IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 RSA.No. 311 of 2008() --------------------- AS.81/2004 of ADDL.DISTRICT COURT, KOZHIKODE OS.169/1999 of PRL.M.C.,KOZHIKODE-II .................... APPELLANTS/APPELLANTS/PLAINTIFFS. -------------------------------------------------- 1. RARICHAN, S/O. CHEKKUTTY, AGED 73, KANNAVEETTIL HOUSE, MALAPARAMBA, CHEVAYOOR AMSOM AND DESOM, OF KOZHIKODE TALUK AND DISTRICT. 2. KUTTIMALU, D/O. CHEKKUTTY, AGED 78, KANNAVEETTIL HOUSE, MALAPARAMBA, CHEVAYOOR AMSOM AND DESOM, OF KOZHIKODE TALUK AND DISTRICT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: RESPONDENTS/DEFENDANTS. ------------------------------------ 1. VILASINI, S/O. MADHAVAN, AGED 68, KOLLARUKANDI HOUSE, CIVIL STATION P.O., NEDUNGOTTUR AMSOM AND DESOM OF KOZHIKODE TALUK AND DISTRICT. 2. NADHURAKKATTIL SADASIVAN, S/O. NARAYANAN, AGED 74, PUTHUKKUDI HOUSE, MALAPPARAMBA P.O., CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK AND DISTRICT. 3. NADHURAKKATTIL BABU, S/O. NARAYANAN, AGED 74, PUTHUKKUDI HOUSE, MALAPARAMBA P.O., CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK AND DISTRICT. 4. NADHURAKKATTIL DINESAN, S/O. NARAYANAN, AGED 74, PUTHUKKUDI HOUSE, MALAPARAMBA P.O., CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK AND DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. -------------------------------- R.S.A.NO.311 OF 2008 ---------------------------------- Dated this the 16th day of September, 2008. JUDGMENT The plaintiffs in O.S.No.169/1999 on the file of the Munsiff's Court, Kozhikode are the appellants in the second appeal filed under Section 100 read with Order 42 of CPC. 2. The questions of law formulated in the Memorandum of Appeal subsequent to the filing of the second appeal are the following: a. Whether the courts below were justified in disregarding the long possession of the plaintiffs over the property to disallow the relief of injunction simpliciter? b. Whether the courts below have properly appreciated the evidentiary value of the Advocate Commissioner's report and sketch in considering the issue of possession? c. Whether the courts below were justified in accepting the interested testimony on the respondents' side to non-suit the plaintiffs? 3. The suit referred to above was one for perpetual injunction RSA.311/08 . 2 restraining the defendants from trespassing into plaint A schedule property admeasuring 9.70 cents and from causing any obstruction to the plaint B schedule pathway exclusively enjoyed by the plaintiffs. 4. The courts below have concurrently held that the plaintiffs have failed to establish their title and possession beyond 1.75 cents of land covered by Ext. A3 certificate of purchase and that the claim of the plaintiffs over a larger extent admeasuring 9.70 cents was false. Apart from adverting to the oral and documentary evidence, the courts below have relied on the report of the commissioner as well as Exts.A1 to A3 and Ext.B1 in particular. The case of the plaintiffs that they have been in possession and enjoyment of the plaint A schedule property having an extent of 9.70 cents from 1954 onwards is not true. Merely because certain temporary constructions such as latrine, bathroom, fire shed etc were found in the property,it cannot be concluded that the plaintiffs were in possession and enjoyment of the entire property. The courts below have also held that the plaint B schedule pathway is not in the exclusive possession of the plaintiffs and that the defendants are also using the same. The suit therefore stands concurrently dismissed by the courts below. The finding entered by the courts below are pure findings of fact. RSA.311/08 . 3 Even the questions of law formulated in the Memorandum of appeal are not substantial questions of law. Hence, this Court sitting in the rarefied jurisdiction under Section 100 CPC cannot interfere with the said findings of fact. This appeal is accordingly dismissed in limine. V. RAMKUMAR,JUDGE. cl