IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 RSA.No. 401 of 2009() --------------------- AS.99/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.22/2005 of SUB COURT, MUVATTUPUZHA .................... 2ND APPELLANTS/APPELLANTS/DEFENDANTS -------------------------------------------------------- 1. MARY JAMES, W/O. ADAI JAMES, THOLANIKUNNEL HOUSE, KADAVOOR VILLAGE, AYAMKARA KARA. 2. SUJA JAMES, AGED 45, W/O. K.V.SUNNY, KANJIRATHINKAL, K.R.RAMACHANDRAN ROAD, THIRUVAMKULAM, THIRUVAMKULAM VILLAGE. BY ADV. SRI.S.SREEKUMAR SRI.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. SINDHU @ SUJI, W/O. GIGI GEORGE, AGED 37 YEARS, PUTHOOR HOUSE, PERUVA KARA, MULAKKULAM VILLAGE, NOW RESIDING AT NECHOOPADAM HOUSE, KADAYIRIPPUKARA, AIKKARANADU NORTH VILLAGE. 2. ADAIMARIAM SAJI @ PONNU(MINOR),D/O.SAJI, AGED 15, THOLANIKUNNEL HOUSE, AYAMKARA KARA, KADAVOOR VILLAGE, REPRESENTED BY HER MOTHER AND LOCAL GUARDIAN SINDHU @ SUJI W/O GIGI GEORGE AGED 37 YEARS , PUTHOOR HOUSE, PERUVA KARA MULAKKULAM VILAGE, KUDIYIRIPPUKARA, AIKKARANADU NORTH VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 889 OF 2009 IN R.S.A. NO. 401 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 29.05.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 401 of 2009 ---------------------------------------- Dated this the 29th day of May, 2009 JUDGMENT . This Second Appeal is directed against the judgment and decree in A.S. 99/2007 on the file of the District Court, Ernakulam which arose from O.S. 22/2005 on the file of of the Sub Court Muvattupuzha. The parties hereinafter referred to as defendants/appellants and plaintiffs/respondents as arrayed in the Suit. 2. Defendants 1 and 2 in the suit are the father-in-law and mother-in-law of the 1st plaintiff respectively. The 1st plaintiff is the wife of late Saji who is the son of the defendants The Saji has got two children including the 2nd plaintiff. The said Saji died in a road traffic accident on 31.5.1996. The plaintiffs are the legal heirs of the deceased Saji. The plaint schedule property was purchased in the name of late Saji as per sale deed No. 68/1977 and 69/1977 of Muvattupuzha S.R.O. At the time of marriage and also after the marriage Saji was in possession and enjoyment of the plaint schedule property. It is contended by the plaintiffs that after the death of Saji the defendants ill-treated the plaintiffs and consequently they took shelter in the paternal house of the 1st plaintiff. Thereafter the defendants have took the yield from the plaint schedule property and have continued in possession and enjoyment of the same. In the circumstances the suit was filed by the plaintiffs for declaration of R.S.A. No. 401 of 2009 -2- their title over the plaint schedule property and for recovery of possession of the same with mesne profits. 3. In the written statement filed by the defendants the averments in the plaint were denied. It was contended that the plaint schedule property was never been in the possession of late Saji. According to them Saji never owned , possessed , cultivated or enjoyed the plaint schedule property . The suit was resisted for other reasons also. 4. The trial court considered the issues involved in the suit on the basis of the evidence let in by the parties. Exts.A1and A2 are the certified copies of the sale deed Nos. 68/1977 and 69/1977 ( originals are Exts.B9 and B10 ) in respect of the plaint schedule property. Exts. A1 and A2 reveals that the plaint schedule property stands in the name of late Saji and the 1st defendant as guardian. 5. The trial court discussed all the factual and legal questions involved in the suit and concluded rightly that the contentions of the defendants that the transaction as per Exts. A1 and A2 was a benami transaction and that the late Saji will not get any manner of right over the plaint schedule property, were not correct . The trial court noticed the facts that the execution of Ext.A3 power of attorney by the deceased Saji in favour of the 2nd defendant and his reiteration of his title and possession R.S.A. No. 401 of 2009 -3- over the plaint schedule property by virtue of Ext.A1 and A2 in Ext.A3. The trial court also noticed that the 1st defendant was an attesting witness to Ext. A3. . 6. After considering the oral and documentary evidence in the right perspective the trial court concluded that the plaintiffs are entitled to recover possession of the plaint schedule property from the defendants on the strength of their title and the plaintiffs are also allowed to recover mesne profits at the rate of Rs. 4,000/- per annum from the date of the suit till recovery of possession or for three years from the date of decree, whichever first occurs from the defendants and their assets. 7. The defendants in the suit re-agitated all the contentions before the lower appellate Court. The lower appellate court also elaborately discussed the facts, materials and evidence and concurred with the trial court's view. 8. This appeal is filed challenging the concurrent findings of the courts below. I am of the view that the findings of the courts below are solely based on the facts and evidence. I find no reasons to interfere with the matter and to invoke Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 401 of 2009 ---------------------------- JUDGMENT 29th May, 2009