IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RSA.No. 918 of 2008(A) ------------------------------ AS.83/2005 of SUB COURT, MANJERI OS.713/1990 of MUNSIFF COURT, MANJERI .................... APPELLANTS/APPELLANTS/SUPPLEMENTAL PLAINTIFFS 2 TO 7 : ------------------------------------------------------------------------------ 1. PATHUNNI, W/O.LATE KADAKKADAN AYITHRASUKUTTY HAJI CHENGOTTUR AMSOM, KOLKALAM DESOM, ERNAD TALUK 2. ABDUL MAJEED, S/O.LATE KADAKKADAN AYITHRASUKUTTY HAJI, CHENGOTTUR AMSOM, KOLKALAM DESOM, ERNAD TALUK. 3. RABIYA, D/O.LATE KADAKKADAN AYITHRASUKUTTY HAJI, CHENGOTTUR AMSOM, KOLKALAM DESOM, ERNAD TALUK 4. FOUSIYA,. D/O.LATE KADAKKADAN AYITHRASUKUTTY HAJI, DO.DO. 5. MOHAMMED FAISAL, DO.DO. 6. AKBAR, (MINOR) S/O.LATE KADAKKADAN AYITHRASUKUTTY HAJI (REP. BY GUARDIAN 1ST APPELLANT PATHUNNI) BY ADV. SRIC.M.MOHAMMED IQUABAL RSA.No. 918 of 2008(A) RESPONDENTS/RESPONDENTS/DEFENDANTS : --------------------------------------------------------- 1. OLAKARA KUNHIMOOSA, S/O.KUNHI POCKER HAJI CHENGOTTUR AMSOM, KOLKALAM DESOM, ERNAD TALUK. 2. SHOUKATHALI, S/O.KADAKKADAN AYITHRASU KUTTY HAJI, NOW EMPLOYED AT U.A.E. PB.NO.20449, A1 MARKANIYA, AL AIN, UAE. 3. SIDHEEK UMMER, S/O.KADAKKADAN AYITHRASUKUTTY HAJI NOW EMPLOYED AT KSA, P.B.NO.7603, BURAIDHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR, J. ---------------------------------- R.S.A. No.918 OF 2008 ---------------------------------- Dated this the 19th day of November, 2008 JUDGMENT The legal representatives of the plaintiff in O.S.No.713 of 1990 on the file of the Munsiff's Court, Manjeri are the appellants in this Second Appeal. The said suit was originally one for perpetual injunction against trespass and was subsequently amended as one for recovery of possession of the plaint A schedule property admeasuring 3 cents which was alleged to be portions of items 1 and 2 of the plaint B schedule property. According to the plaintiff, item 1 of plaint B schedule property admeasuring 35 cents was obtained by the plaintiff as per Ext.A1 Verumpattam assignment deed dated 07.04.1975 and item 2 of the plaint B schedule property admeasuring 21 cents belongs to the plaintiff as per Ext.A2 Verumpattam assignment deed dated 03.05.1975. While so, the defendants who are neighbours trespassed into the plaint A schedule property which is about 3 cents in the year 1990. 2. The suit was resisted by the defendants contending inter alia as follows : R.S.A.918 of 2008 2 The identity of the properties shown in the plaint cannot be ascertained from the description shown in the plaint. The plaintiff has no right or possession over the property which is in the possession of this defendant and which belongs to him. The disputed property is not included in any of the documents referred to by the plaintiff. The disputed property and the property lying on its south eastern boundary belonged to one Chathilamadathil Moideenkutty as per registered lease deed No. 11/1931 and after several transactions, the property was eventually purchased by this defendant and his brother, Rayankutty. Thereafter the said property has been in the possession of this defendant and his brother. The property has definite boundaries. The plaintiff has not established right of possession over the plaint schedule property. 3. The learned Munsiff after trial, as per judgment and decree dated 30.09.2002 dismissed the suit holding inter alia that the plaintiff has not identified the plaint schedule property as per Exts.A1, A2 and A4 documents. On appeal preferred by plaintiffs as A.S.No.83 of 2005 before the Sub Court, Manjeri, the lower appellate court dismissed the appeal R.S.A.918 of 2008 3 confirming the judgment and decree passed by the trial court. Hence, this Second Appeal. 4. Learned counsel appearing for the appellants made the following submissions before me : Pending the matter before the lower appellate court the plaintiffs had filed an application for amendment of the plaint so as to incorporate the proper description of the plaint A schedule property in terms of the report and plan submitted by the Commissioner. The said application was dismissed along with the appeal. The court below have not properly appreciated the evidence on record and has not considered the submissions. 5. I am afraid that I cannot accept the above submissions. The suit was filed in the year 1990 and the last report and plan of the Commissioner were submitted on 22.06.2001. Nothing prevented the plaintiffs from amending the plaint A schedule to make its description in conformity with the identification made by the Commissioner. The suit itself was disposed of only on 30.09.2002. The appeal was filed in the year 2005. It was thereafter that the petitioner for the R.S.A.918 of 2008 4 first time filed an application in the year 2007 for amendment of the plaint schedule. The said application was rightly rejected by the lower appellate court which concurred with the findings of the trial court that the plaintiffs have failed to identify the suit properties so as to seek the decree for recovery of possession prayed for by them. The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration. The questions of law formulated in the memorandum of appeal do not arise for consideration in this Second Appeal which is dismissed in limine. V.RAMKUMAR, JUDGE pac