IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 SA.No. 169 of 2002() -------------------- AS.71/1990 of SUB COURT, MANJERI OS.485/1985 of MUNSIFF'S COURT, MANJERI .................... APPELLANT/APPELLANT/PLAINTIFF KOTTADAN AHAMMEDKUTTY, S/O.KUNHIMOIDEENKUTTY, AGED 65 YEARS, CHERUR AMSOM, KILLIMACODE DESOM, TIRUR TALUK. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.SIBY J.MONIPPALLY RESPONDENTS/RESPONDENTS/DEFENDANTS 1. UTHANCHALIL MOIDEEN KUTTY, S/O.HYDROSE, AGED 50 YEARS, OORAKAM, KUZHUMURI AMSOM, DESOM, ERAMADU TALUK. 2. EANTHEN MULLAN ENIKUTTY, S/O. MOIDEEN KUTTY, AGED 65 YEARS, -DO- -DO- -DO- 3. MANITHODIKA CHEKKU, S/O. KUNHAMMED, AGED 70 YEARS, -DO- -DO- -DO- 4. MANITHODIKA MOIDEEN, S/O.KUNHAMMED, -DO- -DO- -DO- 5. UTHAN NELLANGARA HYDRU, S/O. ENUDHEEN KUTTY, -DO- -DO- -DO- ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J ............................................ S.A. 169 OF 2002 ................................................ Dated: 9th day of July, 2010 JUDGMENT The plaintiff in O.S. 485 of 1985 on the file of the Munsiff's Court, Manjeri is the appellant in this Second Appeal. The said suit was initially one for a perpetual injunction restraining the defendants from trespassing upon the plaint B schedule property admeasuring 38.5 cents and was subsequently amended as one for recovery of possession of plaint B schedule property on the strength of the plaintiff's title. Among the five defendants in the suit, the first defendant alone resisted the suit . The other defendants remained ex parte. The first defendant not only denied the title of the plaintiff but also set up a rival title over the plaint B schedule property. The trial court held that the plaintiff had failed to prove the title set up over the plaint B schedule property and that the defendant has better S.A. 169 OF 2002 -:2:- title over the same. The suit was accordingly, dismissed as per judgment and decree dated 17-01-1990. 2. On appeal preferred by the plaintiff as A.S. 71/1990 before the Sub Court, Manjeri, the learned Sub Judge as per judgment and decree dated 16-08-2001 dismissed the appeal. No doubt, the appellate Court observed that the first defendant did not succeed in establishing his title over the plaint B schedule property. But the lower appellate court concurred with the trial Court that the plaintiff has not established the title set up by him over the plaint B schedule property. It is aggrieved by the said decree, that the plaintiff has preferred the Second Appeal. 3. The Second Appeal was admitted by this Court on 18- 2-2002 on the following substantial question of law:- Whether on the facts and circumstances of the case the finding of the court below is contrary to the evidence of the case ? 4. It was after a careful evaluation of the oral and documentary evidence that the learned Subordinate Judge came to the conclusion that the appellant/plaintiff has failed to establish his title over the plaint B schedule property. The law is well settled that even if the defendant fails to establish the rival S.A. 169 OF 2002 -:3:- title set up by him over the plaint schedule property that cannot give the plaintiff a decree for recovery of possession on the strength of title. The plaintiff will have to establish his title and will have to stand or fall on his own evidence. He cannot pick holes in the defence and any attempt by the defendant to demolish the case of the plaintiff will not advance his own case. This principle is well settled in AIR 1925 PC 99 and AIR 1954 SC 526). Even the question formulated by this Court at the time of admitting this Second Appeal does not involve a substantial question of law. For answering that question an investigation into the facts and the evidence is inevitable, It cannot be said that the courts below have concurrently erred in coming to the conclusion that the plaintiff has failed to establish his title over the plaint schedule property. No question of law, much less any substantial question of law arises for consideration in the Second Appeal which is accordingly dismissed. Dated this the 9th day of July, 2010. V. RAMKUMAR, JUDGE. S.A. 169 OF 2002 -:4:- V. RAMKUMAR, J ............................................ S.A. 169 OF 2002 ................................................ Dated: 9th day of July, 2010 JUDGMENT