IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 SA.No. 843 of 1996(A) --------------------- AS.2/1995 of SUB COURT, PALA OS.606/1991 of MUNSIFF'S COURT, PALA .................... APPELLANT(S): APPELLANT/PLAINTIFF: ------------------------------------------------------------ MARY, W/O.THOMAS, KUTTARAPPALLIL, MELAMPARA KARA, THALAPPALAM VILLAGE. BY ADVS. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND. RESPONDENT(S): RESPONDENTS:DEFENDANTS: -------------------------------------------------------------------------- 1. OUSEPH ALIAS KUNJUNJU, MYLADOOR VEETTIL TEEKOY KARA AND VILLAGE. 2. THOMAS KUTTY, S/O. OUSEPH, OF..DO..DO.... 3. MARIAM, W/O.OUSEPH, OF...DO..DO.... R1 TO R3 BY SRI.MATHAI M. PAIKADAY, SENIOR ADVOCATE, BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss HARUN-UL-RASHID,J. ------------------------------- S.A. NO.843 OF 1996 ------------------------------- DATED THIS THE 19TH DAY OF NOVEMBER, 2010 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “i) When it is clear from Ext.A1 that the possession of the property is transferred to the assignee, whether the courts below is justified in dismissing the suit? ii) Whether the courts below is justified in relying upon the oral evidence of the defendants by invoking section 92 of the Evidence Act? iii) Under the circumstances whether the courts below is justified in discarding Ext.A1? iv) When there is clear evidence to prove possession, whether the courts below is justified in dismissing the suit on the ground that the plaintiff has not taken out a commission? v) Under the circumstances whether the courts below is justified in dismissing the suit, when there is clear evidence to prove that the plaintiff is in possession of the plaint schedule property. -2- SA.No.843/96 2. The plaintiff in O.S.No.606/91 on the file of the Munsiff's Court, Pala is the appellant. The appeal is directed against the judgment and decree in A.S.No.2/95 on the file of the Sub Court, Pala. The suit is for permanent prohibitory injunction to restrain the defendants from destroying the boundary of the plaint schedule property, entering into the property forcibly and to take income therefrom. The trial court framed necessary issues. The parties adduced both oral and documentary evidence. PW1 was examined and Exts.A1 to A6 were marked on the side of the plaintiff. DWs. 1 to 6 were examined and Ext.B1 was marked on the side of the defendants. Ext.C1 was marked as court exhibit. After trial, the learned Munsiff found that the plaintiff has not succeeded in establishing possession of the plaint schedule property. The appeal preferred by the plaintiff also stands dismissed by the Appellate Court confirming the decree and judgment passed by the trial court. 3. It is the plaintiff's case that the plaint schedule -3- SA.No.843/96 property belongs to her. She claimed title and possession by virtue of a sale deed No.242/86 dated 1-2-1986, produced as Ext.A1. Admittedly, the property lying on the east and south of the plaint schedule property belong to and is in possession of the defendants. It is also the case of the plaintiff that the plaint schedule property is bounded on all sides by separate boundaries, that the defendants are attempting to trespass into the plaint schedule property and therefore the plaintiff approached the court below for the relief as stated above. 4. The defendants denied the plaint averments and prayed for dismissal of the suit. The defendants' case is that out of the entire property i.e. 2 acres and 90 cents, 30 ¼ cents of the southern portion on the eastern side was assigned to one V.L. Joseph. The remaining 2 acres and 59 ¾ cents of property is lying as one block. The defendants also contended that the sale deed in the name of the plaintiff was executed for different purpose and was not intended to be acted upon. It is pleaded that the son-in-law -4- SA.No.843/96 of defendants 1 and 3 had borrowed some amount from the plaintiff's husband and that towards the security for the said amount Ext.A1 document was executed by the 3rd defendant in favour of the plaintiff. According to the defendants, it was not intended to be given effect nor has it come into effect. It is also pleaded that no consideration has been received for the said transaction and that even after the sale deed, the properties are lying as one block and the same is in the joint possession and enjoyment of defendants 1 and 3. 5. The question for consideration before the trial court was as to whether notwithstanding Ext.A1 under which the possession of the plaint schedule property is allegedly transferred to the plaintiff, whether the plaintiff has actually got possession of the same. In that context, the specific case of the defendants is that the son-in-law of defendants 1 and 3 had borrowed some amount from the plaintiff's husband and that when there was delay in repaying the amount as demanded by him, Ext.A1 document was executed -5- SA.No.843/96 and registered. They maintained the stand that the property continued to be in possession of the vendors and that the plaintiff never had any occasion to possess and enjoy the plaint schedule property. The trial court examined the oral evidence tendered by the plaintiff's husband, lst defendant and his witnesses, Exts.A1 to A6, B1 and C1. After considering the contentions with reference to the materials on record, the court below held that the plaintiff has failed to prove possession over the plaint schedule property. The court below also noted that the plaintiff has failed to apply for deputing a Commissioner to inspect the property for reporting the nature and lie of the properties enjoyed by the respective parties. At the same time, the court observed that at the instance of the defendants Ext.C1 report was submitted by the Commissioner and that the Commissioner as DW-6 testified before the court that the plaint schedule property is not lying separate from the remaining properties of the defendants. It is directly against the plaintiff's case that the plaint schedule property is separated by boundaries. -6- SA.No.843/96 The Commissioner is very categoric in saying that the plaint schedule property together with the other property admittedly belonging to the defendants is lying as one block. The court also accepted the circumstances stated by DW1 that Ext.A1 was executed under special circumstances and that it was never intended to come into operation. The court held that the case of the defendants appears to be more probable. After evaluating the entire evidence on record, the trial court held that the plaintiff is not entitled to the relief of injunction. 6. The Appellate Court also considered the contentions raised in the suit. For more or less the same reasons the Appellate Court held that there is no justification to interfer with the findings of the trial court. Thus the Appellate Court fully agree with the observations, conclusions and findings recorded by the trial court. 7. The findings of the trial court as well as the Appellate Court are purely based on the facts, evidence and circumstances in the case. No question of law much less any substantial questions -7- SA.No.843/96 of law arise for consideration in the second appeal. The appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.