IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 220 of 2009() --------------------- AS.76/2006 of SUB COURT, KASARAGOD OS.328/2004 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/APPELLANT/DEFENDANT NARAYANA BHANDRI, AGED 81 YEARS, S/O. NAGAPPA BHANDRI, HINDU, LAND HOLDER, R/AT GUTHU HOUSE, ADHUR VILLAGE, AND POST, KASARGOD TALUK & DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT/RESPONDENT/PLAINTIFF --------------------------------------------------------- SUBRAMANIYA A, AGED 46 YEARS, S/O. LATE GOVINDA BHAT, HINDU, LAND HOLDER, R/AT ALARTHADKA, ADHUR VILLAGE AND POST, KASARGOD TALUK & DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 220 of 2009 ---------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The Second Appeal is directed against the decree and judgment in A.S. No. 76/2006 on the file of the Sub court, Kasargode which arises from the judgment and decree in O.S. No.328/2004 on the file of the Munsiff's Court, Kasargod. The suit was filed for permanent prohibitory injunction The trial court decreed the suit restraining the defendant, his men and agents from trespassing into or otherwise in any way interfering with the plaintiff's peaceful possession and enjoyment of the plaint A schedule property . The lower appellate court confirmed the trial court's decree and judgment. The defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The trial court considered the questions of right, title, interest and possession over the plaint A schedule property on the basis of oral and documentary evidence adduced by the parties. 3. The evidence in this case consists of the oral evidence of PW1 and PW2 and Exts A1, A2, C1, C2,and B1 to B3. No oral evidence was adduced by the defendant. 4. The trial court held that ExtA1 document shows that original R.S.A. No. 220 of 2009 -2- assignee Ponnakke transferred her possessory title over the plaint A schedule property in favour of one Govinda for consideration. The aforesaid Govinda is none other than the father-in-law of the plaintiff. The said Govinda during his life time executed Ext.A2 will bequeathing the plaint A schedule property in favour of the plaintiff. These facts are considered by the trial court while discussing the question of possession of the plaint A schedule property. 5. The defendant contended that the plaint A schedule property is a kumki legthi to the Kadim ward land to his properties The trial court noted the facts that the defendant filed appeal before the R.D.O. Kasargod and the same was dismissed as per order dated 30.8.1997, that the order of R.D.O Kasargod will go to show that the original assignee Ponnakke and prior to her, her husband has been in possession of the plaint A schedule property prior to 1969, that Ext.A1 document shows that the original assignee Ponnakke has handed over the possession over the plaint A schedule property to one Govinda, that Ext.A2 Will shows that the vendor of the testator was in possession of the plaint A schedule property at the time of execution of Ext.A1 sale deed. The trial court also took into consideration the fact that the defendant had filed a suit for injunction against the original assignee Ponnakke before the Munsiff Court, Kasargod as O.S. No. 120/1987 and the same ended in dismissal, that the R.S.A. No. 220 of 2009 -3- claim of the defendant that he has possession over the plaint A schedule property was negatived by the same court as per judgment in the said suit. 6. After relying on PW1's oral evidence the trial court held that the plaintiff has been in possession of plaint A schedule property as per Ext.A2 will by effecting valuable improvements therein , that till recently he has been residing in the house situated in plaint A schedule and as he has constructed a new residential building adjacent to plaint A schedule property, shifted his residence to the new residential building and that during rainy season in 2004 the building situated in the plaint A schedule property was collapsed The trial court concluded that now there is no building in the plaint A schedule property and the said fact is evident from Ext.C1 report. It is pertinent to note that the above oral evidence is not rebutted by the defendant and the same remains unchallenged. The trial court held that Exts.A1 and A2 documents coupled with the oral evidence of PW1 would go to show that the plaintiff is in possession of the plaint A schedule property. 7. The defendant also contended that the description , boundaries and extent of the plaint A schedule properties are not correct. The trial court noted that the description and boundaries shown in A schedule of the plaint exactly tallies with the Commissioner's report and plan and held that the description of the plaint A schedule property is R.S.A. No. 220 of 2009 -4- correct. 8. The genuineness of Ext.A2 will was also examined and the trial court further held that the plaintiff has proved the Will as contemplated under Section 63 and Section 68 of the Indian Evidence Act . 9. In Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs and others [(2008) 4 SCC 594] the Apex Court held that as a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration as without a finding thereon, it will not be possible to decide the issue of possession. But a finding on title cannot be recorded in a suit for injunction unless there are necessary pleadings and appropriate issue regarding title. In this case the issue is not regarding the title but regarding the genuineness of Ext.A2will In the above circumstances, the contention of the learned counsel R.S.A. No. 220 of 2009 -5- for the defendant/appellant to the effect that the documents produced by the plaintiff are not true and genuine and they are not admissible in evidence, cannot stand. The defendant/appellant cannot turn around and say that the genuineness of the Ext.A2 Will was not examined by the trial court. I am of the view that the trial court entered the findings on the basis of facts circumstances and evidence and the lower appellate court rightly agreed with the findings of the trial court I do not find any reason to take a different view in the given circumstances, than the views taken by the courts below. There is no scope for invoking Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 220 of 2009 ---------------------------- ORDER 6th July, 2009