IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RSA.No. 962 of 2009(F) ---------------------- AS.71/2009 of D.C. & SESSIONS COURT,KOLLAM OS.159/2006 of PRL.M.C., KOLLAM .................... APPELLANT(APPELLANT,LOWER APPELLATE COURT,PLANTIFF ---------------------------------------------------------------------- S.R.A.REDDIAR AND COMPANY, REP.BY MANAGING PARTANER,A.RADHAKRISHNA REDDIAR,SRA REDDIAR AND COMPANY, LEKSHMINADA, KOLLAM. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S): (RES IN LOWER APPELLATE COURT AND DEFENDANT TRIALCOURT ----------------------------------------------------------------- 1. J.GANESH, S/O.JANARDHANA REDDIAR, "SREEDEVI", BEACH NORTH, VALIYAKADA CHERRI, KOLLAM WEST VILLAGE. 2. A.MANJULA DEVI, KUMAR GARDENS, NEAR KSRTC BUS STAND, PALLIPPAD JUNCTION, ALAPPUZHA. R1 ADV. SRI.BECHU KURIAN THOMAS FOR R1(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.S.A. NO. 962 OF 2009 = = = = = = = = = = = = = = = Dated this the 24th day of November, 2009. J U D G M E N T This is a second appeal preferred against the judgment and decree of the District Judge, Kollam in A.S.71/09. The said appeal in turn was preferred against the judgment and decree in O.S.159/06 of the Munsiff, Kollam. The suit is filed one for injunction to restrain the defendant in the suit from preventing the plaintiff using the 'C' schedule pathway. The courts below after considering the entire materials held that there is no such right for the plaintiff and hence dismissed the suit. It is against those concurrent findings the plaintiff has moved the second appeal. 2. It is a settled proposition of law that there must be substantial questions of law for the purpose of entertaining a second appeal. In the decision reported in Gurdev Kaur v. Kaki AIR 2006 (SC) 1975 the court cautioned that it must be clearly understood that the R.S.A. 962 OF 2009 -:2:- legislative intention was very clear that the legislature never want second appeal to become a third trial on facts or one more dice in the gamble. The learned counsel for the appellant had cited before me the decision of the Apex Court reported in Dubaria v. Har Prasad 2009 (9) SCC 346 wherein the Apex Court held that, “It would be open to Supreme Court to interfere with concurrent findings of fact, if the infirmity of excluding, ignoring and overlooking the abundant materials and the evidence, if considered in proper perspective would have led to conclusion contrary to one taken by the courts below.” So bearing in mind the principles laid down in these two decisions one has to analyze this case. 3. Admittedly the appellant herein was a tenant. He was a tenant of properties and only by virtue of a compromise by virtue of Ext.B2 he had surrendered certain properties. It has also to be stated that the tenant namely the plaintiff has taken the contention that he is a tenant who is not liable to be evicted as per the provisions of S.106 of the Land Reforms Act or which otherwise means that he had R.S.A. 962 OF 2009 -:3:- constructed the buildings or with the permission, is occupying the same which entitles him the protection u/s 106. Or in other words indirectly though not amounting to real fixity of tenure he contends for the position that he can never be evicted from the premises. When such was the situation the landlord and tenants entered into an agreement of compromise in a compromise petition whereby he surrenders a portion of the leasehold. It has to be remembered it is never stated in that compromise petition regarding the alleged grant of way in favour of the plaintiff. 4. The few more things that has to be looked into are that the person claims right over the property by way of implied grant as well. One expects him to state the details from whom he got it and for how long he had been using it and the manner in which he was using it. Not only mere recital is sufficient it must be supported by some tangible evidence. He claims right over the property as a tenant as early as in 1940 and the suit is filed only in the year 2006. Certainly there would have been innumerable number of persons who had seen him using that property and there must be materials also to establish the same. The R.S.A. 962 OF 2009 -:4:- Commissioner who is appointed by the Court finds a shutter and slope and holds that he is convinced that it is used as a way. I am afraid such inferences by a Commissioner in 2006 will not be sufficient evidence. The very same Commissioner says in one part of his report that he is not able to see the goods being taken out and in by using that slope. So it goes against his own report. The evidence tendered by PW1 is not sufficient to hold the same and the lower appellate court as well as the trial court has considered the question of implied grant and had arrived at a decision on facts that it is not proved. It is attempted to be projected that there is no other way but it can be seen that he is tenant of 463 as well and there are internal arrangements whereby by passing through 463 one can reach 457. The fact that there is an iron gate in the opening of 'C' schedule would reveal that a person is having absolute control over that place and if that control is a controlled one at least it must be evidenced by some semblance of a document. It is absolutely absent. So the factual findings rendered by the Court below would reveal the lack of evidence for an implied grant and as stated by me there is evidence to show that one can reach go-down R.S.A. 962 OF 2009 -:5:- No. 457 through 463. So these findings on facts have become conclusive and it is not on the basis of misappreciation of evidence or is a perverse view but on possible reasons and findings. Therefore by applying the dictum laid down in the two cases referred to by me above, this Court at this stage cannot act as a third trial Court or yet another gamble with the dice. Therefore there is no substantial question of law much less any question of law which warrants interference with the concurrent findings on facts by the Courts below. Therefore the second appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-