IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 RSA.No.318 of 2009 ----------------------- AS.82/2008 of SUB COURT,NEYYATTINKARA OS.214/2007 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/DEFENDANT -------------------------------------------- KRISHNA PILLAI SREEKANTAN NAIR, AGED 43 YEARS,CHERIYA PAMMATHINGAL VEEDU, PARASUVAIKKAL DESOM & VILLAGE,REP.BY HIS POWER OF ATTORNEY HOLDER SRI.K.ANILKUMAR, CHERIYA PAMMATHINGAL VEEDU, PARASUVAIKKAL DESOM & VILLAGE. BY ADV. SRI.D.SAJEEV RESPONDENTS/RESPONDENTS/PLAINTIFFS ---------------------------------------------------- 1. ISREAL,S/O.JOSEPH,AGED 85 YEARS, GRACE VILLAGE,PARASUVAIKKAL DESOM AND RESIDING FROM VANNAMVILAKATHU VEEDU, PARASUVAIKKAL DESOM & PAKUTHY, PARASSALA VILLAGE. 2. ISREAL WILFRED,S/O.ISREAL,AGED 48 YEARS, RESIDING AT KARUNYA,PARASUVAIKKAL DESOM AND ALSO HAVING ROADARIKATHU MADATHUVALY SHOP. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.318 of 2009 ------------------------------------------------ Dated this the 25th day of March, 2009 JUDGMENT This is appeal arising out of O.S.214/07 on the file of the Munsiff's Court, Neyyattinkara. Defendant is the appellant and the plaintiffs are the respondents. What is assailed is concurrent decree passed by the courts below declaring title of the respondents over plaint 'B' schedule building and directing the appellant/defendant to surrender vacant possession of the scheduled building within 60 days from the date of the decree passed by the trial court. Though the respondents claimed that 'B' schedule building constructed in 'A' schedule property was let out by them to the appellant/defendant, as tenancy arrangement was not proved, the court below found against the rental arrangement alleged by the respondents. Mesne profits also R. S. A. No.318 of 2009 -2- was not decreed as no evidence was adduced as regards the mesne profits derivable from the 'B' schedule building. 2. On the pleadings of the parties, the trial court had raised necessary issues for trial and considering the case in the light of the evidence adduced at trial which consisted of oral evidence of PW1 and DW1 and documentary evidence Exts.A1 to A5 and Exts.B1 to B10 as also Ext.C1 and C1(a) decreed the suit O.S.214/07 and the suit O.S.34/07 filed by the appellant as plaintiff which was jointly tried along with O.S.214/07 was allowed in part granting a decree restraining the respondents from causing damage to the shop rooms and from dispossessing the plaintiffs otherwise than in due process of law and in execution of the decree in O.S.214/07 which was disposed of by the common judgment. R. S. A. No.318 of 2009 -3- 3. Against the decrees both in O.S.214/07 and O.S.34/07 the present appellant filed first appeal before the first appellate court respectively as A.S.82/08 and A.S.83/08 and both the appeals were dismissed and hence, this RSA against the concurrent verdicts in O.S.214/07. 4. It is vehemently contended before me by the learned counsel for the appellant that decrees passed concurrently by the courts below declaring title of the respondent/ plaintiffs over 'B' schedule building is incorrect and that recovery of possession of the building should not have been allowed by the courts below. The contention of the appellant is that the shop room with old door No.263/2 and present Door No.35/3 with one room had been in possession of the defendant for a long time; that he has obtained permission from the Panchayath to conduct a R. S. A. No.318 of 2009 -4- stationary shop under the name and style “Krishna Traders” that either over the shop rooms or over the land, the plaintiffs never had any right and the suit is a counter blast to O.S.34/07 filed by the appellant; that the plaintiffs have no title or possession over the plaint schedule property; that the shop room is not constructed by the first plaintiff and there was no tenancy arrangement and there was no agreement to pay rent of Rs.250/- per month; that the plaintiffs have won over the Panchayath authorities and managed to change the door numbers; that no declaration or injunction can be given; that earlier O.S.922/03 was pending with respect to plaint 'A' schedule property with Indira Bai Ananda Kumari as plaintiff and the present plaintiffs as defendants 1 and 2; that in the written statement filed in that suit the present plaintiffs never contended on the basis of the R. S. A. No.318 of 2009 -5- present documents; that as per the plan in that case 'B' schedule shop room is not inside the plaint 'A' schedule property; that even if plaintiffs ever had any right over plaint 'B' schedule shop building, the same has been lost by open, hostile, continuous and assertive possession and enjoyment of the plaint 'B' schedule shop rooms by the defendants. 5. The learned counsel for the appellant further submits that the respondents have not produced any document to prove title over 'B' schedule building; that the building stands in a Puramboke land which belongs to the Panchayath and that the predecessor of the appellant was obtaining permission from the Panchayath and constructing a building and was conducting business therein and that the building does not belong to the respondents. 6. Evidence in the case was being recorded by the trial court treating O.S.34/07 R. S. A. No.318 of 2009 -6- filed by the appellant as the leading case and the documents produced on the side of the appellant are Exts.A1 to A5. Ext.A1 is the licence issued from the Parassala Grama Panchayath dt.30/01/06 and Ext.A2 is the building tax receipt dt.28/01/06 both immediately preceding institution of the suit. The other documents produced are Exts.A3 to A5 which are respectively a membership certificate, a true photo copy of the re- survey plan and the extract of the building tax register. The above documents are quite insufficient to establish the contentions now advanced before me that obtaining permission from the Panchayath, a building was put up by the predecessor in interest of the appellant and shop was being conducted in the said rooms by his predecessor and thereafter by the appellants. The contention in the written statement also is that the building had been R. S. A. No.318 of 2009 -7- in possession of the defendant for long and he obtained permission from the Panchayath to conduct a stationary shop under the name and style “Krishna Traders”. The respondents produced Ext.B1 sale deed executed in favour of the first respondent/first plaintiff by Nalla Thampi Manas on 14/02/61 assigning 'A' schedule property to him. The case of the plaintiffs is that 'B' Schedule building is put up by them in 'A' schedule property. Ext.B5 series are building tax receipts and Exts.B6 and B6(a) are true photostat copies of assessment register from Parassala Grama Panchayath showing assessment of the building in the name of the plaintiffs. Ext.B7 is tax receipt and Exts.B7(a), B8 and B8(a) are building tax receipts in relation to the scheduled building. It is considering the oral as well as documentary evidence adduced on both sides that the courts below have come to R. S. A. No.318 of 2009 -8- the conclusion that respondents/ plaintiffs have title over 'B' schedule building and it is therefore, that recovery of possession was granted in favour of the respondents concurrently by the courts below. There is no merit in this RSA and there is no question of law and much less any substantial question of law arising for consideration in this RSA by this Court on the contentions set up in the Written Statement and the arguments advanced before me. Substantial question of law attempted to be formulated in the appeal memorandum are not questions of law and much less any substantial question of law. This RSA in the circumstances, is devoid of merit and is dismissed in limine. K.P.BALACHANDRAN, JUDGE kns/-