IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 RSA.No. 1041 of 2009() ---------------------- AS.68/2003 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.675/2000 of II ADDL.M.C.,TRIVANDRUM .................... PLAINTIFF/APPELLANT/APPELLANT: ------------------------------- K VINOD KUMAR, TRUN VIEW HOUSE T C 25/2863, MATHRUBHUMI ROAD M.B.R.R.A.14A, VANCHIYOOR P O, THIRUVANANTHAPURAM-695035 BY SRI.K.VINOD KUMAR (PARTY-IN-PERSON) DEFENDANT/1st & 2nd RESPONDENT: --------------------------- K GEETHA, RESIDING AT GOVIND NIVAS T.C 25/2907, MALLOOR ROAD, VANCHIYOOR THIRUVANANTHAPURAM,-695 035 S MURUKAN BHUPATHY, RESIDING AT LAKSHMI HOUSE, T.C.25/2903(1), MALLOOR ROAD VANCHIYOOR P O, THIRUVANANTHAPURAM PIN-695 035 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.1041 of 2009 --------------------------------------- Dated this 06th day of October 2009 JUDGMENT Heard appellant who appeared in person. 2. The second appeal arises from judgment and decree of learned third Additional District Judge, Thiruvananthapuram in A.S.No.68 of 2003 confirming judgment and decree of learned Second Additional Munsiff, Thiruvananthapuram in O.S.No.675 of 2000 dismissing appellant's suit for decree for prohibitory and mandatory injunction. Respondent No.1 is the daughter of maternal uncle of appellant and respondent No.2 is his neighbour. Appellant came with the allegation that respondents are trying to grab government land acquired for laying drain. It is also alleged that respondents have created unlawful obstruction in the drain in the month of May 1996. Thereafter they have created four further successive blocks in the drain which the appellant had to remove at his cost amounting Rs.3250/-, however respondents persisted in creating blocks, the last being on 21-05-1996. Appellant approached the Sub Divisional Magistrate. Though some action was taken it was not fruitful and hence the suit. Respondent No.1 denied the allegations and contended that the description of the plaint schedule is vague and further that she did not attempt to grab government land. She denied that the government had acquired any land belonged to her. She also R.S.A.No.1041 of 2009 2 denied that she has created blocks in the drain at any point of time. According to her appellant was evicted from her house and from then onwards appellant was preferring complaints against her for one reason or the other. Respondent No.2 also denied the allegations against him and contended that the description of the plaint schedule is vague. In the trial court, appellant has gave evidence as PW1 and marked Exts.A1 to A6. Ext.A6 is the copy of schedule of the property. Exts.A1 to A5 related to the proceeding before the Sub Divisional Magistrate in M.C.No.54 of 1997. That proceeding was dropped and learned Sessions Judge confirmed that order. Respondents did not adduce any evidence oral or documentary. Learned Munsiff observed that the plaint schedule description is vague, there is no evidence to show that respondents attempted to grab government land or cause obstruction to the drain and dismissed the suit. Appellate court concurred with the findings entered by learned Munsiff and dismissed the appeal. It is contended by the appellant that courts below have not looked into the admissions made by respondents before the Village Officer who had conducted preliminary enquiry in to the matter as per the direction of the Sub Divisional Magistrate. It is also the contention of appellant that admissions made by the respondents before the Village Officer would bind them and they are estopped under section 115 of the Indian Evidence Act (for short, “the Act”) from contending R.S.A.No.1041 of 2009 3 that they had not blocked the drain. According to the learned counsel report of the Village Officer and other documents can be looked into this case by virtue of sections 42 to 43 of the Act. 3. So far as plaint schedule description is concerned learned Additional District Judge has extracted in page 6 of the judgment and I am in agreement with the learned Additional District Judge that it is vague. Order VII rule 3 of the Code of Civil Procedure require that when the suit is in respect of immovable property plaintiff has to give specific description of the property sufficient to identify the same. That provisions has not been complied. 4. There is no reliable evidence to show that respondents attempted to grab government land. So far as allegation that respondents blocked the drain is concerned, what is available is only the version of appellant as PW1. Appellant contended that failure of respondents to mount the witness box is fatal. I am not inclined to think that party concerned is always bound to mount the witness box. That depends on the facts and circumstances of the case and the nature of evidence let in. In this case there is no reliable evidence to show that respondents caused obstruction to the drain. First appellate court observed that as the drains are very old there could be blocks naturally. The documents produced as Ext.A1 to A5 do not contain report of Village Officer which appellant relied upon. Even if it is R.S.A.No.1041 of 2009 4 assumed that respondents had told Village Officer that they had blocked the drain, I am not inclined to think that section 115 of the Act would apply in that, there is no case or evidence that on any representation made by the respondents, appellant has altered his position to his detriment. Courts below have considered contention raised by appellant and found that the allegations are not proved. Consequentially appellant was non suited. That finding rest on the appreciation of the evidence. This court can interfere with a finding of fact only when it is based on no evidence or, when the finding is perverse. I do not find any such situation in this case. On going through the judgment under challenge and hearing appellant, I am satisfied that no substantial question of law is involved requiring admission of the appeal. Resultantly this second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/