IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 RSA.No. 762 of 2008(G) --------------------- AS.13/1998 of SUB COURT, TIRUR OS.231/1996 of MUNSIFF COURT, TIRUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS 1TO4,7 AND LRS OF PLAINTIFFS 5 & 6 ----------------------------- 1. CHEKKUMARAKKARAKATH ABDURAHIMAN S/O. KOYAKUNHIYAKATH THEKKE OTTAYIL HAMZA AGED 48 YEARS. 2. CHEKKUMARAKKARAKATH SULAIKHA D/O. HAMZA,AGED 44 YEARS 3. CHEKKUMARAKKARAKATH MAHARUNNISSA, D/O. HAMZA,AGED 38 YEARS. 4. CHEKKUMARAKKARAKATH KUNHIPATHUMMA W/O. KOYAKKUNHIYAKATH THEKKE OTTAYIL HAMZA AGED 72 YEARS. 5. VADAKKE EDIVETTIYAKATH MUHAMMAD @ BAPPUTTY HAJI,S/O.CHEKKUMARAKKARAKATH THOLANTAKATH MAMMUKUTTY, AGED 82 YEARS. 6. CHANNIRIYAKATH PERINCHERIYIL FATHIMA D/O.LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER AGED 43 YEARS. 7. FOUSIYA, D/O.LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER AGED 29 YEARS. 8. CHANNIRIYAKATH PERINCHERIYIL KUNHEEMA UMMA, W/O.LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER AGED 57 YEARS. 9. HASI, S/O LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER AGED 24 YEARS. R.S.A.NO. 762/2008 : 2 : 10. NIZAR S/O LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER AGED 22 YEARS. 11. KOYAKUNHEEYAKATH THEKKE OTTAYIL KADEEJAKUTTY, D/O.CHANDIRIYAKATH PERINCHERI ALAVI AGED 58 YEARS. 12. MOIDEEN S/O. CHANDIRIYAKATH PERINCHERI ALAVI, AGED 40 YEARS. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 7 AND PLAINTIFFS 8 TO 11 -------------------------------------------------- 1. AALIKANAKATH ZAINABA UMMA, D/O. ALALIKKANAKATH MOIDEENKUTTY AGED 67 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 2. KADAVANDI VALAPPIL K.V.BHASHEER MASTER S/O.AALIKANAKATH ABOOBACKER, AGED 60 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 3. KADAVANDI VALAPPIL ABDULLAKUTTY S/O. AALIKANAKATH ABOOBACKER, AGED 55 YEARS, P.B.NO. 1339,ALIAN ABUDHABI, U.A.E 4. KADAVANDI VALAPPIL FATHIMA BEEVI, D/O. AALIKKANATH ABOOBACKER, AGED 52 YEARS, RESIDING AT PUTHAM VEEDU NEAR SCHOOL,CHEERAN KADAPPURAM, P.O.TANUR, PIN 676 302. 5. PAKKAYANMAKKANAKATH AYISHAKUTTY W/O. AALIKANAKATH ABOOBACKER, AGED 74 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 6. PAKKAYANMAKKANAKATH UMMER S/O.AALIKKANAKATH ABOOBACKER, AGED 44 YEARS,RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. R.S.A.NO. 762/2008 : 3 : 7. PAKKACHANMAKKATH ZUBAIDA, D/O.AALIKKANAKTH ABOOBACKER, AGED 39 YEARS, RESIDING AT PALAKKAD TALUK PALAKKAD AMSOM DESOM. 8. VADAKKE EDIVETTIYAKATH FATHIMA D/O. VADAKKE EDIVETTIYAKATH ABDURAHIMAN AGED 67 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 9. VADAKKE EDIVETTIYAKATH ABDULLAKUTTY, S/O.VADAKKE EDIVETTIYAKATH ABDURAHIMAN AGED 57 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 10. OTTAYIL AALIKANAKATH ABDULLA S/O. MUHAMMAD HAJI, AGED 77 YEARS RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 11. VADAKKE EDIVETTIYAKATH UMMUHYMANA D/O. ABDULLA, AGED 31 YEARS, RESIDING AT PACHATTIRI AMSOM PARAVANNA DESOM, TIRUR TALUK. 12. C.P.MUSTHAFA S/O. LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER, P.B.NO. 6780,SHARJAH, U.A.E.. 13. C.P.HAMZA, S/O. LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER, P.B.NO. 4558,SHARJAH, U.A.E.. 14. KAMARUDHEEN S/O. LATE KOYAKUNHIYAKATH THEKKE OTTAYIL ABOOBACKER,AGED 30 YEARS, RESIDING AT PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK. 15. AHMMED S/O.CHANDIYIYAKATH PERINCHERI ALAVI, AGED 50 YEARS, RESIDING AT PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A No. 762 of 2008 ========================== Dated this the 22nd day of September, 2008. JUDGMENT Plaintiffs 1 to 4 and 7 and legal representatives of plaintiffs 5 and 6 in O.S. No. 231 of 1996 on the file of the Munsiff Court, Tirur are the appellants in the Second Appeal. The said suit was one for perpetual injunction against trespass. Both the courts below have concurrently found that the plaintiffs have failed to establish their possession of the plaint schedule property having an extent of 45 cents with a building thereon on the date of the suit. The said finding being a finding on facts, this Court will be loath to interfere with the said finding sitting in the rarefied jurisdiction under Section 100 r/w Order 42 C.P.C in the absence of a substantial question of law arising out of the litigation. 2. The learned counsel for the appellant further submitted that even though the suit was one for injunction, the courts below have virtually held that the plaintiffs have failed to establish their title over the plaint schedule property. Since the main issue which was taken for trial is as to whether the plaintiffs have got possession over the plaint schedule property and also since no court fee was paid under Section R.S.A. NO. 762/2008 : 2: 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959, the observations and findings regarding title can only be held to be incidental to the finding regarding the possession and cannot be taken as a finding on title for which there was no issue. Clarifying this position, this Second Appeal is dismissed. Dated this the 22nd day of September, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. NO. 762/2008 : 3: