condonation of delay and consequently, the appeal also was dismissed as barred by limitation. It is the above dismissal that is assailed before me by the appellants/defendants. 6. It is vehemently contended before me by the learned counsel for the appellants/defendants that the first appellate court should have condoned the delay of 220 days in filing the appeal, especially in view of the medical certificate produced certifying that the appellants/defendants were suffering from chikunguniya. A medical certificate is not evidence by itself unless the Doctor, who issued the certificate, is also examined. Further, RSA 100/09 7 it is worthy to note that even the appellants/ defendants did not care to enter the witness box to swear to their case and to stand the test of cross- examination. Hence, on the basis of an application filed seeking for condonation of delay of as much as 220 days, the court below refused to condone the delay and consequently, the appeal was also dismissed. There is absolutely no merit in the contention that the appeal should not have been disposed of without considering it on merits condoning the delay in filing the appeal. There is no question of law and much less, any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine. 16th February, 2009 (K.P.Balachandran, Judge) tkv