IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 474 of 2000(F) --------------------- AS.63/1998 of PRINCIPAL SUB COURT,ALAPPUZHA OS.487/1995 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT(S): -------------- ANNAMMA JOHN,W/O JOHN, AGED 67 YEARS, RESIDING IN PUTHENPURAKKAL HOUSE, SOUTH ARYAD MURI, ARYAD SOUTH VILLAGE BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.P.J.JOSEPH & SRI.M.D.SASIKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA 2. THE DEPUTY TAHASILDAR (REVENUE RECOVERY) AMBALAPUZHA TALUK. 3. THE VILLAGE OFFICER, ARYAD SOUTH VILLAGE. R1 TO R3 GOVERNMENT PLEADER SRI.REVIKRISHNAN P.K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON 08/07/2011 DELIVERED THE FOLLOWING: kkj P.BHAVADASAN .J - - - - - - - - - - - - - - - - - - - - - - - S.A.No.474 of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08th day of July, 2011 J U D G M E N T The plaintiff whose suit was dismissed, which was confirmed in appeal, is the appellant. 2.The suit was against revenue recovery proceedings. The claim was in respect of movables. The plaintiff claimed that movables in the building No.AMCW111/1214 belonged exclusively to plaintiff which she obtained as per the will of her grandfather. For amount due from the sons of the plaintiff , the plaintiff has got reliable information that the defendants are attempting to move against the movables which are possessed by the plaintiff. They have no right to do that. Hence the suit. The defendants resisted the suit on the contention that the suit is not maintainable as there are no movables belonging to the plaintiff. It is also pointed out that no assets of the plaintiff are being proceeded against for the amount due from the son of the plaintiff. On the above contentions, they prayed for the dismissal of the suit. On the basis of the above pleadings issues were raised. The evidence consists of testimony of PW1, documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants did not adduce any evidence. The trial -:2:- S.A.No.474 of 2000 court held that there was no proof regarding the ownership of the assets and dismissed the suit. The plaintiff carried the matter appeal as A.S.63/1998 before the Sub Court, Alappuzha. The lower appellate court concurred with the trial court and dismissed the appeal. Hence the second appeal. The following questions of law arises for consideration in this second appeal. i) if the title and possession of the building and property where the movables are kept is proved, there is a presumption that the movables belong to the owner of the building and property as is held in 1987(1) K.LT.460. ii) if the movables kept in the building owned by the person is proved, will the onus to prove that the movables belonged to the defaulter is on the respondents. iii) is not the Ext.A1 decree passed which has become conclusive and final, against the very same respondent in another suit, declaring the plaintiff's ownership and possession would be a bar for again proceedings against the movables. iv) is the lower appellate court justified in not considering I.A.No.1771/99 for admitting additional documents in evidence. Learned counsel appearing for the appellant pointed out that the court below were not justified in dismissing the suit without properly considering the evidence. It is also contended that before the lower appellate court appellant had filed petition for receiving additional evidence to establish her rights over the movables. It was without considering that petition and the documents produced along with petition the appeal was dismissed. -:3:- S.A.No.474 of 2000 Accordingly it is contended that the judgment and decree of the court below are unsustainable in law. There is nothing to show that any proceedings have been initiated against the appellant or her assets. She apprehended that defendant may proceeded against her assets. Under these circumstances, there is no scope for considering allegation. However the lower courts were not fully justified in reaching the respective conclusion. At any rate if a notice is received by the appellant, there is adequate remedy provided under the Revenue Recovery Act to establish her rights. When there is alternate remedy, it is unnecessary for this Court to entertain the suit itself. This appeal is accordingly dismissed. Impugned judgments of the lower courts however shall be modified to the effect that plaintiff will be at liberty to establish ownership of the movable assets which may be determined in appropriate proceedings if recovery proceedings are initiated against her assets. There will be no order as to costs. P.BHAVADASAN JUDGE kkj