IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RSA.No. 338 of 2011 --------------------------------- AS.16/2003 of SUB COURT, CHERTHALA OS.293/2000 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/APPELLANTS/PLAINTIFF: 1. V.C.GOWRI AMMA, W/O.NARAYANAN, KONATTUSSERIL, KADAKKARAPPALLY P.O., PATTANAKKAD VILLAGE. 2. K.G.REJANI, ANAKUZHIKKAL, KURUVANKUZHI P.O., PULLATT, THIRUVALLA. 3. K.G.SOBHANAN, S/O.NARAYANAN, KONATTUSSERIL, UZHUVA MURI. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV SMT.S.JAYASREE RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. KESAVAN DIVAKARAN, THATTADIKKAL HOUSE, VAYALAR GRAMA PANCHAYATH, WARD NO.3, P.O.CHERTHALA - 688 529. 2. K.P.GOPINATHAN, DHARMA VILASAM, PATTANAKKAD VILLAGE, PATTANAKKAD GRAMA PANCHAYATH, KADAKKARAPPALLY P.O., CHERTHALA - 688 529. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.338 of 2011 --------------------------------------- JUDGMENT The legal heirs of deceased plaintiff in O.S. No.293/2000 on the file of Principal Munsiff Court, Chethala are the appellants. Defendants are the respondents. The suit was instituted seeking a decree for declaration alone without any consequential relief contending that plaintiff has perfected title to the plaint schedule properties by adverse possession and his possession was not as co-owner but asserting his independent right as a tenant. Trial court dismissed the suit. On Issue No.1, without considering the question whether a suit for declaration alone is maintainable, it was found that suit is maintainable. Plaintiff challenged the judgment before Sub Court, Cherthala in A.S.No.16/2003. On the death of the appellant, additional appellants 2 to 4 were impleaded. Learned Sub Judge, on re-appreciation of evidence, dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the appellants was heard. 3. Learned counsel argued that the suit was dismissed as the original plaintiff sought only a decree for declaration without RSA 338/2011 2 any consequential relief, without granting an opportunity to the plaintiff to amend the plaint and in such circumstances, an opportunity is to be granted to the appellants to amend the plaint as sought for in I.A.No.735/2011 filed in the second appeal. Learned counsel submitted that before the trial court, no argument was addressed by the respondents to the effect that a suit for declaration alone is maintainable and maintainability was found in favour of the plaintiff and in such circumstances, dismissal of the suit may not operate against the appellants from claiming the right available to them. The suit as framed is only one for declaration of title perfected by adverse possession. No consequential relief was sought. Such a suit is not maintainable. Therefore, no substantial question of law is involved in the appeal. Appeal is dismissed. It is made clear that, as the suit is dismissed as not maintainable, dismissal of the suit will not be a bar to the appellants to raise the claim of deemed tenancy, if otherwise entitled, in appropriate proceedings. 22nd March, 2011 (M.Sasidharan Nambiar, Judge) tkv