IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 SA.No. 889 of 1996(E) --------------------- AS.10/1993 of D.C. & SESSIONS COURT,KOLLAM OS.178/1989 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- JANARDHANAN PILLAI BABU, SAJI BHAVAN, PUNTHALATHAZHAM CHERRY, VADAKKEVILA VILLAGE FROM VILAYILKKAVU VEEDU, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM. BY ADV. MR.P.B.SURESH KUMAR(QUILON) MR.R.MANOJ RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------- BHANUMATHY AMMA KUMARI AMMA, GOVERNMENT SERVANT, VILAYILKKAVU VEEDU, MEENATHUCHERRY, KOLLAM VILLAGE. ADV. MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE MR.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------- S.A.No.889 of 1996 -------------------------- Dated this the 19th day of May, 2010 J U D G M E N T The plaintiff in O.S.No.178 of 1989 on the file of the Munsiff Court, Kollam is the appellant. The suit was filed for permanent prohibitory injunction. The trial court dismissed the suit. The lower appellate court confirmed the decree and judgment passed by the trial court. The defeated plaintiff has preferred the appeal. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff and defendant are husband and wife. Later, their relationship got strained and consequently, the plaintiff left the company of the defendant. It is the case of the plaintiff that the defendant had attempted to erect a hut in the plaint schedule property and to reduce the plaint schedule property into her possession. In the circumstances, the suit was filed praying to restrain the defendant and her supporters from trespassing into the plaint schedule property and preventing the plaintiff from enjoying the property. In the written statement S.A.No.889 of 1996 2 filed by the defendant she denied the plaint averments and contended that she is in absolute possession of the plaint schedule property. 3. The plaintiff did not enter the box. His father was examined as PW1. PW2 was also examined on the side of the plaintiff. DWs 1 and 2 were examined on the side of the defendant. Exts.A1, A2 & B1 were also marked. 4. Trial court examined the rival contentions of the parties on the basis of oral and documentary evidence. Taking notice of the conduct of the plaintiff in keeping away from the court, the court observed that the plaintiff is reluctant to testify before the court. After appreciating the entire evidence, the trial court held that the plaint averments coupled with the evidence of DWs 1 & 2 and Ext.B1 would show that the defendant is in possession of the property. The lower appellate court re- appreciated the evidence in the light of the grounds urged by the appellant/plaintiff. The lower appellate court on consideration of the facts and circumstances held that there is no positive proof to accept the contention raised by the appellant. The lower S.A.No.889 of 1996 3 appellate court also came to the same conclusion that the defendant is in possession of the property. The findings recorded by the trial court and the lower appellate court are solely based on the facts, circumstances and evidence. This Court finds that the appellant failed to made out any ground for interference under Section 100 of the Code of Civil Procedure. No question of law muchless any substantial question of law is raised in the appeal. In the result, the second appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-