IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 RSA.No. 362 of 2010() --------------------- AS.77/2006 of SUB COURT, KASARAGOD OS.170/2005 of PRINCIPAL MUNSIFF COURT, KASARAGOD .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------- 1. ASHOKAN, S/O. MADHAVAN, NEAR MAHALASA TEMPLE, HARIJAN LADIES HOSTEL ROAD, ANANGOOR, KASARAGOD. 2. UMESHA, S/O. MADHAVAN, NEAR MAHASALA TEMPLE, HARIJAN LADIES HOSTEL ROAD, ANANGOOR, KASARAGOD. BY ADV. SRI.V.V.ASOKAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------- SHALINI, W/O. SATHISH ADAPA, REPRESENTED BY HER POWER ATTORNEY HOLDER K. VASANTHA SHETTY, NADUHITHLU, ANANGOOR, KASARAGOD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.362 of 2010 -------------------------------------- Dated this the 9th day of April, 2010. JUDGMENT Second Appeal is brought up by the defendants in O.S.No.170 of 2005 against whom there is a decree for prohibitory injunction against trespass into the suit property as confirmed by the first appellate court in A.S.No.77 of 2006. According to the respondent/plaintiff, plaint A and B schedule properties belonged to Ramayya Shetty as per Ext.A1, partition deed dated 24.01.1962 and on his death it devolved on his legal heirs including the respondent. While so, respondent filed O.S.No.50 of 1980 against other legal heirs for partition and separate possession of her share and plaint A and B schedule properties were allotted and delivered over to her on 28.07.1990. Respondent stated that plaint B schedule was not separately stated in the final decree as it lay contiguous with the rest of the property allotted and delivered over to her and it remained as a compact plot. Apprehending trespass by the appellants she filed the suit. Appellants contended that description of plaint B schedule is not correct and that as per sale deed dated 07.06.1963 their father, Madhavan got title and possession of plaint B schedule and other items. On the death of the father it devolved on the appellants and they are in possession and enjoyment of the said property. Property comprised in survey No.214/8 formed part of that property. It is the contention of the appellants that after getting an exparte order of injunction in the present case respondent introduced a fence to bound her RSA No.362/2010 2 property. Learned Munsiff observed that this being a suit for injunction based on possession and court fee is not paid under Section 27 (a) of the Court Fees and Suits Valuation Act it is not necessary to go into the issue regarding title and the case could be decided based on the possession claimed by the parties. Referring to the evidence on record learned Munsiff found that respondent is in possession of the suit property and accordingly granted decree in her favour. That was confirmed by the first appellate court. Hence the Second Appeal urging by way of substantial question of law whether courts below are right in law in going into the issue of title and in granting relief in favour of the respondent. 2. Learned counsel contended that even going through the averments in the plaint it is not as if respondent is claiming title over plaint B schedule. Learned Munsiff has explicitly stated that the issue regarding title is not being considered (for the reasons stated above) and the issue regarding regarding possession is enquired into. It is based on evidence on record that it is found that respondent is in possession of the suit property and decree was granted in favour of respondent. That view has been confirmed by the first appellate court. 3. So far as the dispute regarding possession is concerned Ext.A1 is the assignment deed in favour of Ramayya Shetty, predecessor-in-interest of the RSA No.362/2010 3 respondent. Ext.A2 is the certified copy of the final decree in O.S.No.50 of 1980 and Ext.A3 is the copy of report of Amin in E.P.No.55 of 1990 in that case. In Ext.A1, item No.2 of A schedule is the property comprised in resurvey No.214/9 (old survey No.214/3A), extent being 1.16 acres. Its western boundary is the property comprised in survey No.214/3A-1 (new survey No.214/8). It is pertinent to note that appellants are claiming possession of the property comprised in survey No.214/8. In the plaint, it is stated that the disputed B schedule is part of plaint A schedule coming in item No.2 of A schedule of Ext.A1. The Advocate Commissioner has inspected the property on the date of suit (17.06.2005) at about 2 p.m. and found that the property admittedly belonging to appellants is situated in a lower level than plaint B schedule property by about four feet and that separating those properties there was a well formed fence. There was no other demarcation in between the property of appellants and respondent. Learned Munsiff has stated that in so far as the Advocate Commissioner could find a well formed fence in between plaint B schedule and property admittedly belonging to the appellants on the very date of the suit at about 2 p.m. the contention of appellants that after getting interim order of injunction respondent introduced the fence cannot be believed. It is on the evidence on record that courts below found possession in favour of the RSA No.362/2010 4 respondents. That is a finding based on evidence on record and involved no substantial question of law. I must also bear in mind that no finding has been entered by the courts below regarding title. Resultantly Second Appeal fails. It is dismissed in limine. I.A.No.889 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks