IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 RSA.No. 485 of 2011() --------------------- AS.171/2005 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.238/1999 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- K.OMANA, AGED 50 YEARS, D/O.VELUTHAKUNJU, KITTAN, MANNANETHU VEETTIL, EREZHA VADAKKUM MURI, KANNAMANGALAM VILLAGE. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- RAGHAVAN, S/O.RAMAN, VALLIYATHU VEEDU, PELA MURI, KANNAMANGALAM VILLAGE - 690 106. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.485 OF 2011 ............................................ DATED THIS THE 12th DAY OF JULY, 2011 JUDGMENT Plaintiff in O.S.No.238 of 1999 on the file of Munsiff Court, Mavelikkara is challenging the concurrent decree passed by the courts below dismissing the suit seeking a decree for permanent prohibitory injunction. Appellant contended that the plaint schedule property originally belonged to her father and from 1970 onwards, she has been in possession and enjoyment of the property and her possession was open, peaceful, uninterrupted and hostile and therefore she perfected her title by adverse possession and on 24.5.1999, respondent and some others made an attempt to trespass into the property and they have no right over it and therefore they are to be restrained by a permanent prohibitory injunction. 2. Respondent resisted the suit contending that he filed O.S.398 of 1988 before the same court for partition and the father of the appellant was the 8th defendant in that suit and during the pendency of the suit, he died and the legal heirs were RSA 485/2011 2 impleaded and the preliminary decree was passed and later a final decree was also passed and as against the final decree, A.S.157 of 1994 was filed before the Additional District Court, Mavelikkara, which was dismissed and from 1980 onwards, appellant has been residing in Ernakulam with her husband and the suit was instituted at the instance of the defendants 9 to 12 in O.S.398 of 1988 and appellant was only aged 11 years in 1970 and she is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of Pws 1 and 2, DW1, Exts.A1, A2, B1 to B4 and C1 dismissed the suit holding that the plaint schedule property was the decree schedule property in O.S.398 of 1988 and when the final decree was sought to be executed, appellant had filed E.A.268 of 2000 in E.P.99 of 1999 evidenced by Ext.B5, the same contentions were raised therein and the application was dismissed and hence the plea of the appellant is barred by resjudicata and hence she is not entitled to the decree sought for. Appellant challenged the judgment before Additional District Court, Mavelikkara in A.S.171 of 2005. Learned Additional District Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the RSA 485/2011 3 appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and on evidence it should have found that appellant has established her possession of the plaint schedule property and a decree should have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit is only one for injunction. Appellant claimed that she was put in possession of the property by her father in 1970, and has been in possession of the property since then and her possession was adverse to the true owner and therefore she has perfected title. Appellant did not dispute the fact that respondent instituted O.S.398 of 1988 evidenced by Ext.B4 judgment and her father was the 8th defendant in that suit and as against the judgment, A.S.63 of 2001 was filed which was dismissed under Ext.B4 judgment. Courts below also found that appellant had in fact filed E.A.268 of 2000 before the executing court and by Ext.B5 order, the application was dismissed and that application filed under Rule 97 of Order XXI of Code of Civil Procedure was dismissed RSA 485/2011 4 and suppressing that fact, the suit was instituted. When under Ext.B5 order, the case of the appellant was rejected and no appeal was filed as against it, as rightly found by the courts below, it is binding on the appellant. On the evidence, courts below rightly found that appellant is not entitled to the decree for injunction sought for. As no substantial question of law is involved in the appeal, it is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk