IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 SA.No. 705 of 1999(A) -------------------------------- AS.90/1998 of II ADDL.SUB COURT,THRISSUR OS.346/1993 of MUNSIFF COURT, VADAKKANCHERRY .................... APPELLANT(S): APPELLANT/PLAINTIFF -------------------------------------------------------- ABDULLA, S/O. PLAKKAL MUHAMMED, MARATHUKUNNU DESOM, ENKAKKAD VILLAGE THALAPPILLY TALUK. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) RESPONDENT(S): RESPONDENT/DEFENDANTS -------------------------------------------------------------------- 1. P.H.ABOOBACKER, S/O.NJHAMANANGHAT PALLIPURATH HASSAN, PAPDAVINGAL, VADAKKEKKAD AMSOM, CHAVAKKAD TALUK. 2. UMMUKULSU, D/O.MUHMMED, W/O. NJAMANANGHAT PALLIPURATH P.H. ABOOBACKER, PADUVINGAL VADAKKEKAD AMSOM, CHAVAKKAD TALUK. ADV. SRI.DILIP J.AKKARA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 705 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011. JUDGMENT The plaintiff in O.S. 346 of 1993 before the Munsiff's Court, Vadakkacherry, who was non-suited by both the courts below is the appellant. 2. The short case put forward by the plaintiff was that the plaint schedule property was acquired in the name of the second defendant utilizing the funds of the plaintiff and the first defendant. There was a mutual agreement between the parties that the properties will not be sold without the consent of the plaintiff. Contrary to the understanding, the defendant tried to sell the property. That resulted in the suit. 3. The defendants contested the suit by pointing out that the allegations are frivolous and vexatious. They denied that the plaintiff had possession over the suit property. The claim put forward by the plaintiff was denied S.A.705/1999. 2 and pointed out that the plaintiff is not entitled to any relief. They therefore prayed for a dismissal of the suit. 4. It appears that after filing the written statement, the defendant did not take part in further proceedings of the suit and they were set ex-parte. The plaintiff was examined as P.W.1 and Exts.A1 to A2(b) were marked from his side. The trial court found that the plaintiff had miserably failed to establish his case and dismissed the suit. The plaintiff carried the matter in appeal as A.S.90 of 1998 before the Sub Court, Thrissur. The lower appellate court independently considered the evidence on record and the contentions raised by the plaintiff and found that the plaintiff has not succeeded in proving any manner of right over the suit property and dismissed the appeal. Hence this Second Appeal. 5. Notice is seen issued on the following questions of law: S.A.705/1999. 3 “1. Whether or not the plaintiff is entitled to injunction as prayed for in view of the possession with the plaintiff? 2. Whether or not the court below justified in not considering the unchallenged evidence relating to possession and enjoyment? 3. Whether or not the court below justified in demanding proof of title in the suit for prohibitory injunction? 4. Whether or not when the plaintiff continue in possession is entitled to the injunction as prayed for?” 6. Learned counsel appearing for the appellant contended that the courts below were not justified in dismissing the suit. More so, because the defendants chose not to contest the suit after the filing of the written statement and that shows that the claim put forward by the plaintiff remains uncontroverted and a decree ought to have been passed in his favour. 7. It is not possible to agree with the above contention. Merely because the defendants did not take part in the proceedings, it cannot be said that a decree S.A.705/1999. 4 ought to have been passed in favour of the plaintiff. The courts below were perfectly justified in verifying whether on the pleadings and the evidence available on record, the plaintiff is entitled to a decree. 8. The plaintiff has stated in the plaint that the property was purchased in the name of the second defendant for some reason or the other. At the time of evidence he deposed that the plaint schedule property was purchased in the joint names of plaintiff and the second defendant. The lower appellate court has considered the matter in considerable detail. Even though the plaintiff claims to be in possession of the property, no scrap of paper was produced by the plaintiff to prove his title or to show that he was exercising any act of possession over the suit property. It is seen that the plaintiff had placed reliance on some letters, which as noticed by the lower appellate court do not indicate that the plaintiff had any manner right over the suit property. Both the courts below have concurrently found that the plaintiff has miserably failed to establish his S.A.705/1999. 5 title and possession over the suit property. As noticed by the lower appellate court, even if the plaintiff is in possession, there is no reason why the second defendant could not sell the property as she had title to the suit property. Whatever that be, the courts below have concurrently found that the plaintiff has miserably failed to establish his case and had declined to grant relief to him. The findings are pure findings of fact. No question of law, much less any substantial question of law arises for consideration in this second appeal especially when it is not shown that the findings are either perverse or unwarranted by the evidence on record. This Second Appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.