IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 RSA.NO. 983 OF 2008() ----------------------------------- AS.116/2005 OF SUB COURT, MANJERI OS.141/2002 OF MUNSIFF COURT, MANJERI .................... APPELLANTS /APPELLANTS /DEFENDATHS:- ----------------------------------------------------------- 1. ABDUL SAMAD, S/O. ABDURAHIMAN MUSALIYAR, CHERUKULAMBIL, KURUVA DESOM, VATTALLOOR DESOM, PERINTHALMANNA TALUK. 2. ABDUL LATHEEF DO.....DO..... 3. ABDUL GAFFOOR, DO...DO.... 4. LIYAKKATHALI, DO....DO.... 5. AYISHUMMA, DO....DO.... 6. NOORJAHAN DO....DO..... 7. BRIYA HAJJUMMA,W/O. ABDURAHIMAN MUSALIYAR, CHERUKULAMBIL, KURUVA DESOM, VATTALLOOR DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.T.KRISHNANUNNI (SR) SRI.SAJU.S.A SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): RESPONDENT/2ND PLAINTIFF:- -------------------------------------------------------------------- PATHUMMA, D/O. KIZHAKKE PEEDIKAYIL MUHAMMEDKUTTY, CHERUKULAMBIL, KURUVA AMSOM, VATTALOOR DESOM, PERINTHALMANNA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.983 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of October, 2009 J U D G M E N T --------------------- Appellants-defendants who were unsuccessful in the courts below in defending the suit for decree for prohibitory injunction based on possession have preferred this Second Appeal urging as a substantial question of law whether in the absence of measurement of disputed property with reference to title deeds and declaration of title, courts below were legally correct in finding possession of the disputed property in favour of respondent? 2. Property schedule in the plaint is Kaikkottu Thodika Nilam and Tank which according to the respondent originally belonged to Venkita Hassan, father of plaintiff No.1 as per Ext.A1, partition deed No.1300/1969 and on his death it devolved on his wife and children (respondent, plaintiff No.1 and others). Right of other legal heirs were purchased by respondent and plaintiff No.1 as per Ext.A2, document No.1737/1976. Respondent and plaintiff No.1 claimed that they are in possession of the suit property and produced Ext.A3 series, receipts for payment of revenue. During the pendency of the suit plaintiff No.1 died. Appellants contended that respondent, plaintiff No.1 or their R.S.A. No.983 of 2008 -: 2 :- predecessor had no right, right and interest over the property and that the Tank referred to in the plaint schedule is situated in R.S. No.25/3 and not R.S. No.19/1 in which respondent and deceased plaintiff No.1 claiming right, title, interest and possession. They contended that the Tank and property on its north, south and west belonged to Alikutthy, their brother as per document No.1292 of 1958 and partition deed No.2760 of 1964. Tank with the land was allotted to the share of appellants. Learned munsiff observed that there is no payment of court fee under Section 27(a) of the Court Fees Act and hence an enquiry into title is not required. Learned munsiff found that respondent and deceased plaintiff No.1 were in possession of the suit property on the date of suit and granted decree as prayed for. First appellate court has concurred with the finding of learned munsiff. Contention of learned Senior counsel is that in a case of this nature principle that possession follows title has to be adopted. In this case trial court found on evidence that possession of suit property which is a Tank is with the respondent and deceased plaintiff No.1. Exhibit A1 is the partition deed No.1300 of 1969 as per which according to the respondent and deceased plaintiff No.1, their predecessor got title and possession over the suit property. In Ext.A1, A schedule is R.S.A. No.983 of 2008 -: 3 :- allotted to the predecessor of respondent and deceased plaintiff No.1 and property is described as Kaikkottu Thodika Nilam, Tank and other improvements. It is said to be in 52 cents in R.S. No.19/1 lying in two taks. Same description is given in Ext.A2, document in favour of respondent and deceased plaintiff No.1 executed by other legal heirs of Venkata Hassan. Item No.4 in Exhibit A2 is the suit property. Description in the plaint schedule is in accordance with Exts.A1 and A2. Western boundary of suit property is Nariyan Chola Parambu which is now in the possession of appellants. Commissioner found that the disputed Tank is situated in Kaikkottu Thodika Nilam and that Nariyan Chola Parambu which admittedly belong to appellants is situated on a higher level and between two properties, there is a ridge having sufficient width which is used by the public. Commissioner also found another Tank in the suit property but trial court found that it is not a Tank but only a small pit. Further finding entered by the courts below on evidence is that in the Paramba belonging to appellants they have constructed a Tank which is 10 metres away from the disputed Tank in the suit property. Courts below observed that if really appellants were using the disputed Tank there was no necessity for them to construct a separate Tank which is 10 metres R.S.A. No.983 of 2008 -: 4 :- away from the disputed Tank. Courts below also found that the physical boundary separating the property belonging to respondent and deceased plaintiff No.1 and Nariyan Chola Pramba belonging to appellants is the ridge. It is true that Commissioner noticed a canal towards east of the disputed Tank but appellants have no case that the said canal is their eastern boundary. It has come in evidence that in the documents of title of appellants (Exts.B1 to B3) there is no mention about the Tank. On the other hand, Exts.A1 and A2 relied on by respondent and deceased plaintiff No.1 refer to the Kaikkottu Thodika Nilam and Tank. Suit property is Nilam as seen from the report of Commissioner. As per Exts.B1 to B3, property of appellants is “Paramba”. It is in the above circumstances that trial court found that possession of the suit property is with respondent and deceased plaintiff No.1 as on the date of suit. First appellate court concurred with that finding after consideration of the evidence. Finding of courts below rests on a proper appreciation of the evidence on record. This Court can interfere with the finding of fact entered by the first appellate court which concurred with the finding of trial court only when the finding is not supported by any evidence or the finding is perverse. Neither of that situation arises in this case. As such the R.S.A. No.983 of 2008 -: 5 :- substantial question of law raised by appellants do not really arise for consideration. Second Appeal is without merit and it is only to be dismissed. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv