IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 SA.No. 830 of 2000(F) --------------------- AS.26/1992 of SUB COURT,ATTINGAL OS.272/1987 of MUNSIFF COURT,VARKALA .................... APPELLANT/APPELLANT/DEFENDNT: ------------------ KANNAN SUKUMARAN, CHARUVILA VEEDU, MUHOORTHA KUNNU, VATTAYAM, PALLICKAL DESOM & VILLAGE, PULLOOR MUKKU, KALLAMBALAM, TRIVANDRUM DISTRCT. (DIED) SUPPL.2. C. KOCHAPPI, W./O.LATE KANNAN SUKUMARAN, AGED 68 YEARS. '' 3. S. RADHAMANI, D/O.LATE KANNAN SUKUMARAN, AGED 47 YEARS. '' 4. S. RAGINI, D/O.LATE KANNAN SUKUMARAN,AGED 43 YEARS. '' 5. S. BABY, D/O.LATE KANNAN SUKUMARAN, AGED 38 YEARS. (ALL ARE RESIDING AT POYKAVILA VEEDU, PULLORMUKKU, KALLAMBALAM POST, THIRUVANANTHAPURAM) . SUPPLEMETAL APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LRS OF THE DECEASED APPELLANT AS PER ORDER DATED 18/9/07 IN I.A.NO.835/06. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR (MOHANKUMAR ASSOCIATES) SRI.K.JAYESH MOHANKUMAR RESPONDENT/RESPONDENT/PLAINTIFF: ------------------- KANNAN KAMALA AMMA, CHARUVILA VEEDU, VATTAYAM, VELAMANNOOR CHERI, KALLUVATHUKKAL VILLAGE. BY ADV. SRI.M.BALAGOVINDAN SRI.VINOD J.DEV SRI.P.C.HARIDAS SRI.P.M.JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010 , THE COURT ON THE SAM DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.830 OF 2000 ------------------------------- DATED THIS THE 29TH DAY OF JULY, 2010 JUDGMENT Defendant in O.S.No.272/87 on the file of the Munsiff's Court, Varkala is the appellant. This appeal is directed against the judgment and decree in A.S.No.26/92 on the file of the Sub Court, Attingl. The suit was filed for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. The plaintiff claimed title and possession on the strength of Ext.A1 partition deed dated 23/4/1987. The trial court granted a decree as prayed for. The same was confirmed in appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. It is the plaintiff's case that she is in absolute possession and enjoyment of the plaint schedule property in the partition effected in the family of the plaintiff and defendant. The -2- S.A.830/2000 plaint schedule property was allotted to the plaintiff by virtue of Ext.A1 deed. The defendant got another item of property. The defendant is the brother of the plaintiff. Apprehending trespass the plaintiff filed the suit for injunction. 3. The defendant in his written statement denied the averments in the plaint and prayed for dismissal of the suit. According to the defendant, he is not a signatory to the partition deed, the recitals in the partition deed are not binding on him, that the plaintiff has no right or possession over the plaint schedule property, that the defendant and his Uncle deceased Chinnan reduced the plaint schedule property into their possession and improved the same, that the defendant is residing with his family in the building situated in the plaint schedule property, that Chinnan was also residing in the said building till his death, that the building situated in the plaint schedule property is numbered as house No.236-A of Pallickal Panchayat and that the plaintiff is not entitled to any relief as prayed for in -3- S.A.830/2000 the suit. The plaintiff filed a replication reiterating the plaint averments and denied the material averments in the written statement. 4. Plaintiff was examined as PW1 and Pws.2 to 5 were examined and Exts.A1 to A18 were marked on her side. Dws.1 to 3 were examined and Exts.B1 to B2 were marked on the side of the defendant. Exts.X1 to X3 were marked as court exhibits. Ext.A1 is the partition deed, Ext.A5 is the letter sent by the Executive Officer, Pallickal Panchayat to the Plaintiff's Counsel. Ext.A6 and A7 are the voters' lists of Ward Nos.1 and 3 of Pallickal Panchayat and Karavaram Panchayat. Ext.A10 is the certified copy of the building tax assessment register issued by the Chathannoor Panchayat. Exts.A13 and A13(a) are the notices, Ext.A14 is the voters' list, Ext.A15 is the ration card, Ext.A16 is the certified copy of declaration submitted by the defendant before the Taluk Supply Officer, Chirayinkeezhu for renewing the existing ration card and Exts.A17 and A18 are the voters' -4- S.A.830/2000 lists. Ext.B1is the certified copy of the building tax assessment register and Ext.B2 is the ration card. Exts.X1 and X3 are the documents mainly relied on by the trial court to decide the question as to whether the plaintiff is in possession of the plaint schedule property or not. The trial court also examined the oral evidence of the plaintiff, defendant and their witnesses. The oral evidence tendered by the parties are also appreciated by the courts below. After examining the oral and documentary evidence adduced by the parties, the trial court held that the defendant had at no point of time resided in the plaint schedule property and that the case put forth by the defendant is that he is in possession of the property and is residing in the property. After analysing the evidence on record, the trial court held that the plaintiff is entitled to the relief for injunction finding that she is in possession of the plaint schedule property. 5. The defendant preferred an appeal. The Appellate Court also examined the evidence on record, discussed -5- S.A.830/2000 the contentions of the appellant and respondent and arrived at the very same conclusions of the trial court. The Appellate Court held that the defendant's claim of possession over the plaint schedule property has no factual foundation. Considering the facts and probabilities the Appellate Court confirmed the findings of the trial court. Plaintiff is the sister of the defendant. To substantiate the case of the defendant attempts were made to prove that the defendant is residing in the plaint schedule property. The evidence on record produced by the plaintiff, which was relied on by the courts below, would go to show that the defendant was residing in the building situated within the area of Karavaram Panchayat. Both the courts below also placed reliance on Exts.A5 and A8 certificates and Ext.A16 declaration of the defendant before the Taluk Supply Officer in Form No.1. This declaration was made in the year 1985. In Ext.A16 the defendant stated that he is residing in Ward No.1, House No.1/745 in Karavaram Panchayat. Several declarations would -6- S.A.830/2000 falsify the defendant's case that he is the permanent resident of the plaint schedule property, which is situated in different Panchayat by name Pallickal Panchayat. All these materials were considered in order to assess as to who is in possession of the property. I do not find any reason to interfere with the findings of fact entered by the courts below. No question of law much any substantial questions of law arise for consideration in the appeal. 6. The suit is of the year 1987. The appeal is pending for the last ten years. The additional appellants filed I.A.No.1906/2010 requesting this Court to receive in evidence Annexures-1 to 5 documents as additional evidence. Three documents produced are of the years 1982, 1984 and 1988. No reasons are stated for producing these documents before the trial court before trial. The 4th document is a cancelled one and the other document is a copy of the application dated 18/9/2001 for assignment of land. Moreover, all the documents including the -7- S.A.830/2000 application dated 18/9/2001 are not relevant for deciding the dispute between the parties. Therefore, I/A.No.1906/2010 stands dismissed. 7. I do not find any reason to interfere with the findings of fact entered by the courts below. No question of law much any substantial questions of law arise for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv