IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 RSA.No. 844 of 2008() --------------------- AS.48/2000 of SUB COURT, CHERTHALA OS.348/1986 of ADDL.MUNSIFF COURT,CHERTHALA .................... (S): APPELLANTS/APPELLANTS/ADDL.PLAINTIFFS 3 TO 5 ---------------------------------------------------------------- 1. VISWAMBARAN, S/O.GOVINDAN, KALAPURACKAL, EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. 2. PRAKASINI, D/O.NARAYANI, POZHIYIL, PALLURUTHY, KOCHI-6. 3. UNNIKRISHNAN, S/O.GOVINDAN, KANNAMTHARA, (KALAPURACKAL), EZHUPUNNA SOUTH, KODAMTHURUTH VILLAGE. BY ADV. SRI.V.L.SHENOY SRI.L.JAYAWANTH RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SOLOMAN, S/O.APPACHAN, PUNNAKOLITHARA PURAYIDOM, EZHUPUNNA SOUTH, KODAMTHURUTHU, CHERTHALA. 2. KUNJAMMA, W/O.MORRIS, (MARAMVEETTIL), KARUMANCHERIL, EZHUPUNNA SOUTH. 3. K.M.THANKAMMA, D/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 4. K.M.STANLEY, S/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 5. K.M.MOLLUKUTTY, D/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 6. K.M.VALSAMMA, D/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 7. K.M.PAUL, S/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 8. K.M.GEORGE, S/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 9. K.M.BENNET, S/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 10. K.M.KAIS, S/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. 11. K.M.KUNJUMOL, D/O.MORRIS, KARUMANCHERIL, EZHUPUNNA SOUTH. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... R.S.A. No. 844 of 2008 ................................................... DATED: 31-10-2008 JUDGMENT Plaintiffs 3 to 5 in O.S. 348 of 1986 on the file of the Addl. Munsiff's Court, Cherthala are the appellants in this Second Appeal. The said suit was originally one for a perpetual injunction against trespass into the plaint schedule property admeasuring 57 cents of land. Pending suit, the plaint was amended as one for declaration of title and for recovery of possession of the plaint 'C' schedule property admeasuring 2.52 cents which is claimed to be part of the plaint B schedule admeasuring 5 cents which in turn is claimed to be part of plaint A schedule property admeasuirng 57 cents. The first plaintiff who died pending suit was the wife of the 2nd plaintiff who also died pending suit. Plaintiffs 3 to 5 who are the appellants herein are the children of plaintiffs 1 and 2. The title and possession over R.S.A. No. 844 of 2008 -:2:- plaint A schedule property was claimed under Ext.A1 sale deed dated 20-3-1956 which was executed in favour of the first plaintiff 's wife by certain members of the family of the 2nd plaintiff including the second plaintiff. There were 46 executants under Ext.A1 sale deed. Ext.A1 sale deed does not recite actual handing over of possession of the property conveyed thereunder to the first plaintiff. On the contrary, it contains a recital that the first plaintiff has to redeem the prior mortgage in respect of the property and obtain possession. Ext.A2 is a consent deed executed subsequently on 14-5-1956 by the other members of the second plaintiff's family signifying their consent to Ext.A1 document. 2. The suit was resisted by the defendants contending inter alia that the plaintiffs had no possession over any portion of the plaint A schedule property so as to maintain the action for injunction or for seeking recovery of a portion thereof. R.S.A. No. 844 of 2008 -:3:- 3. The 5th plaintiff was examined as P.W.1. He confessed that he does not know whether possession of the properties were actually handed over under Ext.A1 sale deed. Except stating from the witness box that the prime mortgage was redeemed, there was no evidence worthwhile to indicate the redemption of the prior mortgage or any of the plaintiffs taking possession of the property conveyed under Ext.A1. Exts. A3 and A4 mortgages of the year 1981 and 1984 respectively said to have been executed by the plaintiffs were pressed into service by the plaintiffs to show that the property had been mortgaged in favour of the Ezhupunna Service Co- operative Bank. In the first place, there was no evidence as to whether the actual possession of the property was handed over to the bank. Secondly, they are not documents which are binding on the defendants who are not parties to the same. Both the courts below have came to the conclusion that the plaintiffs who even as per the R.S.A. No. 844 of 2008 -:4:- recitals under Ext.A1 did not get possession of the property did not succeed in establishing that they are in possession of the plaint schedule property. The relief of perpetual injunction as well as recovery of possession was thus denied to the plaintiffs. It is aggrieved by the concurrent findings that the plaintiffs have come up in Second Appeal. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 31st October 2008. Sd/-V. RAMKUMAR, JUDGE. /true copy/