IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 SA.No. 227 of 2003(B) --------------------- AS.254/2000 of DISTRICT COURT, KOTTAYAM OS.12/1996 of PRL.SUB COURT,KOTTAYAM .................... APPELLANTS/ RESPONDENTS/PLAINTIFFS:- ------------------------------------------------- 1. SANTHAKUMARI KARUNAKARAN, W/O. V.S.KARUNAKARAN, AGED 63 YEARS, RESIDING AT 'THUSHARA', POONITHURA P.O., COCHIN-682 317. 2. V.S.KARUNAKARAN, S/O. LATE KUTTY, AGED 69 YEARS, RESIDING AT 'THUSHARA', POONITHURA P.O., COCHIN-682 317. BY ADV. MR. T.M.ABDUL LATHEEF RESPONDENTS/APPELLANTS/DEFENDANTS:- -------------------------------------------------- 1. KATHREENAMMA VARGHESE, RESIDING AT THRIKKAIKAL, SANTHIPURAM P.O., KARUKACHAL VILLAGE, CHANGANACHERRY TALUK. 2. JOSEPH VARGHESE S/O. VARGHESE, RESIDING AT THRIKKAIKAL SANTHIPURAM P.O., KARUKACHAL VILLAGE, CHANGANACHERRY TALUK. 3. ANNAMMA JOSEPH, W/O. JOSEPH, RESIDING AT THRIKKAIKAL SANTHIPURAM P.O., KARUKACHAL VILLAGE, CHANGANACHERRY TALUK. THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- S.A. No. 227 of 2003 ------------------------------------------------------------ Dated this the 29th day of July, 2009. JUDGMENT Appellants who are husband and wife, are the two plaintiffs in O.S. No. 12 of 1996 on the file of the Sub Court, Kottayam. The said suit was one for recovery of possession of the plaint schedule property admeasuring 5 cents comprised in Survey No. 123/1/26 of Karukachal village. 2. The suit was resisted by the defendants contending inter alia that the plaintiff has no title or possession over the disputed property. 3. The trial court as per judgment and decree dated 29.01.2000 decreed the suit. Aggrieved by the decree, the defendants filed an appeal before the District Court, Kottayam as A.S. No. 254 of 2000. The lower appellate court after a re- appraisal of oral and documentary evidence, came to the conclusion that the predecessor in title of the 1st plaintiff had only 51 cents of land transferred to him under Exts.A1 and A2 and that the disputed 5 cents was specifically excluded from the transfer. The lower appellate court also by receiving in evidence S.A.No. 227/2003 : 2 : Ext.B5 certificate dated 26.11.1999 issued by the Secretary, Karukachal Grama Panchayat, came to the conclusion that the building situated in the disputed 5 cents has been assessed in the name of the 1st defendant. The court below held that in a suit for recovery of possession on the strength of title, the plaintiffs cannot succeed by picking holes on the defence and that they will have to stand or fall on the strength of their own evidence. After holding that the plaintiffs failed to establish their title over the disputed 5 cents of land the lower appellate court reversed the decree passed by the trial court and dismissed the suit. Hence this Second Appeal by the plaintiffs. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- 1. Whether the documents produced and marked in the suit are not sufficient to identify the plaint schedule property. 2. Whether marking of B5 document by the appellate court without examining the person who issued the same is proper? 3. Whether denying the plaintiff an opportunity to rebut B5 document is violation of principles of natural justice. 4. Whether rejection of A8 document by the appellate court is proper. S.A.No. 227/2003 : 3 : 5. The learned counsel appearing for the appellants/plaintiffs reiterated the contentions of the appellants. 6. I cannot agree with the submissions made by the learned counsel. When it has been clearly found by the lower appellate court after a re-appraisal of the oral and documentary evidence that the plaintiffs' assignor assigned only 51 cents of land and that the disputed 5 cents of land was specifically excluded from the assignment, the plaintiffs cannot contend that they have title over the said 5 cents of land as well, which is the plaint schedule property. It was not incumbent upon the defendants to prove that they have title over the property in question. It is well settled that in a suit for recovery of possession on the strength of title, it is for the plaintiff to establish his title and any attempt by the plaintiff to demolish the defence case of title over the disputed property cannot take the plaintiff anywhere. (vide AIR 1954 SC 526, AIR 1942 PC 54, AIR 1946 PC 59, 1963 KLT 750). Hence, the finding recorded by the lower appellate court that the plaintiffs have failed to establish their title over the disputed 5 cents of land is pure finding of fact. S.A.No. 227/2003 : 4 : 7. Ext.B5 certificate was received in evidence only to show that the building in the disputed 5 cents of land was not merely a shed as contended by the plaintiff, but a pukka building assessed to tax in favour of the defendant. I, therefore, do not find any illegality on the part of the lower appellate court in receiving in evidence Ext.B5 certificate. That was admitted in evidence for the purpose of enabling the lower appellate court to pass a satisfactory judgment which is also one of the grounds falling under Order 41 Rule 27 C.P.C. (vide AIR 1965 SC 1009 and AIR 1963 SC 1526). The findings recorded by the lower appellate court are pure findings of fact. There is no question of law, much less, any substantial question of law arising out of the said findings. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 29th day of July, 2009. V. RAMKUMAR, JUDGE. rv S.A.No. 227/2003 : 5 : V. RAMKUMAR, J ------------------------------------ S.A No. 227 of 2003 ---------------------------------------- 29th day of July, 2009. JUDGMENT S.A.No. 227/2003 : 6 :