IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 RSA.No. 533 of 2009() --------------------- AS.123/2008 & ORDER IN I.A. NO.3293of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1476/2005 of PRL.M.C.,ERNAKULAM .................... : APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. A.T.VELAPPAN,AGED 74 YEARS, S/O.(LATE) AMACHADI THEVAN, AMACHADI THURUTH POOTHOTTA P.O. PIN-682307,ERNAKULAM. 2. A.T.PRABHAKARAN, AGED 67 YEARS, S/O.LATE AMACHADI THEVAN, AMACHADI THURUTH, POOTHOTTA P.O. PIN-682307.ERNAKULAM. BY ADV. SMT.C.G.BINDU RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------------------------- SALLY MANOJ AGED 37 YEARS, W/O.MANOJ KURIAKOSE, KUTTOM PARAMBIL (H) AMACHADI THURUTH, POOTHOTTA P.O. PIN - 682307,ERNAKULAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 533 of 2009 ---------------------------------------- Dated this the 27th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No.123/2008 and in the order in I.A No. 3293/2008 , on the file of the Vith Additional District Court,Ernakualm which arises from the judgment and decree in O.S. No. 1476 of 2005 on the file of the principal Munsiff's Court, Ernakulam. The respondent herein as plaintiff filed the suit and obtained an order of permanent prohibitory injunction restraining the defendants, their men, and agents from trespassing into the plaint schedule property and from reducing any portion of the property into their possession and causing any obstruction to the plaintiff in doing anything in the plaint schedule property and from doing anything detrimental to the plaintiff's right, title, interest, peaceful possession and enjoyment of the plaint schedule property . The suit was decreed as prayed for. The parties hereinafter referred to as plaintiff and defendants as arrayed in the Suit. 2. The defendants filed appeal before the lower appellate court with a petition for condoning the delay in filing that appeal. When the delay condonation petition was taken up for consideration by the lower appellate court, there was no representation either from the defendants or from their counsel. So the lower appellate court dismissed the delay condonation petition. Consequently the appeal was also ended in dismissal. Hence the second appeal. 3. I have heard the learned counsel for the defendants/ R.S.A. No.533 of 2009 -2 appellants in detail. The said suit is for injunction filed by the transferee of one A.T.Narayanan who is the brother of the two defendants in the suit. It is evident from the facts and evidence that, before purchase of the plaint schedule property by the plaintiff, the title and extent of property held by the three co-owners namely the two defendants and the aforesaid Narayanan is 1.17 acres of land in Survey No.314/1 of Manakunnam Village in Udayamperoor Panchayahth. 4. The plaintiff claims title, ownership and possession in respect of 34 Cents by virtue of Ext.A1sale deed No. 3224/1/03 executed by Narayanan in favour of the plaintiff and Ext,A2 original land tax receipt. The suit property is a portion of 1.17 acres as mentioned above. In fact an extent of 1 acre and odd cents of Kayal Puramboke was assigned to defendants and Sri.A.T.Narayanan by the Tahsildar, Kanayannur Taluk during the year 1971. Accordingly defendants and A.T. Narayanan obtained pattyam for 34 Cents of land each in Sy.No. 314/1/1.The defendants mortgaged their respective properties with the bank for the purpose of availing loan and the said Narayanan did not mortgage his property. The matters be so, the said Narayanan sold his property to the plaintiff without the knowledge of the defendants. After purchasing Narayanan's property the plaintiff effected mutation and paid land tax The suit was filed by the plaintiff complaining that the defendants may try to trespass into her property R.S.A. No.533 of 2009 -3 5. The defendants resisted the suit by raising many contentions and prayed for dismissal of the suit. They also prayed for a permanent prohibitory injunction against the plaintiff from trespassing upon the entire 1.17 acres of land . 6. The trial court after referring to the pleadings and evidence, rightly held that the plaintiff established title ownership and possession by virtue of Exts. A1 and A3 documents that the plaintiff's property of 34 Cents is in Re-Survey No. 51/1968 ( Old Sy.No. 314/1 )of Manakunnam village is lying contiguously with the defendants' properties comprised in Re.Survey Nos 51/67 and 66. The trial court noted that the defendants have obtained separate purchase certificates from the Government for 34 cents each, that the defendants mortgaged their respective shares of property and obtained loan for the purpose of developing their property, that the said Narayanan has not mortgaged his share of property ,instead he sold the same to the plaintiff. 7. The trial court after considering all the facts, circumstances and evidence held that the defendants and the said Narayanan after obtaining pattayams and were in possession and ownership of their properties separately, the Narayan bonafidely sold his property to the plaintiff. The trial court accordingly passed a decree of permanent prohibitory injunction as prayed for in favour of the plaintiff. 8. Before the lower appellate court, apparently the defendants were not vigilant in prosecuting the appeal. They filed the appeal with a R.S.A. No.533 of 2009 -4 petition to condone the delay. When the petition for condoning the delay was taken up for consideration neither the defendants nor their counsel were present. So the lower appellate court dismissed the delay condonation petition and the consequent passed dismissing the appeal. 9. For the purpose of examining whether the defendants/appellants have a genuine case, I have gone through the reasonings and findings of the courts below and heard the learned counsel for the defendants/appellants at length. I find that the trial court passed the decree after considering all the relevant aspects. In the circumstances I am of the view that it is not necessary to admit this second appeal, by issuing notice to the respondents . No questions of law much less any substantial question of law arises for consideration int his appeal. There is no scope for invoking this Court's jurisdiction under Section 100 of the C.P.C.. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No.533 of 2009 ---------------------------- JUDGMENT 27th july, 2009