IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 SA.No. 140 of 1995() ---------------------------- AS.9/1990 of SUB COURT, PAYYANNUR OS.274/1985 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT: APPELLANT/PLAINTIFF ------------------ KOYYODAN KORAN, S/O. MANIKKAM AMMA, RAMANTHALI AMSOM, AND DESOM, DISTRICT KANNUR. BY ADV. SMT.VIDHYA. A.C RESPONDENTS/ RESPONDENTS/ DEFENDANTS ----------------------- 1. VADAKKEPURAYIL KUMARAN, S/O. KORAN, KOKKAPPARA, RAMANTHALI AMSOM, DESOM, P.O. PAMANTHALI, DISTRICT KANNUR. 2. THEVADATH LAKSHMANAN, S/O. KUMARAN, DO. DO. R1 & R2 BY ADV. SRI.T.A.RAMADASAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = S.A. NO. 140 OF 1995 = = = = = = = = = = = = = = = Dated this the 10th day of January, 2008. J U D G M E N T This second appeal is preferred against the judgment and decree of the Subordinate Judge, Payyannur in A.S.9/90. The suit is one for injunction filed by the plaintiff against the defendant and both the Courts below found that the plaintiff has not succeeded in proving the case of possession and therefore dismissed the suit. It is against that concurrent finding of facts the second appeal is filed. At the time of admission, this Court ordered notice on the substantial questions of law formulated which is reproduced as follows: “A. In the facts and circumstances of the case is the finding of the Courts below that the plaintiff has not established possession over the plaint B schedule property legally sustainable? B. In the light of the documents especially B4 and B5 showing the eastern boundary of the plaintiff's property as road were the courts below legally justified in making much of in the non mentioning of R.S.29/2 and 30/2 in these documents? S.A.140 OF 1995 -:2:- C. In the light of Section 74 of the KLR Act is the claim of oral lease by the Devaswom to the 2nd defendant in 1984 legally sustainable?” 2. Since notice had been issued on the substantial questions of law formulated it is now necessary by this Court to find out whether this question that had been formulated are real substantial questions of law. Before attempting to analyse the matter it is desirable to look into the guidelines given by the Apex Court in the decision reported in Gurudev Kaur v. Kaki (AIR 2006 SC 1975). The Apex court held that the second appeal is only limited to substantial question of law and finding of fact however wrong or grossly inexcusable, it is not liable to be interfered with. Points: 3. The suit is one for an injunction. It is the case of the plaintiff that the property described in the plaint A schedule property belongs to plaintiff's brother Koyyodan Kannan and his sisters Janaki and Madhavi. There had been a partition in between these three persons. As per Ext.A2 whereby the plaint A schedule property was set apart to the S.A.140 OF 1995 -:3:- share of Janaki. Thereafter Janaki as per Ext.A1 document assigned this property in favour of the plaintiff on 17.10.85. Ext.A3 is a basic tax receipt and A4 to A6 are house tax receipts. Ext.A7 is a certified copy of a statement and Ext.A8 is photocopy of the plaint in O.S.21/86. As per the document A2 the entitlement of Janaki is to have 22 cents in R.S.No.236/1A1A, 28½ cents in R.S.NO.29/2 and 15 cents in R.S.No.30/2. When the Commissioner inspected the property and measured the property now the dispute has been confined to 10 cents of property which is marked as plots C1 and C2 by the Commissioner. 4. The case of the defendant is that he had obtained his property from Ramanthali Devaswom and contends that it is an oral lease and that he has put up a Bunk in the property and after plaintiff's forcible entry and demolition of the Bunk, he had filed a police complaint which had ended in a criminal case. Since there is other dispute also between the parties regarding the right of entitlement of fixity of tenure etc., I confine my discussion and finding only to the possessory aspect being a suit for injunction simplicitor. S.A.140 OF 1995 -:4:- 5. Now, this Court is only at the most expected to consider whether there has been total perverse approach by the Courts below in appreciating the evidence and considering the documentary evidence. It has to be stated that the proper documents of title of the plaintiff which had been produced in the form of Exts.B1 to B3 which would show that the entitlement of the property as per Survey Number is only in R.S.NO.236/1A1A. It is submitted that though Exts.B4 and B5 also contain the very survey number only by Ext.A2 in the year 1985 a repartition deed was executed whereby two survey numbers, R.Sy.No.29/2 and 30/2 were incorporated. So the Courts below found that such documents created are only with a view to get at the property and the defendant had a case that he has taken 10 cents of property from the Devaswom whether it is a permissible lease or a forbidden lease are matters which are of extraneous considerations in this case for the reason the question is only with respect to the possession of the property. The Courts below found that the defendant has approached the Police with a complaint that the Bunk constructed by him has been demolished by the plaintiff. A S.A.140 OF 1995 -:5:- reading of the report of the Commissioner would also indicate that the Bunk was in existence, at the time of his visit, is only about 5 days old. He was able to see the remnants of a Bunk in the plaint schedule property. Further the Courts below did not accept the evidence of the plaintiff to prove possession. The Apex Court in the above said decision in paragraph 70 observed as follows. “The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis-appreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis- appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. S.A.140 OF 1995 -:6:- 6. So far as this case is concerned even if the principle of misappreciation etc. are taken into account one cannot find real misappreciation at all but only a valid consideration on the facts available for the purpose of arriving at a decision on the questions of possession. Therefore the questions of law formulated as 1 and 2 are found against the appellant and question No.3 does not arise for consideration at all for the reason the Court is not concerned about the validity of a lease in a suit for injunction. The second appeal is therefore dismissed but the parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- S.A.140 OF 1995 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = S.A. 140 OF 1995 = = = = = = = = = = = J U D G M E N T 10th January, 2008.