IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 RSA.No. 1307 of 2008() ---------------------- AS.71/2001 of SUB COURT, PALA OS.504/1998 of MUNSIFF'S COURT, PALA .................... APPELLANT - APPELLANT - PLAINTIFF ----------------------------------------------------- THOMMY, S/O.CHACKO, CHERUVANKALAYIL HOUSE, MEMURI, MANJOOR, KOTTAYAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT-RESPONDENT - DEFENDANT ------------------------------------- KURIEN, S/O.FRANCIS, KUDAKANADY MANNACKANAD, KURICHITHANAM, KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1307 OF 2008 --------------------------- DATED THIS THE 29TH DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.504/98 on the file of the Munsiff's Court, Pala is the appellant. This appeal is directed against the judgment and decree in A.S.No.71/01 on the file of the Sub Court, Pala. The suit was filed for declaration and prohibitory injunction. The trial court dismissed the suit, which was confirmed in appeal. Hence, this second appeal. 2. Appellant as plaintiff instituted the suit for declaration and prohibitory injunction. Plaint schedule property belongs to the defendant. According to him, on 16/2/1990 he and the defendant executed an agreement for conducting a quarry in the plaint schedule property. Going by the terms of Ext.X1 agreement the plaintiff was permitted to carry out the quarrying operation for a period of 15 years at the rate specified therein. Pursuant to the terms of agreement the plaintiff spent huge -2- R.S.A.No.1307/08 amount for the construction of a motorable road towards the quarry. The defendant in violation of the terms of agreement is trying to make all sorts of obstruction to the blasting operations in the plaint schedule property. 3. In the written statement filed by the defendant, it was contended inter alia that the agreement relied on by the plaintiff is void and the defendant is having no manner of right over the plaint schedule property at the time of execution of the alleged agreement. It is brought to the notice of this Court that the defendant in the suit through his children filed O.S.No.486/98 alleging that the property belongs to them and the defendant did not have any independent right to enter into an agreement regarding the plaint schedule property. Both the suits were tried together and were dismissed. The Appellate Court examined the questions raised by the appellant. The Appellate Court referred to Ext.X1 agreement relied on by the appellant. The Appellate Court also did not place reliance on Ext.X1 agreement for the reason that the same is an unregistered one. Since X1 is a -3- R.S.A.No.1307/08 compulsorily registrable document, both the courts below concurrently found that no reliance can be placed and no relief can be granted on the basis of Ext.X1 document. The dismissal of the suit and the appeal are based on the findings entered by the courts below, on the basis of Ext.X1 agreement and the connected suit filed by the children of the defendant. The findings are entered solely based on facts and the decision was rendered on facts and circumstances and therefore, this Court is not in a position to interfere with the findings by invoking the powers under Section 100 of the C.P.C. 4. It is seen that Ext.X1 agreement is of the year 1990 and is admittedly for a period of 15 years, the period is already over and the relief claimed on the basis of Ext.X1 agreement, even if it can be entertained, cannot be granted. In the result, the appeal fails and the same is dismissed. 8HARUN-UL-RASHID, Judge. kcv.