IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 SA.No. 975 of 1996(G) -------------------------------- OS.230/1993 of ADDL. MUNSIFF COURT, KOCHI AS.44/1995 of ADDL. SUB COURT,KOCHI .................... APPELLANT/PETITIONER: -------------------------------------- JAVERILAL, S/O.MADHAVADAS, RESIDING AT CC.8/1906, NAVANIT KRISHNA MANDIR BUILDING, PALACE ROAD, MATTANCHERY, KOCHI-2. BY ADV. SRI.P.RADHAKRISHNAN, SMT.K.MEERA. RESPONDENT(S): -------------------------- 1. PRATAP SINGH, S/O.MADHAVADAS PUJARA, RESIDING AT CC.8/1906, NAVANIT KRISHNA MANDIR BUILDING, PALACE ROAD, MATTANCHERY, KOCHI-2. NOW RESIDING AT 11/375, CONVENT ROAD, KOZHIKODE-32. 2. THARABEN, S/O.PRATAP SINGH, RESIDING AT CC.8/1906, NAVANIT KRISHNA MANDIR BUILDING, PALACE ROAD, MATTANCHERY, KOCHI-2. NOW RESIDING AT 11/375, CONVENT ROAD, KOZHIKODE-32. BY ADV. SRI.K.RAJAGOPALAN, SRI.SUDHIR GOPI, SRI.N.C.JOSEPH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 975 of 1996(G) ORDER ON C.M.P. NO.2166/1996 IN S.A. NO.975/1996 DISMISSED 19/05/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 975 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of May, 2010. JUDGMENT O.S. 230 of 1993 was instituted before the Munsiff's Court, Kochi seeking a decree for permanent injunction against the defendants. The plaintiff and the first defendant are brothers. The second defendant is the sister in law of the plaintiff. 2. According to the plaintiff the property involved in the proceedings belonged to first defendant's mother, namely late Smt. Laxmi Bai. She died on 25.11.1989. It is claimed that she was the tenant of the premises. It is alleged that consequent on her death tenancy right devolved on her heirs. A Will was set up, whereby the plaintiff claimed that as per the Will he had exclusive right over the suit premises. But he relied on the fact that he is the legal heir of his mother and sought relief on that ground. The defendants prevented him S.A.975/1996. 2 from entering the premises and the defendants have no right to do so. He being a co-tenant is entitled to exercise his acts of possession. 3. The suit was resisted by the defendants. They disputed that the tenancy right belonged to late Smt. Laxmi Bai and claimed that the tenant is none other that the first defendant. Several facts are stated in the written statement, which are not very relevant for the present purpose. It is contended that the plaintiff had no manner of right to enter into the plaint schedule property and he had no manner of right over the same. The allegations in the plaint are without basis and has been made with ulterior motive. 4. The trial court raised necessary issues for consideration. The evidence consists of Exts. B1 series and B2 from the side of the defendants. For reasons best known to the plaintiff, he chose to adduce no evidence at all. 5. The trial court found that none of the allegations in the plaint are substantiated and the plaintiff S.A.975/1996. 3 chose to adduce no evidence at all in support of his claim. The claim of the plaintiff that his articles in the premises had been thrown away by the defendants and that he had preferred a complaint before the Judicial Magistrate of the First Class-II, Kochi was not established. No evidence whatsoever was produced by the plaintiff in support of his claim. On the other hand, the first defendant had gone into the box and stated his case. He has produced rent receipts to show that he had been paying rent from 1964 onwards. In the light of the documents produced by the defendants, the trial court was inclined to accept the case put forward by the defendants and dismissed the suit. The plaintiff carried the matter in appeal. The appellate court on an independent evaluation of the materials before it, concurred with the trial court and dismissed the appeal. 6. Learned counsel for the appellant contended that the a prayer was made at the appellate stage for remand of the case and an opportunity ought to have been S.A.975/1996. 4 given to the appellant to substantiate his claim. The court below was not justified in declining to grant the said prayer. 7. Though it may look harsh, on a closer scrutiny of the materials on record, it can be seen that both the courts below were justified in dismissing the suit. There is no justification for the plaintiff in not adducing evidence in support of the plaint allegations. He remained satisfied by making wild allegations and made no efforts to substantiate the claims. Even going by the plaint, the defendant is a co- tenant. True, if it is so, he has a right of possession. It was for him to establish the same. It is significant to notice that his claim to the suit property is based on a Will. But on the other hand he is also claiming as a co-tenant. Neither of these allegations was established. It was in those circumstances that the trial court was constrained to dismiss the suit, which was confirmed in appeal. No error whatsoever can be found in the judgment and decree of the courts below. The courts below have appreciated the evidence on record and have come to a conclusion of their S.A.975/1996. 5 own. It is not shown that the conclusions drawn are either perverse or not warranted on the materials on records. No substantial question of law arises for consideration in this Second Appeal. Accordingly this Second Appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A.975/1996. 6 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 975 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 19.05.2010