IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RSA.No. 424 of 2008 --------------------------------- AS.13/2001 of SUB COURT, NEDUMANGAD OS.134/1999 of ADDL.MUNSIFF COURT, NEDUMANGAD .................... APPELLANTS/DEFENDANTS: 1. KRISHNAMMA, D/O.MARIA, ROADARIKATH VEEDU, KAZHAKUNNU, CHULLIMANOOR P.O., THIRUVANANTHAPURAM. 2. PRABHA, D/O.KRISHNAMMA, DO. 3. BABY, S/O.KAMALA BAI, DO. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT/PLAINTIFF: M.JOHNY, S/O.MANUEL, ROADARIKATH VEEDU, P.P.1/402, KAZHAKUNNU, CHULLIMANOOR P.O., THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 424 of 2008 --------------------------- JUDGMENT The defendants in O.S.No.134/99 on the file of the Additional Munsiff's Court, Nedumangad are the appellants. The respondent is the plaintiff in the said suit. The respondent filed O.S.No.134/99 aforesaid alleging, inter alia, that he is the owner in possession of plaint 'A' schedule property having an extent of twenty one cents comprised in R.S.No.1845/1 of Panavoor Village, he having acquired the same under Exhibit A1 sale deed dated 16.10.1986 of Sub Registry Office, Nedumangad; that he constructed a building having four rooms and a veranda; that the said building is plaint 'B' schedule; that on 19.12.1995, on the request of the first defendant, who is his sister, he granted permission to her to reside in plaint 'B' schedule building along with the respondent and his family on account of love and affection towards her; that on 12.10.1998, the first appellant/first defendant, RSA 424/08 2 without the permission of the respondent/plaintiff, brought defendants 2 and 3 as well and started residing in the said building and that was objected to by him; that demand to surrender vacant possession of the building was turned down by the defendants; that consequently, notice was issued through lawyer demanding surrender of the building, but the defendants have not acceded to the demand and therefore, a decree be passed ordering eviction of the defendants from plaint 'B' scheduled building and restraining the defendants from trespassing into plaint 'A' schedule property and committing waste therein. 2. The appellants, who were the defendants in the suit, filed a joint written statement. According to them, the scheduled property originally belonged to one Anchi, who is a close relative of the first defendant. The first defendant and her family members were residing in the plaint 'B' schedule building for the last twenty years. The first defendant had no knowledge RSA 424/08 3 regarding sale of plaint 'A' schedule property by Anchi in favour of the plaintiff. The first defendant agreed to purchase the plaint 'A' schedule property and the building therein from the plaintiff for a consideration of Rupees thirty five thousand and the plaintiff executed an agreement for sale in favour of the first defendant, agreeing to sell plaint 'A' schedule property for a consideration of Rupees thirty five thousand, after receiving an amount of Rupees thirty thousand as advance and possession of plaint 'A' scheduled property and the building therein was handed over to her and ever thereafter she is in possession and enjoyment of the scheduled property. She further contended that she got employment abroad and left India, leaving her children and mother in the scheduled property; that on return to India she decided to construct a residential house in the place of the existing one and constructed the house in the scheduled property, spending her own money and utilising the loan granted by the Local RSA 424/08 4 Panchayat under the JRY Scheme and that therefore, the plaintiff is not entitled to the relief of recovery of possession as prayed for. It is also pointed out that suit is bad for non-joinder of all necessary parties, as the daughter and the son-in- law were not made parties to the suit. 3. The trial court framed necessary issues on the above pleadings and considering the case in the light of the evidence adduced, which consisted of oral evidence of PW1 and DWs 1 to 3 and documentary evidence of Exhibits A1 to A4, B1 to B3 and X1, decreed the suit directing the defendants to surrender vacant possession of plaint 'B' schedule building to the plaintiff within one month and on their failure, allowing the plaintiff to get them evicted from plaint 'B' schedule building through process of court and granting permanent prohibitory injunction in favour of the plaintiff restraining the defendants from trespassing into plaint 'A' schedule property or committing any waste therein. The plaintiff was also allowed to realise the cost RSA 424/08 5 of the suit from the defendants and from their assets. 4. The defendants, who are the present appellants, filed appeal before the first appellate court as A.S.No.13/01 and that was dismissed confirming the correctness of the decree and judgment passed by the trial court. Hence this appeal by the defendants against the concurrent judgments of the courts below. 5. It is contended before me by the learned counsel for the appellants that no evidence is adduced by the respondent/plaintiff to show that he has constructed plaint 'B' schedule building in plaint 'A' schedule property and that therefore, it should not have been found by the courts below that plaint 'B' schedule building belongs to the respondent/plaintiff, especially when Exhibit X1 register evidenced that tax for the building was being paid by the first defendant. There is no merit in the said contention. When plaint 'A schedule property belongs to the respondent/ RSA 424/08 6 plaintiff, plaint 'B' schedule building also belongs to him and to claim title over plaint 'B' schedule building, it is not necessary that he should adduce evidence regarding its construction by him. 6. In the memorandum of appeal, four points are raised as substantial questions of law, which are neither questions of law and much less, any substantial question of law. There is absolutely no question of law and much less, any substantial question of law, to be considered by this Court in this appeal. This Regular Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 22nd May, 2008 (K.P.Balachandran, Judge) tkv