IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 RSA.No. 518 of 2010 --------------------------------- AS.8/2004 of SUB COURT, THODUPUZHA OS.60/2002 of MUNSIFF COURT, DEVIKULAM .................... APPELLANT/APPELLANT/PLAINTIFF: RAJU BHASKASRAN, AGED 38, S/O.BHASKARAN, VEPPATTU HOUSE, PINDIMANA P.O., PINDIMANA VILLAGE, KOTHAMANGALAM. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. THE PROPRIETOR, M/S.HABITAT TECHNOLOGY GROUP, POOJAPPURA, THIRUVANANTHAPURAM. 2. P.VINOD, PROJECT ENGINEER, HABITAT TECHNOLOGY GROUP CARMEL BUILDING, MUNNAR P.O. 3. THE MANAGER, CHALAPURAM ASSOCIATED CHALAPURAM GARDENS, MULAMTHURUTH -682 314, ERNAKULAM. BY ADV. SRI.T.J.MICHAEL FOR R1 & R2 SRI.JOSE MATHEW (KAVALAKALAM) FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.518 of 2010 --------------------------------------- JUDGMENT Plaintiff in O.S.No.60/2002 on the file of Munsiff's Court, Devikulam is the appellant. Respondents are the defendants. The suit was instituted for declaration of title and for a mandatory injunction contending that he is a contractor for building construction and plaint A schedule items belong to the appellant and plaint B schedule items belong to the third respondent. Plaint B schedule items were obtained by the appellant from the third respondent on rental basis. First respondent obtained the architectural designing and supervision of the building construction of the proposed Engineering College at Munnar. The structural work was done by the first respondent and the building, as decided, is to be constructed near Munnar. Quotations were invited and appellant submitted a quotation and after several discussions, second respondent undertook the entire concrete work of the building ensuring that 23,000 sq.ft. will be allotted to the appellant and accounts will be submitted by the end of every week. As per the terms and conditions, RSA 518/10 2 during September 2001 appellant started earth work of the proposed building and in October 2001, he brought plaint A schedule items to the work site. Some of the plaint schedule items were brought from EVM's Best Wood Hotel site. On 15.5.2000, appellant purchased Item No.1 from Pachalan Kochin, though, earlier, he has been in possession of the same. He obtained plaint B schedule items on rental basis from third respondent. Difference of opinion arose for Rs.65,000/- retained by the second respondent from the account of the appellant. During middle of February 2002, an area of 4,500 sq.ft. was completed by the appellant and he sent a notice to the second respondent to settle the account. But, it was not done. When appellant tried to remove plaint A and B schedule materials, it was objected to by respondents 1 and 2. They have no right over the same and therefore, appellant is entitled to a decree declaring his title to plaint A schedule items and for taking those articles. 2. Respondents 1 and 2 resisted the suit contending that no civil work was entrusted to the appellant. He is only a labour contractor and plaint A and B schedule items do not belong to RSA 518/10 3 the appellant or third respondent and they belong to respondents 1 and 2 and appellant is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of PWs 1 to 6, DW1 and Exhibits A1 to A7, B1 to B26 and C1 and C2, dismissed the suit finding that appellant failed to establish the title to plaint A and B schedule items. Appellant challenged the judgment and decree before Sub Court, Thodupuzha in A.S.No.8/2004. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant and respondents 1 and 2, who appeared on notice issued before admission, were heard. 5. Though learned counsel appearing for the appellant argued that courts below did not appreciate the evidence in the proper perspective and should have found that appellant had undertaken the civil work and brought plaint A and B schedule items to the work site and appellant and third respondent have respective title to plaint A and B schedule items, on going RSA 518/10 4 through the judgments of the courts below, it is clear that even the identity of plaint A and B schedule items was not established. Though Commissioner noted that plaint A and B schedule items were there in the site, as rightly found by the courts below, apart from plaint A and B schedule articles, similar articles were available in the work site, which admittedly belong to respondents 1 and 2. Therefore, there is nothing to hold that the articles noted by the Commissioner either belong to the appellant or third respondent. In such circumstances, courts below were justified in finding that appellant did not establish the title claimed in the suit. Moreover, though it is contended by the appellant that he is a civil contractor, Exhibit A7 notice issued by the appellant himself establishes that he was only a labour contractor. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. 7th March, 2011 (M.Sasidharan Nambiar, Judge) tkv