IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RSA.No. 893 of 2008(F) --------------------- AS.26/2006 of SUB COURT,KOZHIKODE OS.612/2004 of ADDL. MUNSIFF COURT -I, KOZHIKODE .................... APPELLANTS/RESPONDENTS/DEFENDANTS:- --------------------------------------------------- 1. NAMBOORIKANDY KELUKUTTY, S/O. VELU, NAMBOORIKANDY, KAKKODI MUKKU, KIZHAKKUMMURI AMSOM & DESOM, KOZHIKODE. 2. NAMBOORIKANDY ANIL, S/O. KELUKUTTY, -DO- -DO- 3. NAMBOORIKANDY SUDHAKARAN, S/O. KEERAN, -DO- -DO- BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/APPELLANT/PLAINTIFF:- ------------------------------------------ SIVADASAN, S/O. VELAYUDHAN, A/612, 'SRILAKSHMI', MUPPATTUPARAMBA, KUMARASAMY, THAMARASSERY AMSOM & DESOM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 893 of 2008 ========================= Dated this the 22nd day of January, 2009. JUDGMENT The three defendants in O.S. No. 612 of 2004 on the file of the Additional Munsiff's Court-I, Kozhikode are the appellants in this Second Appeal. The said suit instituted by the respondent herein was one for a perpetual injunction restraining the three defendants from trespassing upon the plaint schedule property admeasuring 3.65 cents which the plaintiff obtained as per Ext.A1 sale deed dated 30.05.1998. After the purchase, the plaintiff had constructed a house thereon. According to the plaintiff, the defendant who have no property in the vicinity of the plaint schedule property attempted to trespass upon the plaint schedule property. Hence the suit. 2. The appellant resisted the suit contending inter alia that the plaintiff was not in possession of the entire plaint schedule property, that the plaintiff had trespassed into a portion of the northern property which is in the possession of a Sarppakavu Committee which maintains a Sarppakavu, that the plaintiff and defendants were members of the Sarppakavu Committee which was maintaining the Sarppakavu, that on finding that the plaintiff had encroached into a portion of the Sarppakavu and had put up R..S.A. No. 893/2008 : 2 : structures thereon, he was directed to surrender the encroached portion whereupon he resigned from the committee and instituted the present suit. During the stage of trial, the plaintiff examined as PW1, deposed that he had not instituted the suit against the Sarppakavu Committee, that the suit was against the three defendants who had attempted to trespass upon the plaint schedule property. 3. As per judgment and decree dated 30.11.2005, the learned Munsiff found that the plaintiff was in possession of the plaint schedule property but dismissed the suit holding that the plaintiff was guilty of suppression regarding the deliberations of the Sarppakavu Committee and his resignation from the same etc. The learned Munsiff was of the view that the plaintiff did not come to court with clean hands. 4. On appeal preferred by the plaintiff, the lower appellate court as per judgment and decree dated 220.03.2008 reversed the decree passed by the trial court and decreed the suit. Hence this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Second Appeal:- 1) Whether the lower appellate court correct in interfering with the discretionary power exercised by the trial court by dismissing the injunction suit for the reason that, there is suppression of material facts? R..S.A. No. 893/2008 : 3 : ii) Whether the lower appellate court judgment is vitiated because of misreading of facts and evidence and non-application of mind? Iii) Whether the lower appellate court correct in saying that, in a suit for injunction, if the question of possession is found in favour of the plaintiff, it need not be looked into in an appeal filed by the plaintiff, without any cross objection? 6. The learned counsel appearing for the appellants reiterated the contentions of the defendants before me. 7. The lower appellate court has rightly held that the trial court after having found that the plaintiff was in possession of the plaint schedule property, was not justified in dismissing the suit for the alleged suppression of the Sarppakavu Committee and the plaintiff's resignation from the said Committee etc. The lower appellate court has also agreed with the trial court that the plaintiff was in possession of the plaint schedule property as was reported by the Advocate Commissioner deputed by the trial court as well. 8. The question as to whether the plaintiff had encroached into the northern property where the Sarppakavu is installed and the deliberations of the Sarppakavu Committee of which the plaintiff was a member etc. were foreign to the scope of the present suit as rightly observed by the lower appellate court. If the plaintiff had encroached into the northern property where the Sarppakavu is installed, it was for the persons managing the Sarppakavu to take R..S.A. No. 893/2008 : 4 : steps against the plaintiff. That had nothing to do with the present suit. The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. This will not preclude the appellant from taking steps against the plaintiff in case they are able to prove that the plaintiff has trespassed into the property situated to the north of the plaint schedule property and which does not belong to him. Dated this the 22nd day of January, 2009. V. RAMKUMAR, JUDGE. rv R..S.A. No. 893/2008 : 5 : R..S.A. No. 893/2008 : 6 :