IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 S.A.No. 306 of 1996() -------------------------- AS.109/1992 of PRINCIPAL SUB COURT, KOCHI OS.1016/1987 of ADDL.MUNSIFF's COURT, KOCHI .................................... APPELLANT / APPELLANT (S) / PLAINTIFF (S): --------------------------------------------------------------- VENKITACHALAPATHY DEVASWOM, PALLURUTHY, REPRESENTED BY ITS PRESENT PRESIDENT, G.S.RAJU, S/O.GIRI SHETTY, NAMBIAPURAM MANGAMADHOM PARAMBIL, PALLURUTHY VILLAGE, KOCHI - 6. BY ADVS. SRI.T.V.ANANTHAN SMT.C.CHANDRALEKHA SRI.C.D.JOSE RESPONDENT / RESPONDENT (S) / DEFENDANT (S): ----------------------------------------------------------------------- 1.VISWANATHAN, S/O.RAMAN MULANTHURUTHY PARAMBU, 18/423, EAST OF COCHIN CUSBA POLICE STATION, PALLURUTHY, KOCHI - 6. 2. SARANGAN, S/O.RAMAN, -DO- -DO- 3. SASI, S/O.RAMAN, -DO- -DO- 4. PRAKASH, S/O.RAMAN, -DO- -DO- 5. RAGHU, S/O.RAMAN, -DO- -DO- BY ADVS. SRI.S.K.BRAHMANANDAN SRI.S.B.PREMACHANDRA PRABHU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. -------------------- S.A.NO.306 OF 1996 ------------------ Dated, this the 5th day of June, 2009. J U D G M E N T The appellant is the plaintiff in O.S.No.1016/1987 on the file of the Additional Munsiff, Kochi. The appellant instituted the above suit seeking a decree of permanent prohibitory injunction against trespass. He claimed absolute possession of the plaint schedule property and alleged that the 1st respondent / 1st defendant was occupying a small piece of land adjacent to the plaint schedule property and that the defendants/respondents had no manner of right or possession over the plaint schedule property and that they had been attempting to trespass into the plaint schedule property, for which they had no manner of right and that the appellant could not resist the high-handed activities of the respondents. 2. The 2nd respondent contented that the plaint schedule property was obtained to his father Raman, on lease, and after the death of the father, he had been continuing the lease and had been doing firewood business since 1963. There was no S.A.NO.306 OF 1996 2 attempt of trespass and prayed for dismissal of the suit. 3. Before the Trial Court on the side of the appellant 3 witnesses were examined and Exts.P1 to P11 were marked. Exts.C1 and C2, two commission reports were also marked. On the side of the respondents also 3 witnesses were examined and Exts.B1 to B11 were marked. The Trial Court on appraisal of the evidence arrived at a finding in favour of the 2nd respondent. Consequently, the suit was dismissed. Assailing the judgment and decree, appeal was preferred before the Subordinate Judge, Kochi. By judgment dated 15.12.1994, the appeal was also dismissed. 4. Though the appellants raised various grounds, there is in fact no substantial question of law involved. The finding that the 2nd respondent is in possession of the plaint schedule property is a question of fact. According to the appellant, the contention of the 2nd respondent that he had lease hold right over the plaint schedule property had been repelled by the Land Tribunal. As the suit being one for permanent prohibitory S.A.NO.306 OF 1996 3 injunction, it is not at all necessary to go deep into the question of title. The courts below, irrespective of the title, concurrently arrived at a conclusion that the 2nd respondent is in possession of the plaint schedule property. In the appeal memorandum seven substantial question of law are raised. In sum and substance it is one and the same. According to the appellant, application O.A.No.212/75 under 72 B of Act 1/64 was dismissed on finding that the respondent has no right or possession and that the shed constructed by the father was destroyed by fire. From the dismissal of application by the Land Tribunal, it can be conclusively held that the respondent is not entitled to any purchase right. It is not a proof that the respondent has no possession. Since the case of the respondent is that the shed was constructed by his father, mere destruction of the shed by fire would not evict the person holding land. Hence all those contention are devoid of any question of law as against the concurrent finding of possession by Courts below. Once possession of a land by any person other than the S.A.NO.306 OF 1996 4 title holder is established, the remedy open to the title holder is to seek a decree for ejection and not to seek a decree for prohibitory injunction. The pleadings on record would show that the 2nd respondent got possession by lawful means. Such a person is to be evicted by a decree of eviction and not by prohibitory injunction. Courts below are perfectly correct in non suiting the appellant. There is no illegality in the decree and judgment under challenge. In the circumstances, I find no substantial question of law to be decided in second appeal. In the result, this appeal is dismissed. There will be no order as to costs. However it is made clear that the decree and judgment under challenge, would not stand in the way, in case the appellant institutes a suit for recovery on the strength of title over the plaint schedule property or seeking a decree for eviction. (P.S.GOPINATHAN, JUDGE) an.