IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 RSA.No. 1051 of 2008() ---------------------- AS.63/2004 of I ADDL.SUB COURT,TRIVANDRUM OS.3686/1989 of PRL.M.C.,TRIVANDRUM .................... APPELLANTS/PLAINTIFF & ADDL.PLAINTIFFS 2 TO 8 ---------------------------------------------------------- 1. THANKAPPAN, S/O.MUTHUSWAMY, RESIDING AT VAYAL NIKATHIYA PUTHEN VEEDU, NEAR RESERVE BANK OF INDIA, PALAYAM, THIRUVANANTHAPURAM. 2. R.BABY, W/O.LATE THANKAPPAN, RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 3. THANKAPPAN SELVAN, S/O.LATE THANKAPPAN, RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 4. THANKAPPAN SANTHOSH, S/O.LATE THANKAPPAN RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 5. BABY SUBHA, D/O.LATE THANKAPPAN, RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 6. BABY SANTHI, D/O.LATE THANKAPPAN, RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 7. THANKAPPAN SATHYDAS, S/O.LATE THANKAPPAN RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. 8. BABY SUBHARANI, D/O.LATE THANKAPPAN, RESIDING AT T.C.14/1404, PALAYAM, THIRUVANANTHAPURAM. THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SMT.SHIRMILA. C.S. SRI.MAHESH ANANDAKUTTAN RSA.No. 1051 of 2008 2 RESPONDENTS: RESPONDENTS/DEFENDANTS & ADDL.3RD DEFENDANT ------------------------------------------------------------------------------- 1. M.FELICITY GEORGE, D/O.GEORGE CHANDRASENAN, RESIDING AT T.C.14/1778,THODIYIL HOUSE, NANDAVANAM ROAD, RESERVE BANK OF INDIA JUNCTION, THIRUVANANTHAPURAM. 2. GEORGE CHANDRASENAN, (DIED) RESIDING AT T.C.14/1778,THODIYIL HOUSE, RESERVE BANK OF INDIA JUNCTION, THIRUVANANTHAPURAM. 3. MUTHUSWAMY SREEDHARAN, VAYALNIKATHIYA PUTHEN VEEDU, NANDAVANAM ROAD, PALAYAM WARD, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------- R.S.A.No.1051 of 2008 --------------------------------- Dated this the 20th day of July, 2009 JUDGMENT The plaintiffs 2 to 8 in O.S.No.3686 of 1989 on the file of the Principal Munsiff's Court, Thiruvananthapuram are the appellants. This appeal arises against the judgment and decree in A.S.No.63 of 2004 on the file of the First Additional Sub Court, Thiruvananthapuram. The suit is filed for permanent prohibitory injunction restraining the defendant from forcibly evicting the plaintiffs from the plaint schedule property or from trespassing into the plaint schedule property and from committing waste therein. Subsequently the plaintiff amended the prayer portion by which he deleted the prayer portion relating to the decree against the defendant from trespassing into the plaint schedule property. The trial court dismissed the suit and confirmed in appeal. Hence, the second appeal. 2. The extent of plaint schedule property is 1.746 cents. The said extent along with 1.5 cents totaling to 3.246 cents of land is lying on the North-Western portion of a larger extent having 53 cents. It is the plaintiffs’ case that they are in possession of 3.246 cents touching the North-Western portion of R.S.A.No.1051 of 2008 2 a larger extent having 53 cents. It is further stated that the area of 1.5 cents out of 3.246 cents is lying as a single block. The plaintiff has constructed a hut therein and is in occupation of the same. The remaining area of 1.746 cents (plaint schedule property) on the eastern side of the plot of 1.5 cents is lying as a separate block. He has further stated that he is in hostile possession of the plaint schedule property against the owner of the property who is none other than the second defendant. The plaintiff further contended that he had purchased 1.5 cents of land referred above by a sale deed from the second defendant. The 3rd defendant who is the brother of the original plaintiff, trespassed upon and occupied the hut claiming that he is a kudikidappukaran. It is the case of the plaintiff that the 3rd defendant after occupying the hut attempted to trespass upon the plaint schedule property subsequent to the dismissal of his kudikidappu application. 3. Fifty-three cents mentioned in the plaint originally belonged to second defendant by virtue of partition deed of R.S.A.No.1051 of 2008 3 1970. Out of the said extent, the second defendant sold an area of 1.5 cents to the original plaintiff in 1982. The second defendant also executed a sale deed in respect of another 5 cents in favour of the plaintiff and his wife as per a sale deed of 1984 and the remaining property was in the undisputed possession and enjoyment of the second defendant. Subsequently in 1984, the second defendant executed a settlement deed in favour of the first defendant and hence the first defendant is in exclusive possession and enjoyment of the property. The said defendants further contended that the purpose of filing this suit is with an intention to grab a portion of the property lying adjacent to 1.5 cents of property sold to the original deceased plaintiff. The original plaintiff had neither got title to 3.246 cents of property nor the first defendant recognized any right of the plaintiff over the said property. The third defendant also filed written statement denying the title and possession of the original plaintiff and his predecessors who are the additional plaintiffs in the suit. 4. Before the trial court PWs.1 and 2 were examined on R.S.A.No.1051 of 2008 4 the side of the plaintiffs and marked Ext.A1. DW1 was examined on the side of defendants and Exts.C1 and C1 (a) to (c)are marked as court exhibits. 5. The trial court examined in detail the respective contentions raised by the parties. The trial court held that on the basis of pleadings and evidence, that the original plaintiff was residing in the hut situated in 1.5 cents and the title of the original plaintiff regarding the said extent has been admitted by contesting defendants 1 and 2. The trial court also held that the 3rd defendant has no case that he has possession over the plaint schedule property as it formed part of larger extent possessed by defendants 1 and 2. 6. The trial court held that both the original plaintiff and his successors who are the additional plaintiffs failed to prove possession over the plaint schedule property. The commissioner has measured the property and identified the plaint schedule property and the 1.5 cents lying on the western side of the plaint schedule property. The trial court rightly held that the interested testimony of PW1 is not sufficient for the plaintiff to R.S.A.No.1051 of 2008 5 establish their possession over the plaint schedule property and neighboring property having an extent of 1.5 cents totaling 3.246 cents and positively held the plaintiffs have failed to prove possession over the property. The appellate court also on the basis of the evidence reached the very same conclusions and held that the interested testimony of PW1 is not supported by any other materials and that there is nothing to show that when and how the deceased plaintiff came into possession of the entire extent of 3.246 cents including the plaint schedule property. 7. In second appeal the plaintiffs challenged the dismissal of the suit and the confirmation by the appellate court. I have examined the contentions of the counsel by the appellant and findings and conclusions arrived by the courts below in details. I find that the findings entered by the court below are solely based on the pleadings and evidence and the reasons stated for non-suiting the plaintiff could not be entertained in the second appeal for the sole reason that the findings are purely based on facts, evidence and circumstances. I find no sustainable grounds urged for invoking this court jurisdiction R.S.A.No.1051 of 2008 6 under Section 100 of C.P.C. There is no question of law much less any substantial question of law arises for consideration in this appeal. The appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.