IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 RSA.No. 537 of 2008() --------------------- AS.39/2007 of D.C.& SESSIONS COURT,THODUPUZHA OS.93/2002 of MUNI-MAGI COURT, DEVICOLAM .................... APPELLANT ----------------------------- THANKAMANI @ RANJITHAM, W/O.ANBIAH, RESIDING AT G.H.ROAD, K.D.H.VILLAGE, MUNNAR. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S):RESPONODENTS/ DEFENDANT ---------------------------------------------------- M/S.TATA TEA LTD., A CO. INCORPORATED IN INDIA,HAING THEIR REGISTERED REG.OFF:NO.1,BISHOP LEFORY ROAD,CALCUTTA, AND HAVING THEIR REGIONAL OFF. AT MUNNAR THROUGH THEIR PRICIPAL OFFICER THE GENERAL MANAGER, REGIONAL OFFICE, M/S.TATA TEA LTD., MUNNAR, K.D.H.VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 537 of 2008 ---------------------------------------- Dated this the 29th day of May, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 39/2007 on the file of the District judge, Thodupuzha which arises from O.S. 93/2002 on the file of the Munsiff's Court Devikulam. The trial court dismissed the Suit and the same was confirmed by the lower appellate court. Hence this Second Appeal. The plaintiff in the suit is the appellant herein. The parties hereinafter referred to as plaintiff/appellant and defendant/respondent as arrayed in the Suit. 2. The suit property is 1.5 Cents of land in Survey No. 62/28 A of the KDH Village. It is the plaintiff's case that she was in absolute possession of the plaint schedule property till she was wrongfully evicted by the defendant therefrom on 23.5.1999. 3. The defendant filed O.S. 213/1988 before the Munsiff's Court, Devikulam seeking to evict the plaintiff from the area on which a residential portion of her building was situated. The extent of the property involved in the said case was 20.625 Sq. Meter. The building mentioned in O.S. 213/1988 was dismantled and removed at the instance of the PWD authorities. The plaintiff has not further contested the said suit and the same was decreed exparte on 17.11.1993. The plaintiff further contended that she had constructed the building in the plaint schedule property R.S.A. No. 537 of 2008 -2- during June and July 1993 and her possession got matured into title by prescription, that the decree was obtained by the defendant falsely and fraudulently by suppressing material facts with ulterior objects, that the decree is not binding upon the plaintiff and the plaint schedule property. The present suit i.e. O.S. No. 93/2002 was filed by the plaintiff seeking the relief of declaration of her possessory right over the plaint schedule property and for a further declaration that the decree in O.S. 213/1988 was not binding on the Plaint schedule property. 4. The defendant opposed the reliefs sought for by the plaintiff The defendant denied the averments in the plaint and contended that the plaintiff was evicted in O.S 213/1988 and the plaintiff is estopped by the principles of resjudicata from raising the contentions in the plaint and that the filing of the present suit itself is an abuse of process of court. 5. The trial court examined the issues raised by the parties on the basis of evidence. The evidence consists of the oral testimony of PWs 1 to 5 and Exts. A1 to A7, C1 and C1(a) The defendant adduced no oral evidence but marked documents B1 to B3. In view of the evidence adduced by the plaintiff's witnesses the trail court held that the story of demolition and removal of the plaint schedule building by PW D authorities is not proved and that the decree passed in O.S. 213/1988 is a valid decree and as such operates as resjudicata to raise the claim by the plaintiff. 6. The trial court examined the question whether the suit is R.S.A. No. 537 of 2008 -3- barred by limitation. The trial court after lengthy discussion and appreciation of the evidence, held that the present suit ought have been filed on or prior to 17.6.1998 ,instead of that, the plaintiff filed the suit only on 12.4.2002 which is barred by limitation. The trial court again discussed whether the reliefs shall be extended to the plaintiff or not . The court concluded that the plaintiff is not entitled to a declaration regarding her possession over the plaint schedule property and she is not entitled to recover any damages from the defendant in lieu of the demolition of the building . 7. The decree and judgment passed by the trial court were challenged in appeal by the plaintiff. . The lower appellate court also examined in detail all the contentions raised by the plaintiff and defendant and concurred with the trial court's view in almost all the issues. The findings entered by the lower appellate court and the trial court are based on facts, circumstances and the evidence adduced by the parties I find no reason to interfere with the judgments and decrees passed by the courts below and to invoke Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 537 of 2008 ---------------------------- JUDGMENT 29th May, 2009