IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 RSA.No. 782 of 2008() --------------------- AS.359/2006 of DISTRICT COURT,KOLLAM OS.418/1986 of MUNSIFF COURT, KOTTARAKKARA ................... APPELLANTS/APPELLANT 1, 3TO6 AND ADDL.APPELLANTS 7/DEFENDANTS: -------------------- 1. YOHANNAN MATHAI, AGED 58, PUTHEN VEEDU, AYAPPALLOOR MURI MELILA VILLAGE, KOTTARAKATRA TALUK 2. SOSAMMA AMMINI AGED 63, PUTHEN VEEDU, AYAPPALLOOR MURI MELILA VILLAGE, KOTTARAKKARA TALUK. 3. SOSAMMA KUNJUMOL, 55 YEARS, PUTHENVEEDU, DO.DO. 4. SOSAMMA ACHAMMA, AGED 53, PUTHEN VEEDU, DO.DO. 5. SOSAMMA GRACY AGED 48, PUTHEN VEEDU, DO.DO. 6. YOHANNAN UMMACHAN, AGED 45, PUTHEN VEEDU DO.DO. BY ADV. SRI.G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA RESPONDENTS/RESPONDENTS/PLAINTIFF AND ADDL. DEFENDANT NO.7 --------------------- 1. MARIAMMA ANNAMA, AGED 54, PEEDIKAYI VEEDU PAZHAYATHERUVU, KIZHAKKEKKARA, KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK. 2. YOHANNAN BABU @ YOHANNAN OOMMACHAN, AGED 52, PUTHEN VEEDU, PAZHAYATHERIVU, KOTTARAKKARA, KOTTARAKKARA VILLAGE KOTTARAKKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.782 OF 2008 --------------------------- DATED THIS THE 26TH DAY OF AUGUST, 2009 JUDGMENT Defendants in O.S.No.418/1986 on the file of the Munsiff's Court, Kottarakara are the appellants. This appeal is directed against the judgment and decree in A.S.No.359/2006 on the file of the District Court, Kollam. The suit was filed for declaration of title of the plaintiff over item No.1 of plaint schedule property, for declaration and recovery of possession over the same from the defendants with mesne profits, for permanent prohibitory injunction and for fixation of boundary. The suit was decreed by the trial court and confirmed in appeal. Hence, this Second Appeal. 2. The suit property is 27 cents. It is the plaintiff's case that 85 cents of property including item No.1 of plaint schedule property originally belonged to the deceased father of the plaintiff and after his death, the property devolved on his legal -2- R.S.A.No.782/2008 heirs including the plaintiff. In the partition deed executed between the sharers on 6/1/1979 62 cents of property including item No.1 are allotted to the plaintiff and thus she came into possession and enjoyment of the same. The lst defendant is the owner of the property on the southern side of item No.1. It is stated that he influenced the Village Officer and with the fraudulent intention of creating some right over item No.1, paid land tax with respect to 62 cents of property including the plaint schedule property and at his instance Suo Motu Procedings are initiated by the Land Tribual, Kottarakara as SMP.No.1538/76 alleging that 50 cents out of the aforesaid 62 cents of property is in his possession by virtue of an oral lease arrangement for the last 40 years and therefore the said property is vested in the Government by virtue of Section 72 of the Kerala Land Reforms Act. After enquiry, the Land Tribunal dropped the S.M. Proceedings on 31/3/1977 holding that the lst defendant is not entitled to get tenancy right over the property. It is further stated -3- R.S.A.No.782/2008 that the lst defendant and his men trespassed into the property item No.1 on 15/1/1979 and demolished the boundary demarcating item No.1 and 10 cents of property on the southern side, wherein the defendants are residing, and attempted to construct a foundation basement for the purpose of constructing a building near the old well standing on the north-eastern portion of item No.1. Subsequently, the defendants constructed structures, which are item No. 2 and 3 of the plaint schedule property. 3. In the written statement filed by the defendants it is contended that item No.2 building is constructed by the 2nd defendant and that he is residing therein, that the description of the plaint schedule property is fraudulent, that the plaint schedule property is in their possession and that the plaintiff or her predecessor never enjoyed the property. It is also contended that the defendants have perfected title by adverse possession and limitation. -4- R.S.A.No.782/2008 4. Item No.1 of plaint schedule property as per the description in the plaint is 35 cents comprised in Sy.No.399/16 and 399/17. The description further shows that there is an extent of 62 cents of property and out of the same 52 cents of property is comprised in Sy.No.399/17 and the remaining 10 cents is comprised in Sy.No.399/16 and out of 62 cents, 10 cents on the northern side comprised in Sy.No.399/16 and 17 cents comprised in Sy.No.399/17 are in the possession of the plaintiff as well as in the possession of the vendee of the plaintiff's sister and that the plaint schedule property is 35 cents on the southern side leaving the said 27 cents. The plaintiff's case is that she obtained title over the plaint schedule property by virtue of Ext.A1 partition deed. Ext.A1 shows that the plaintiff is allotted item No.2 of B schedule property. Item No.2 of B schedule property in Ext.A1 shows that it is 52 cents. 5. The trial court, after examining the oral and documentary evidence, held that the contention of the defendants that the -5- R.S.A.No.782/2008 property described in the plaint schedule is wrong and fraudulent and no such property as described in the plaint schedule existed is wrong. According to the defendants, the property scheduled in the plaint is their property and they are having possession and enjoyment. The trial court, relying on Ext.A1title deed, Ext.A2 series of tax receipts, Ext.C1 report and Ext.C2 plan, held that the description of the plaint schedule property is correct and that such property is in existence and is in the possession of the plaintiff. Ext.A2 (a) and A2(b) are the land tax receipts, which show that the Thandaper holder of the property is the plaintiff. Exts.A2 (a), A2(b) and A2(c) also show that the plaintiff paid land tax for the property comprised in Sy.No.399/17 having an extent of 52 cents . 6. The Commissioner appointed at the instance of the plaintiff measured the property with the help of survey records and located the same. According to Ext.C2 report, the property possessed by the defendants is not 10 cents, but they are having -6- R.S.A.No.782/2008 excess land of 1.5 cents and the total extent is 11.5 cents. The said property is comprised in Sy.No.399/17 as per Ext.C2. 7. The trial court also examined the questions raised by the defendants. The contention of the defendants that the plaint schedule property is in their possession and enjoyment from 1106 onwards and if so, even if the plaintiff had got any right over the same she has lost her right by adverse possession and limitation, was also examined in detail. Exts.B1 and B2 were perused by the trial court. Exts.B1 and B2 show that the defendants obtained right over 10 cents and excess land. The trial court further observed that from the eluka description in Exts.B1 and B2, it is very clear that 10 cents and excess land are on the northern and southern sides of lanes and that it is very difficult to accept the case of the defendants because it is not reasonable and probable to think that for 10 cents of registered land there will be an excess of 35 cents. The trial court relied on Ext.C2 report which shows that the excess land mentioned in Exts.B1 and B2 is -7- R.S.A.No.782/2008 only 1.5 cents. The trial court also held that there is no independent evidence adduced by the defendants to prove that they have obtained possession of the plaint schedule property in continuation of their predecessor-in-interest from 1109 onwards. 8. The trial court examined Ext.A4, which is the order in S.M.P.No.1905/1976. The S.M.P. was found against the defendants and the Land Tribunal dropped the said SMP finding that the defendants are not entitled to tenancy right. The trial court also relied on Ext.A1 and A2 series which show that the plaint schedule property belonged to the plaintiff and she is in possession and enjoyment till 15/1/1979, the date on which the defendants trespassed upon the same. The trial court held that the eluka description shown in Exts.A1, B1 and B2 would show that the plaint schedule description is correct. The trial court also relied on Ext.C1 and C2 in support of the above said findings. It also examined the oral evidence of PW-1, documentary evidence namely, Exts.A1, A2 series, B1, B2, C1 and C2 and the -8- R.S.A.No.782/2008 admissions made by DW-1 during cross-examination and concluded that the plaint schedule description of the property is correct, that the defendants have right over plaint item No.1 and possession before 15/1/1979 and that the plea of adverse possession put forward by the defendants is not sustainable and not proved. In the light of the said findings, the trial court held that the plaintiff is entitled to declaration of her title over item No.1 and recovery of possession. Aggrieved by the said judgment and decree passed by the trial court, the defendants filed an Appeal A.S.No.359/2006. The Lower Appellate Court also examined the contentions raised by the appellants. The Lower Appellate Court agreed with the findings of the trial court and held that the conclusions arrived at by the trial court is based on the pleadings in the case and after analysing the evidence adduced by the parties. The Appellate Court also considered all the questions raised by the appellants. In the Second Appeal the learned counsel for the appellants raised contentions, which are -9- R.S.A.No.782/2008 considered, discussed and decided against the appellants. In my view, the decision taken by the trial court, which was confirmed in appeal, is based on the evidence on record both oral and documentary. I do not find any reason to interfere with the findings arrived at by the courts below. The findings arrived at are purely based on the facts, circumstances and probabilities. I find that no sustainable grounds are made out by the appellants to invoke this Court's jurisdiction under Section 100 C.P.C. No questions of law much less any substantial questions of law arises for consideration in this appeal. In the result, the appeal fails and is dismissed in limine. HARUN-UL-RASHID, Judge. kcv.