IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 SA.No. 365 of 1998(B) -------------------------- AS.105/1994 of PRL.SUB COURT,THALASSERY OS.338/1991 of MUNSIFF COURT, THALASSERY .................... APPELLANT(S): RESPONDENT/PLAINTIFF ----------------------------------------------------------- THOTTATHIL CHEEROOTTY, D/O. KORAN, AGED 54 YEARS, OCCUPATION NIL, RESIDING AT PATTIAM AMSOM DESOM, THALASSERY TALUK. BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.SHAJI P.ABRAHAM RESPONDENT(S): APPELLANT/DEFENDANT -------------------------------------------------------------- THOTTATHIL KUNHIRAMAN, S/O. KORAN, AGED 52 YESIDING AT MOKERI AMSOM, DESOM, P.O. MAKOOD PEEDIKA, THALASSERY TALUK. R1 BY ADV. SRI.P.T.ANTONY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON TH SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. 1027/1998 IN S.A. NO.365/1998 DISMISSED 24/01/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ---------------------------------- S.A.No. 365 of 1998 --------------------------------- Dated this the 24th day of January, 2011 JUDGMENT Appellant is the plaintiff in O.S.No.338/1991 before the Munsiff's court, Thalassery. The suit was one for injunction. The plaintiff claimed right over the suit property by virtue of Ext.A1 dated 21.07.1979. It is pointed out that the defendant is making unnecessary claims over the plaint schedule property and the three coconut trees on the northern side of the plaint schedule property. The defendant tried to pluck coconuts and the attempt was resisted by the plaintiff. The defendant had no title or possession over the plaint schedule property. Apprehending further trouble from defendant suit was filed. 2. The defendant resisted the suit. It was pointed out that the property on the northern side of the plaint schedule property is paddy lands. At the time of planting coconut sapling land was converted as chira. On either side of the chira, there are water channels. Later, the defendant obtained in his property as per Ext.B1 and also he had purchased another item of property from one Sukumaran, who got it from Kalyani. Disputing allegation in S.A.No. 365 of 1998 2 the plaint, defendant prayed for a dismissal of the suit. 3. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3. The defendant examined as DW1 and Exts.B1 to B4 were marked. Exts.C1 to C4 are the commissioner's report and plan. 4. The trial court on an appreciation of the evidence came to the conclusion that the plaintiff had prima facie established his case and granted a decree in his favour. The defendant went up in appeal as A.S.105/1994 before the Sub Court, Thalassery. The Sub Court on a re-evaluation of the evidence came to the conclusion that the plaintiff has not succeeded in establishing possession over the plaint schedule property and allowed the appeal. 5. Notice has been issued on the following substantial questions of law: 1. Has not the lower Appellate Court committed a serious illegality impropriety and irregularity in the manner in which the point for consideration was raised in the appeal and also in disposing of the same without properly adverting to the vital issues in question ? S.A.No. 365 of 1998 3 2. Has not the Lower Appellate Court committed a palpable error in over looking the arithmetical miscalculation as regards the extent of plots in question, thereby rendering the finding illegal ? 3. Has not the Lower Appellate court committed a serious illegality in not considering the documents of title of the parties in their proper perspective in order to arrive at a proper and legal conclusion. 4. Can the Decree and Judgment of the Lower Appellate Court be sustained in the eye of law in as much as the learned appellate judge has not considered the vital aspect of possession which is the one and only primary issue to be decided in a suit for injunction. 6. The learned counsel appearing for the appellant contended that the lower appellate court was not justified in reversing the finding of the trial court and in setting aside the decree and judgment passed in favour of the plaintiff. Said finding was based on the commissioner's report and plan as well as the other items and evidence in the case. S.A.No. 365 of 1998 4 7. Per contra, it is contended on behalf of the respondent that the trial court had not properly evaluated the evidence in the case and had granted a decree simply based on conjunctures and surmises. However, the lower appellate court had come to the conclusion that the plaintiff had not succeeded in establishing possession over the disputed property. It is therefore, pointed out that no interference is called for with the lower appellate court judgment and decree. 8. The main item of evidence is commissioner's report and plan. Ext.C4 plan prepared by the commissioner shows for the measurements of the properties obtained by the parties and also improvements in the property. The disputed portion in Ext.B3 is 0.773 cents in extent. The appellate court found X Y to be boundary between the two properties. The commissioner had also reported that at the place claimed to be the boundary of the properties by the plaintiff, there was no visible mark. 9. Even going by the report of commissioner as things now stand the plaintiff possess land in excess of than what of is covered by his document of title. The report of the commissioner says as to why the X Y line appears to be the boundary between S.A.No. 365 of 1998 5 the two properties. The trial court went on the basis of some inconsistency between the written statement and the contents of the commissioner's report. It is interesting to note that the trial court does not find that the disputed portion is taken in by the document of title of the plaintiff. The report of the commissioner shows that properties were measured and X Y line appears to be the boundary separating the properties. 10. The finding of the lower appellate court seems to be based on the evidence on record and does not appear to be perverse or unwarranted as unjustified in law or on facts. The mere fact that a different view may be possible is not a ground to interfere in exercise of power under Section 100 of CPC. No question of law, much less any substantial question of law arises for consideration in this second appeal. This appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln