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. 554 of 2010 ----------------------------- (AS.NO.140/2008 OF III ADDL. DISTRICT COURT, KOLLAM, OS.NO.475/1991 OF MUNSIFF-MAGISTRATE COURT, PARAVOOR) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- RAJENDRAN, S/O.BALAKRISHNAN, PUTHUVILA VEEDU, KOONAYIL, PARAVUR, KOLLAM DISTRICT. BY ADVS. SMT.T.S.MAYA (THIYADIL), SMT.PRINCY XAVIER. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. BALAKRISHNAN, PUTHUVILAVEEDU, KOONAYIL, PARAVUR [DIED][IST PLAINTIFF IN OS.474/1991]. 2. SUSHAMA SREEKUMAR, REPRESENTED BY MADHAVAN, PADINJARE ARANINNAVILA VEEDU, KOTTAPURAM, PARAVUR, KOLLAM. FROM NEELAGIRI, KOONAYIL, PARAVUR [11TH DEFENDANT]. 3. N.DHARMARAJAN, NEELAGIRI, KOONAYIL, PARAVUR, FROM VADAKKUMVILA VEEDU, KOTTAPURAM, PARAVUR.P.O, KOLLAM.[2ND ADDITIONAL DEFENDANT] 4. MRIDULA, DEEPTHI, CHERUKUNNAM, VARKALA [DIED] [3RD DEFENDANT]. 5. N.PANKAJAM, J.H.RESIDENCY, 2-D, THANPANNOOR, THIRUVANANTHAPURAM FROM NISHA BHAVAN, POOTHAKULAM, PARAVUR [4TH DEFENDANT]. 6. SUMANGALA NEELAKANDAN, NEELAGIRI, KOONAYIL, PARAVUR, NOW RESIDING AT SREESHYLAM, TC-4-2552[2] , KURUNGANNOOR, PATTOM, THIRUVANANTHAPURAM [DIED] [5TH DEFENDANT]. R.S.A. NO. 554/2010: 7. ASHA VENUGOPALAN, 7A ANASUYA AVENUE, ORMES ROAD, KILPUR.P.O, TAMIL NADU,[6TH DEFENDANT] 8. ABHA KRISHNAN, 7A ANASUYA AVENUE, CRMES, KILPUR.P.O, TAMIL NADU, [7TH DEFENDANT]. 9. ARYA S.JAYARAJ, BHAVANI NIVAS, CHAYAKKUDI ROAD, PETTAH, THIRUVANANTHAPURAM, NOW RESIDING AT SREESHYLAM, TC-4-2552[2], KURUNGANNOOR, PATTOM, THIRUVANANTHAPURAM. [8TH DEFENDANT]. 10. ANAND C.KESAVAN, 7A ANASUYA AVENUE, ORMES ROAD, KILPUR.P.O, TAMIL NADU[9TH DEFENDANT] 11. CHANDRIKA RAJAN, SREELATHAYIL, TC 4/866, PARVATHI NAGAR, KOWDIAR.P.O, THIRUVANANTHAPURAM.[DIED][10TH DEFENDANT]. 12. SHEELA RAJAN, SREELATHAYIL, TC 4/866, PARVATHI NAGAR, KOWDIAR.P.O, THIRUVANANTHAPURAM.[ADDNL.11TH DEFENDANT]. 13. SREEJA RAJAN, SREELATHAYIL, TC 4/866, PARVATHI NAGAR, KOWDIAR.P.O, THIRUVANANTHAPURAM.[ADDNL.12TH DEFENDANT]. 14. GEETHA RAJAN, SREELATHAYIL, TC 4/866, PARVATHI NAGAR, KOWDIAR.P.O, THIRUVANANTHAPURAM.[ADDNL.13TH DEFENDANT]. 15. SANDEEP, S/O.MRIDULA, DEEPTHI, CHERUKUNNAM, VARKALA. [ADDNL.15TH DEFENDANT]. 16. SMITHA, D/O.MRIDULA, DEEPTHI, CHERUKUNNAM, VARKALA. [ADDNL.16TH DEFENDANT]. 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.554 of 2010 ------------------------------------- Dated 3rd June 2010 Judgment Undaunted by the concurrent findings against him, the plaintiff has come up in appeal before this Court. 2. The suit relates to a shop room, bearing No.8/135 situated by the side of a public road. The plaintiff claimed to be in absolute possession and enjoyment of the suit property. The plaintiff claimed to have been conducting a textiles business therein. He claimed that the structure was put up by his funds and it belongs exclusively to him. It is conceded that the property in which there is a shop room, belongs to the defendants. Earlier, there was a shop room which was let out to a Handloom Co-operative Society. The Society vacated in 1975 and thereafter, the building remained unattended to by anybody. 3. The further allegation is that the building was in a dilapidated condition and ultimately it fell down. In its RSA 554/10 2 place, a new structure was put up by the plaintiff. The plaintiff claimed to have made entry into the property on 02.04.1978. Pointing out that if at all the defendant had any right over the property, it has been lost by adverse possession and limitation. 4. The suit was laid for declaration and for consequential reliefs. It appears that during the pendency of the suit, the defendant died and his legal heirs were brought on the party array. In the written statement filed by the defendants, they disputed the allegations made in the plaint. It is pointed out that the plaint schedule property belonged to the original defendant, which was earlier let out to Nedumgolam Handloom Co-operative Society for a monthly rent of Rs.60/-. The rent had been paid regularly till 1979. Thereafter, it was kept in arrears and a suit was laid for recovery of arrears of rent. The contention of the defendants is that in order to escape from the liability of paying the rent, the Society clandestinely sublet the plaint schedule shop room to the plaintiff. They disputed the RSA 554/10 3 claim made by the plaintiff that the shop room where the Society was carrying on the business had fallen down and the plaintiff had put up the new structure. According to the defendants, the plaintiff had been inducted into possession of the plaint schedule property by the Society. Pointing out that the plaintiff has no ownership over the property, they prayed for dismissal of the suit. 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B9 marked. Ext.C1 Commissioner's report and C1(a) mahazar were also marked. 6. On a consideration of the evidence in the case, the Trial Court came to the conclusion that the plaintiff has miserably failed to establish the claim put forward by him and accordingly, dismissed the suit. It was found that the claim made by the plaintiff that he had put up a new structure in the plaint schedule property, was not RSA 554/10 4 substantiated. 7. In appeal, the Appellate Court on revaluation and re-appreciation of the evidence in the case, came to the same conclusion and dismissed the appeal. Hence this Second Appeal. 8. The learned counsel for the appellant points out that the courts below have not appreciated the evidence in the proper perspective and that has resulted in miscarriage of justice. It was also pointed out that the Commissioner's report would indicate that the structure occupied by the plaintiff is different from the rest of the structure, which has been omitted to be noticed by both the courts. It is further pointed out that the plaintiff is threatened with forcible dispossession by the defendants. 9. The courts below have independently evaluated the evidence and found that the allegation in the plaint remains unsubstantiated. The definite stand in the plaint was that the earlier structure which was given on rent to the society had fallen down and a new structure had RSA 554/10 5 been put up by the plaintiff in its place. Apart from the deposition of PW1, there is nothing to establish the said fact. The Commissioner's report clearly belies the claim of the plaintiff. The Commissioner's report would reveal that the structure now claimed is one which was given on rent and the age of the structure is the same as the other structures in the property. It is this fact, which made the Trial Court take a view against the plaintiff. One must notice that the very foundation of the case of the plaintiff is that he had put up a new structure in the plaint schedule property. When that is found to be false, their case falls to the ground. May be that there is no evidence to show that the plaintiffs have not been paying rent to the defendants. But, that by itself is not a ground to come to the conclusion that the plaintiff gets title over the property. In fact, the defendants had examined DW3, the Secretary of the Society, whose evidence also went against the plaintiff. Whatever that be, the courts below have found that there is absolutely no evidence at all to show that the plaintiff had RSA 554/10 6 put up the structure in question. The courts below have appreciated the evidence in the proper perspective and have come to the right conclusion. It is essentially, a finding of fact based on evidence. No grounds are made out to interfere with the said finding. No questions of law arise for consideration in this appeal. 10. The appeal is devoid of any merits and it is accordingly dismissed. The judgments of neither the courts below nor this court shall stand in the way of the plaintiff filing such remedies available to him in law. P.BHAVADASAN, JUDGE sta RSA 554/10 7