IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 RSA.NO. 1201 OF 2009() ---------------------- AS.52/2003 OF II ADDL. DISTRICT COURT, PALAKKAD OS.661/1990 OF ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS – APPELLANTS - PLAINTIFFS 3 TO 4: ------------------------------------------------ 1. AANI, W/O. LATE SOOSIYAPPAN PUDUSSERY AMSOM CHANDRAPURAM WALAYAR DESOM P.O., PALAKKAD 2. ALPHONSAMARI (MINOR) D/O. SOOSIYAPPAN, BY GUARDIAN MOTHER 1ST APPELLANT AANI. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): DEFENDANTS/PLAINTIFF NO.5 ---------------------------------------- 1. CHELLAMUTHU KOUNDER, S/O.MAYILCHAMI, PULINKAD, WALAYAR, PUDUSSERY,EAST VILLAGE, PALAKKAD. 2. VELLAPPAN ALIAS DORAISWAMY, S/O. MAYILCHAMI KOUNDER, RESIDING AT DO.DO. 3. PRECOT MILLS, CHANDYANKALAI, PALAKKAD BY EXECUTIVE OFFICER (PERSONNEL) PRABHAKARAN. 4. MARIAYAMMA, W/O. LATE SOOSIYAPPAN, CHANDRAPURAM, WALAYAR. 5. CHINNAPPAN, S/O. PAZHANICHAMI KOUNDER, CHANDRAPURAM, WALAYAR, PUDUSSERY AMSOM, PALAKKAD DISTRICT. 6. RAYAPPAN, S/O. AROGYAMANIAKKARAN, PUDUSSERY AMSOM AND DESOM, PALAKKAD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1201 OF 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of December, 2009 J U D G M E N T --------------------- Against concurrent finding entered by courts below rejecting the claim of appellants over the disputed property this Second Appeal is preferred. Appellants claimed that suit property was purchased by their father in the year 1952 in the name of his daughter, the late Kanikkamariyumma and after the death of father, appellants are in possession and enjoyment of the property. Respondents own property on the adjacent east, west and south and on the apprehension that they are attempting to trespass into the suit property appellants laid the suit for prohibitory injunction. Respondents denied that property was acquired by the father of appellants. Respondents claimed that they are in possession of the suit property and disputed the identity of the property claimed by the appellants. Though an issue whether appellants could raise a plea of binami transaction was raised learned Munsiff considered the same as a preliminary issue and held that in a suit for injunction third parties could not resist such a contention of appellants. After trial learned Munsiff found that appellants were not able to prove the claim made by them and consequently dismissed the suit. Appellants challenged the judgment and decree in appeal. At R.S.A. NO.1201 OF 2009 -: 2 :- the time of hearing judgment of this Court in S.A.No.76 of 1994 arising from O.S. No.213 of 1983 also filed by the appellants against respondents was produced before the first appellate court. First appellate court referring to that judgment observed that the plea of binami transaction has been found against by this Court. First appellate court agreed with the trial court regarding identity and possession of the property and confirmed the judgment and decree. That judgment and decree are under challenge in this Second Appeal. 2. Substantial question of law urged for a decision are whether courts below are justified in entering specific finding regarding title and identity and whether finding of courts below that Advocate Commissioner has not identified the suit property are legally correct. Learned counsel for appellants contends that courts below have not referred to the disputed issue, evidence on record and come to the correct conclusion. 3. Learned counsel has given to me for perusal a copy of the judgment in S.A. No.76 of 1994 where in paragraph 9 it is stated that since appellants did not seek a decree for declaration that Ext.A1 is a binami transaction and in the nature of the suit it is not necessary to consider that question and that appellants are not entitled to a decree on the basis of Ext.A1. Suit essentially is one for injunction based on R.S.A. NO.1201 OF 2009 -: 3 :- possession. I have gone through judgment of the trial court and I find that trial court has also proceeded on that basis though in paragraph 13 of the judgment there is an observation that there is no evidence to show title and possession of the property in favour of the appellants. But I find that the issue raised does not include one relating to title of the parties over the suit property. Going by the judgment of trial court essentially the suit is for injunction and dismissal is on the finding regarding identity and possession claimed by the appellants. First appellate court also found that appellants were not able to prove the possession claimed by them. 4. On the question whether appellants were able to prove possession and finding entered by the courts below in that regard appellants rely on Ext.A1, the document of title. But in Ext.A1, northern boundary of property is shown as Bunk road. Exhibit C2, survey plan prepared by the Advocate Commissioner states that property comprised in Sy.No.1428/1 is situated towards north of the National Highway. Suit property is 70 cents comprised in Sy.No.1428/1. According to P.W.1 National Highway came into existence only about 15 years back. He is sure that no portion of the suit property is situated on the north of the National Highway. From the above courts below observed that identity of the property is not R.S.A. NO.1201 OF 2009 -: 4 :- properly proved. Exhibit A1 does not stand in the name of the father of appellants. There is no other document to show that appellants or their father is or had been in possession of the suit property. On the other hand respondents have produced documents which supported their case. It is after consideration of the evidence that courts below entered finding against appellants as to identity and possession of the suit property. That finding being based on appreciation of evidence no substantial question of law is involved for a decision in this Second Appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1201 OF 2009 -: 5 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 1201 OF 2009 =================== J U D G M E N T 8TH DECEMBER, 2009