IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RSA.No. 595 of 2008(Y) --------------------------------- AS.2/2003 of SUB COURT,NEYYATTINKARA OS.416/2001 of I ADDL. MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT/APPELLANT/DEFENDANTS: ------------------------------------------------------------ KRISHNANKUTTY ALIAS STANLEY, S/O.RASALAM, KAITHAKUZHY VEEDU, VELLANGAL, EDAVAL DESOM, KEEZHAROOR VILLAGE, NOW RESIDING ATTARIKATHU VEEDU, KOCHU ERUMODUMANNADIKADAVU, EDAVAL DESOM, KEEZHAROOR VILLAGE. BY ADV. SRI.R.GOPAN RESPONDENTS/RESPONDENTS/PLAINTIFF: ----------------------------------------------------------------- 1. RAGHAVAN, (M/S.SAI POTTARIES & TILES REG.NO.429/91), PARTNER, S/O.KOCHUKRISHNAN, THEKKEMADAVILAKATHU VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 2. M/S.SAI POTTARIES & TILES, REG.NO.429/91, ARYANCODE, OTTASEKHARAMANGALAM, NEYYATTINKARA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.595 of 2008 ------------------------------------- Dated 21st July 2010 Judgment The defendant, who suffered a decree at the hands of the Munsiff's Court, Neyyattinkara, which was confirmed by the Sub Court, Neyyattinkara, is the appellant before this Court. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 2. The plaintiffs laid the suit, claiming right over the plaint schedule property, which was acquired by him as per Ext.A1 document. He submitted that he availed of a loan from the Kerala Financial Corporation for setting up a factory in the plaint schedule property. The original document has been deposited with the Corporation for availing the loan. According to the plaintiffs, the property has well defined boundaries on all the four sides and it is clearly identifiable. He submitted that the defendant, who had no manner of right over the property, tried to trespass RSA 595/08 2 into the property and commit mischiefs there. The plaint schedule property is stated to be lying as a single plot and it is used by the plaintiffs for storing fire wood, tiles etc. In other words, it is used as a yard by the plaintiffs. The plaintiffs filed several complaints against the mischiefs committed by the defendant, before the Police, which yielded no results. He therefore, approached the court. 3. The defendant entered appearance and filed his written statement denying the allegations in the plaint. He contended that the old survey No.202/7C claimed in the plaint schedule is re-surveyed and numbered as RS No.23/1 in Block No.26, which has an extent of 7.40 ares. He also disputed the extent of property in Survey No.202/7A as 36 ares. According to the defendant, even the assignor of the plaintiffs had no title to the property and therefore, the plaintiff also did not have title to the property. It was also contended that the property in RS No.202/7C and 7A belongs to the Government. It was also contended that the defendant continues to be in RSA 595/08 3 possession of the property comprised in RS No.23/1 in Block No.26. He claimed to be in possession of the property for more than 100 years. According to the defendant, the property is cultivated by tapioca and plantain and there is no tile factory, as claimed by the plaintiff. The property was never used by the plaintiffs, as a yard. Pointing out that the plaintiffs have no title to the property, the defendant prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. The defendant examined DWs 1 and 2 and had Exts.B1 to B3 marked. Exts.C1 and C1(a) are the commissioner's report and plan. 5. The Trial Court, on an evaluation of the materials before it, found that the plaintiffs have been able to show that they have right over the plaint schedule property and that the defendant has no manner of right over the same. Though the defendant had stated that RSA 595/08 4 there was a shed in the property, it was insufficient to show that the defendant was in possession of the property. Therefore, the Trial Court held that the plaintiffs are entitled to a decree as prayed for and granted a decree accordingly. 6. The defendant carried the matter in appeal as AS No.2/03 before the Sub Court, Neyyattinkara. The lower Appellate Court independently considered the evidence on record and came to the conclusion that the Judgment and decree of the Trial Court do not call for any interference. The said concurrent findings are challenged in this Second Appeal. 7. The learned counsel for the appellant pointed out that the property involved is a puramboke land, therefore, the Government was a necessary party in the suit and so, the suit is bad for non-joinder of necessary parties. He had raised the said allegation in his written statement filed in the suit and the court ought to have taken note of the same. It is pointed out that going by the RSA 595/08 5 Commissioner's report and plan, the property is not identifiable and without identifying a property, a decree could not have been granted. It is also contended by him that the evidence is clear to the effect that the plaintiffs were not in possession of the property and therefore, prohibitory injunction could not have been granted in their favour. The defendant contended that if the courts below had perused the Commissioner's report, it would have shown that there was cultivation in the plaint schedule property and it was not a yard as claimed by the plaintiffs. It was also pointed out that for instituting a suit as a partnership firm, there should be atleast two partners, whereas in the case on hand, the suit is instituted by only one partner of the firm and therefore, the suit was incompetent. 8. Although the above arguments may look very attractive at the first blush, on a closer scrutiny of the evidence, it can be seen that they are without any basis whatsoever. The courts below have placed reliance on the RSA 595/08 6 survey plan prepared by the Commissioner. The Trial Court has come to the conclusion that Ext.C1(a) plan would show that the property having an extent of 9.1 ares has been obtained by the plaintiffs as per Ext.A1 document. The court below also found that the property has been mortgaged to the Kerala Financial Corporation for availing a loan and that the original documents of the property were in the possession of the said Corporation. It was also found that the plaint shows that the property is the yard of tile factory cultivated with plantain and tapioca plants. The defendant in support of his claim that the property is in his possession, has produced Ext.B4 which is a tax receipt. But, the court below has noticed that the said receipt contains the Survey No.202/7A and not 202/7C which is the property claimed by the plaintiffs. 9. As regards the contention that the suit was incompetent as it was filed by a single partner, it seems that no such issue was raised before the Trial Court and the appellant had no such grievance at that time. RSA 595/08 7 10. At the appellate stage, the learned counsel for the appellant was satisfied by filing the argument notes. The lower Appellate Court considered the argument notes in considerable detail and found that the contentions therein are untenable. The lower Appellate Court came to the conclusion that the findings of the court below are justified. It needs to be noticed here that the Commissioner has located the plaint schedule property as ABCDEFG. Both the courts below have found that the description of the property in the plaint tallies with the description in the Commissioner's report. The contention of the defendant was that the 25 cents form part of 1 acre 91 cents and excluding puramboke, the property belongs to Soolamkuzhy tharavadu and that now, it is in the possession of the Kerala Financial Corporation. Both the courts took this as a point in favour of the plaintiffs and that due to his failure to repay the loan amount, the KFC has taken possession of the property. RSA 595/08 8 11. The lower Appellate Court has also noticed that PW1 while examined, had admitted that the defendant had planted plantain and constructed a shed in the property, but that was not sufficient to show that the defendant was in possession of the property. It was also observed that there was nothing to show that the plaintiff had any manner of right over the suit property. Though Exts.B1 to B3 were only marked as exhibits from the side of the defendant, in the body of the judgment, it is seen that Ext.B4 is also referred to. The lower Appellate Court has also made reference to Ext.B4 document. Probably, it was produced at the appellate stage. Whatever that be, it was found by both the courts below that the said document was insufficient to come to a conclusion that the defendant was in possession of the property. 12. The contention that the property has not been properly identified, is without any basis. The Commissioner's report and the re-survey plan have been perused by the courts below and the courts below were RSA 595/08 9 satisfied that the property has been properly identified and that the plaint schedule property had in fact, been acquired by the plaintiff as per Ext.A1 document. It could thus be seen that all the contentions taken by the defendant were found against and the plaintiff had succeeded in establishing his title to the property. From the above, it is clear that the apprehension of the plaintiffs was well- founded and therefore, the courts below are justified in decreeing the suit. The findings have been arrived at by the courts below based on appreciation of evidence adduced in the case. The findings of the courts below are purely findings of fact and no substantial question arise for consideration in this appeal. This appeal is without merits and it is accordingly dismissed. Sd/- P.BHAVADASAN, JUDGE sta True copy PA TO JUDGE RSA 595/08 10 RSA 595/08 11