IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 RSA.No. 124 of 2009() --------------------- AS.39/2008 of II ADDL.SUB COURT,ERNAKULAM OS.717/1988 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/RESPONDENT/DEFENDANT:- ---------------------------------------------- KUNJAPPAN, S/O.SANKU KANATHUMALAYIL HOUSE, PALAKUZHA KARA, PALAKUZHA VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN RESPONDENT/APPELLANT/PLAINTIFF:- ------------------------------------------- GEORGE AGED 52 YEARS, S/O.PATHROSE, VAIMPILLIL HOUSE, PALAKUZHA KARA, PALAKUZHA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 124 of 2009 ========================== Dated this the 29th day of January, 2009. JUDGMENT The defendant in O.S. No. 717 of 1988 on the file of the Munsiff's Court, Muvattupuzha is the appellant in this Second Appeal. The said suit instituted by the respondent herein was one for declaration of title and for prohibitory and mandatory injunctions. The plaint schedule property is admeasuring 3.275 cents with a bunk shop thereon. This litigation had a checkered career wherein in two of the earlier rounds of litigation, the appellant had succeeded in non-suiting the plaintiff. Finally, the lower appellate court namely the Sub Court, Ernakulam in A.S. No. 39 of 2008 granted a decree to the plaintiff. 2. The case of the plaintiff was that the plaint schedule property was purchased by the plaintiff from one Varghese as per Ext.A1 sale deed dated 14.06.1988. The aforesaid 3.275 cents together with the bunk shop thereon is abutting the Muvattupuzha-Thodupuzha main road. The defendant was conducting the bunk shop on the northern corner of the property R.S.A. No. 124 of 2009 : 2 : after having obtained a licence from the plaintiff's vendor in the year 1983. Subsequent to Ext.A1 purchase, the plaintiff obtained title over the plaint schedule property. Since the defendant is in occupation of the plaint schedule property as a licencee under the vendor of the plaintiff, the plaintiff revoked the licence by a pre-suit notice. In spite of the notice, the defendant did not vacate from the plaint schedule property including the bunk shop. Hence the suit. 3. The suit was resisted by the appellant/defendant contending inter alia as follows:- The plaintiff has no title over the plaint schedule property. The plaint allegation that the bunk shop was entrusted with the defendant as a licencee in the year 1988 is not correct. He has been in possession of the bunk shop right from the year 1983 and has been in exclusive possession and occupation of the same as a lessee and not as a licencee. The title, if any, of the plaintiff is lost by adverse possession and limitation. 4. The lower appellate court has after a careful reappraisal of the oral and documentary evidence, come to the conclusion R.S.A. No. 124 of 2009 : 3 : that the appellant was only a licencee in respect of the bunk shop in question and that the plaintiff was entitled to the mandatory and prohibitory injunction as prayed for as also the declaration that he is having title over the plaint schedule property. The lower appellate court also found that the title of the plaintiff has not been lost by adverse possession and limitation. The said findings are pure findings of fact arrived at after a re-appraisal of the oral and documentary evidence in the case. In the light of the decision of the Apex Court in P.T. Munichikkanna Reddy & others v. Revamma & others (2007 (6) SCC 59), the finding regarding the adverse possession also cannot be successfully assailed by the appellant. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed. 5. The appellant who has been in possession of the bunk shop in question right from the year 1988 onwards, is given six months' time from today to vacate the plaint schedule property R.S.A. No. 124 of 2009 : 4 : including the bunk shop thereon on the appellant filing an affidavit before the Executing Court within one month from today undertaking that he shall surrender vacant possession of the plaint schedule property including the bunk shop thereon within six months from today and also undertaking that he shall not induct strangers in the property or commit any act of waste until the vacant possession is handed over to the plaintiff. Dated this the 29th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 124 of 2009 : 5 :