IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 RSA.No. 913 of 2008(A) --------------------------------- A.S.51/2005 OF PRINCIPAL SUB COURT,ALAPPUZHA, OS.796/2001 OF ADDL.MUNSIFF COURT, ALAPPUZHA. .................... APPELLANTS/ APPELLANTS/ DEFENDANTS 1 AND 2: ---------------------------------------------------------------------------- 1. SUSEELA VADYAR, D/O.YAMUNA BAI, PUTHENMADATHIL, THEKKE NADA, A.N.PURAM, THIRUVAMPADY, ALAPPUZHA. 2. RETNAMALA, D/O.SUSEELA VADYAR, -DO-. BY ADV. SRI.T.R.RAJAN. RESPONDENTS/ RESPONDENTS/ PLAINTIFFS & DEFENDANTS 3 TO 6: ---------------------------------------------------------------------------------------------------- 1. JAYA SREE JEEVAN KUMAR, W/O.JEEVAN KUMAR, REVATHY, PALACE WARD, MULLACKAL, ALAPPUZHA. 2. GUNA VADYAR, S/O.LATE ANANTHA VADYAR, PUTHEN MADATHIL, A.M.PURAM, ALAPPUZHA, NOW RESIDING AT KAMPIYIL, MANNANCHERRY P.O., ALAPPUZHA. 3. BALAKRISHNA BHATT, S/O.SUSEELA VADYAR, PUTHENMADATHIL, THEKKE NADA, A.N.PURAM, THIRUVAMPADY, ALAPPUZHA. 4. ANANTHA BHATT, DO, DO. 5. MANJULA, D/O.SUSEELA VADYAR, DO, DO. 6. P.K.SUNDARESAN, S/O.KUMARA SWAMY, EASWARI MOTOR, THEKKE NADA, A.N.PURAM, ALAPPUZHA, NOW RESIDING AT LEKSHMI NIVAS, KALARCODE, ALAPPUZHA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A. NO. 913/2008-A: ORDER ON I.A. NO. 2143/2008 IN R.S.A. NO. 913/2008-A DISMISSED 13/10/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. M.N.KRISHNAN, J ===================== R.S.A. No.913 OF 2008 ===================== Dated this the 13th day of October 2008 JUDGMENT This appeal is preferred against the judgment and decree of the Prl.Sub Court, Alappuzha in A.S.No.51 of 2005. It is a settled position that in order to entertain a second appeal, there must be real substantial question of law involved. The Apex Court in the decision reported in Gurdev Kaur v. Kaki (AIR 2006 SC 1975) had held that the second appellate court shall not be a court of trial and it shall not be a dice in order to promote another litigation. The Apex Court also held that even if a different view is possible on facts however erroneous it may be the second appellate court shall not substitute its views with the view taken by the courts below concurrently. 2. Unfortunately here is a litigation between the husband, wife and children. The husband is on the one side and the wife and children are on the other side. This is already a second round of litigation and the wife and children claimed right over the property whereas the husband would contend that their occupation of the premises was only a permissive occupation. In the earlier round of litigation there was a specific issue raised RSA 913/2008 -:2:- with reference to the right of the defendants and it has been held against them and it has become final by virtue of an appellate judgment as well. Learned counsel for the appellant very strongly persuades me to take into consideration the factum that a mere suit for mandatory injunction will not lie when the possession claimed by the defendants is on a different basis. There can be only two sets of cases for the plaintiffs and defendants. Plaintiffs contend that they are the absolute owner of the property and would submit that it is on account of the permission, defendants are in possession of the property. Defendants, on the other hand, would contend that they have also legal right over the property whereby they became co- owners of the property so that they cannot be removed. Now the attempt of the learned counsel is to project that possession of the defendants though not as owners and even if it is assumed that of trespassers the right for the plaintiffs is to sue for recovery of possession on the strength of title and not for a mandatory injunction. Learned counsel had relied on a decision of this Court reported in Aspinwall & Co. Ltd. v. Soudamini Amma(1974 KLT 681). I hold the view that there cannot be different contention on different occasions. It is a settled position that defendants can take up alternative contentions up to the last stage but has to fix their case on one of the contentions at that stage. Here, unfortunately, defendants did not even file a RSA 913/2008 -:3:- written statement. So what remains is the pleading in the plaint and also an earlier finding by a court of competent jurisdiction regarding the non- entitlement of the defendants to have title to the property. So under such circumstances, the courts below rightly found that the case of the plaintiffs appear to be more probable and held that it can be only permissive possession and thereby granted a decree for mandatory injunction. I do not find any perversity, illegality or irregularity in such a finding. Therefore I hold that there is no substantial question of law involved in this appeal, which warrants admission of the appeal. Therefore R.S.A. is dismissed. M.N.KRISHNAN, JUDGE Cdp/-