IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 RSA.No. 445 of 2010(C) -------------------------------- (A.S. NO. 257/2009 OF DISTRICT COURT, TRISSUR DTD. 31/03/2010) ............. APPELLANTS/APPELLANTS/DEFENDANTS 1, 2 & 4: ------------------------------------------------------------------------- 1. SARADAMANI, AGED 72 YEARS, W/O.SARATH CHANDRAN, RESIDING AT VALLASSERI PARAMBIL, KAREKKAD DESOM, GURUVAYUR AMSOM, CHAVAKKAD TALUK. 2. NIRMALA DEVI, D/O.ALLIPARA CHANDRAN, RESIDING AT VALLASSERI PARAMBIL, DO....DO... 3. JAYARAJAN, S/O.ALLIPARA CHANDRAN, RESIDING AT VALLASSERI PARAMBIL, DO....DO... BY ADV. SRI.BABU CHERUKARA. RESPONDENTS/RESPONDENTS/PLAINTIFF & 3RD DEFENDANT: -------------------------------------------------------------------------------------------- 1. KUTTAN, AGED 69 YEARS, S/O.PONNARASSERRY APPUKUTTAN, KAKKASSRRY DESOM, BRAHMAKULAM AMSOM, CHAVAKKAD TALUK. 2. SASIKUMAR, S/O. ALLIPARA SARATHCHANDRAN, RESIDING AT VALLASSERIPARAMBIL HOUSE, KAREKKAD DESOM, GURUVAYUR AMSOM, CHAVAKKAD TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.445 of 2010-C ------------------------------------- Dated 3rd June 2010 Judgment Two suits were jointly tried by the Munsiff's Court, Chavakkad i.e., OS Nos.1331/99 and 320/00. 2. After trial, OS No.1331/99 was decreed and the other suit was dismissed. The second defendant in OS No.1331/99 carried the matter in appeal before the District Court, Thrissur. The District Court concurred with the finding of the Trial Court and dismissed both the appeals. Hence this Second Appeal. 3. OS No.1331/99 is treated as the main case and the facts and exhibits in that suit are referred to, for the purpose of this Second Appeal. 4. The plaintiff in OS No.1331/99 claimed to have obtained the plaint schedule property as per Ext.A2 dated 27.05.1987. Even since then, he claimed to be in absolute possession and enjoyment of the said property RSA 445/10 2 and pointed out that no one else had any right over the suit property. The first defendant is the sister-in-law of the plaintiff. The other defendants are her children. The defendants are residing on the western side of the plaint schedule property. The plaintiff is residing away from the property. According to the plaintiff, the defendants wanted the plaintiff to sell the property to them, to which he was not amenable. That infuriated the defendants, who tried to trespass into the property. The plaintiff, therefore, sought for a decree of perpetual injunction, restraining the defendants from trespassing into the plaint schedule property. 5. The defendants resisted the suit. They denied the allegations in the plaint. It was pointed out by them that the entire facts are not disclosed by the plaintiff and that he was not entitled to any reliefs. According to the defendants, the plaint schedule property is the tharawadu property. There was a partition in the year 1987. It was pointed out that there is a Sarpakavu on the western side RSA 445/10 3 of the plaint schedule property. The members of the tharawadu are, as a matter of right, entitled to worship there and the plaintiff is not entitled to obstruct them. On the basis of these contentions, they prayed for a dismissal of the suit. 6. It appears that the third defendant filed a separate written statement, raising the very same contentions raised by the other defendants. 7. The second defendant in OS No.1331/99, in turn, instituted OS No.320/00 raising allegations similar to those taken by her in the written statement filed in the other suit. As already stated, the Trial Court treated OS No.1331/99 as the leading case and evidence was adduced in the said case. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A13 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B4 marked. Exts.C1 commissioner's report and C2 sketch were also marked. RSA 445/10 4 8. On a close evaluation of the evidence in the case, the Trial Court came to the conclusion that the defendants have miserably failed to prove the customary right of the family members to worship at the Sarpakavu and the right to use the way through the plaint schedule property. Based on these findings, OS No.1331/99 was decreed and the other suit was dismissed. The said Judgment and decree was confirmed in appeal. Hence the Second Appeal. 9. The learned counsel for the appellants pointed out that the courts below have not properly appreciated the evidence in the case and has misdirected itself both on law and on facts. It is also pointed out that there is a Sarpakavu in the property owned by the plaintiffs in OS No.1331/99 and the courts below were not justified in not recognising the same just because, that is not seen mentioned in Ext.A2 document. It is also pointed out that there is a Commissioner's report, which shows the existence of Sarpakavu there. RSA 445/10 5 10. The above contentions have no basis whatsoever. As rightly noticed by the courts below, if as a matter of right, there was a Sarpakavu in the property now owned by the plaintiff to which the members of the family had access, that would have certainly found a place in the partition deed executed by the members of the tharawadu. The absence of Sarpakavu in the deed raises doubts regarding the existence of the Sarpakavu. Apart from that, Exts.C1 Commissioner's report and C2 sketch belie the claim made by the appellants. 11. The Trial Court has adverted to the Commissioner's report in detail and has found that the place where the defendants claim that a Sarpakavu existed, is in fact a pathway and that a Sarpakavu could not have been in existence at all. It is true that the Commissioner was able to locate a mandapam. But, it is far from saying that it is a Sarpakavu to which the members of the tharawadu had a right of access. It is interesting to note that the wife of the plaintiff was examined as DW3. She RSA 445/10 6 spoke against the defendants and they stood by her evidence. 12. The contention raised by the learned counsel for the appellants that there is yet another Commissioner's report that would justify their stand, cannot be countenanced. There is only one Commissioner's report marked in this case and there was nothing to show that there was another report by another Commissioner. If as a matter of fact, the appellants were aggrieved by the Commissioner's report now marked, it was for them to file objection to the report and have it set aside. Both the courts below have chosen to accept the report and have come to the conclusion that the claim of the plaintiff in OS No.1331/99 is true. It is significant to notice that the lower Appellate Court has independently considered the evidence on record and found that the existence of a Sarpakavu is without any basis. It is a finding of fact with which this Court cannot interfere. Therefore, no questions RSA 445/10 7 of law arise for consideration in this appeal. The appeal is devoid of any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta RSA 445/10 8