IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 SA.No. 736 of 2000(D) --------------------- AS.468/1994 of SUB COURT,NEYYATTINKARA OS.956/1985 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS 5 & 6: ----------------------------------------------------------------------- 1. SNEHAPPU THANKAMMA, AGED 68 YEARS, CHEMPARI ELA KANNERU PUTHEN VEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. 2. THANKAMMA RAJAMMA, AGED 53, CHEMPARITHALANIRA PUTHEN VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE. 3. THANKAMMA KRISHNAMMA, AGED 45 YEARS, MALAVILA VAZHAPPALLIKONAM, CHANALKARA VEDU. 4. THANKAMMA SASIKALA, AGED 43 YEARS, KANJIRAMTHALACKAL VEEDU, PERUMPAZHUTHOOR DESOM, PERUMPZHUTHOOR VILLAGE. 5. MUTHAYYAN JAYAN, AGED 41 YEARS, CHEMPARITHODARIKATHU VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE. BY ADV. SRI.R.S.KALKURA RESPONDENTS/RESPONDENTS/PLAINTIFF-DEFENDANTS: ----------------------------------------------------------------------------------- 1. JOSEPH THANKAPPAN, KOLLAMVILAKATHUTHALANIRA PUTHEN VEEDU, KOOVALASSERI, MANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. 2. SHEHAPPU CHELLAMMA, CHEMPARITHALANIRA ROADRIKATHU VEEDU, -DO- -DO- SA.No. 736 of 2000(D) : 2 : * 3. VARKEY GOVINDAN, CHEMPARITHALANIRA ROADRIKATHU VEEDU, -DO- -DO- (DIED) * RESPONDENTS NO.2 AND 4 TO 11 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT AS PER ORDER DTD.4.3.2003 IN MEMO BEARING CF NO.3637/2001 4. CHELLAPPAN VIJAYAN, CHEMPARITHALANIRA PURAYIDOM OF -DO- -DO- 5. JANA PAKIYAM SUBHADRAN, AGED 51 YEARS, CHEMPARITHALANIRAVEEDU, KUVALASSERI WARD, KUVALASSERI DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. 6. S.SUDHAKUMARI, AGED 32 YEARS, RESIDING AT -DO- -DO- 7. KUMARI SASIKALA, AGED 32 YEARS, RESIDING AT -DO- -DO- 8. S.RADHIKA, AGED 27 YEARS, RESIDING AT -DO- -DO- 9. SUKUMARI SUGANDHI, CHEMPARITHALANIRA PUTHEN VEEDU, MARANALLOOR DESOM, MARANALLOOR PAKUTHY. 10. SUKUMARI REMINI, -DO- -DO- 11. SUKUMARI PUSHPALATHA, -DO- -DO- ADV. SRI.P.K.IBRAHIM FOR R1,4,6-10 SRI.UDAYAKUMAR SREEDHARAN FOR R1,4,6 TO 10 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08 2011, THE COURT ON 1THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J --------------------------------------- S.A No.736 of 2000 ---------------------------------------- Dated this the 19th day of August, 2011. J U D G M E N T The 6th defendant in O.S.No.956 of 1985 and the legal heirs of the 5th defendant in the said suit are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for injunction. According to the plaintiffs they obtained plaint schedule property as per Ext.A1 dtd.6.9.1118 having a total extent of 1.35 Acres of land comprised in Survey No.383/2A. Plaint A schedule is the property and plaint B schedule are five buildings in the A schedule property. Alleging that the defendants are trying to trespass into the property and established the rights over the same, this suit was filed. 3. It appears that defendants 5 and 6 alone have contested the suit. They disputed the description of the plaint schedule property and also its identity. They claimed that they had absolute right and possession over 1.75 acres S.A No.736 of 2000 2 of land comprised in the same survey number, which they obtained under Ext.B1 dtd.30.2.1123. According to them the plaintiffs has no manner of right over the property covered by Ext.B1. It is also contended that they had obtained patta for 74 cents of land and the balance 1 Acre 1 cent is in the possession of the children of the defendants. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings issues were raised. The evidence consists of testimony of PWs. 1 to 3 and exhibits marked as A1 to A4 from the side of the plaintiffs. The defendants had Ext.B1 marked. Exts.C1 to C3(a) are the Commission report and plans. 5. The trial court on an appreciation of the evidence and accepting Ext.C2(a) plan granted a decree in favour of the plaintiffs. Defendants 5 and 6 took the matter in appeal as A.S.No.468/1994 before the Sub Court. Neyyattinkara. The lower appellate court after an independent evaluation of the evidence in the case, concurred with the trial court and confirmed the decree. That bring the defendants 5 and S.A No.736 of 2000 3 6 came before this Court. 6. Notice is seen issued on the following substantial question of law: “1. Whether the description of plaint schedule property is correct? 2. Whether the suit is bad for non-joinder of necessary parties? 3. Whether the plaintiffs have got title and possession over the plaint schedule properties? 4. Whether the plaintiffs are entitled to the declaration as prayed for? 5. Whether the plaintiffs are entitled to the injunction prayed for? 6. Whether the plaintiffs are entitled to put up boundary? If so along what lines? 7. Reliefs and Costs?” 7. Learned counsel appearing for the appellant pointed out that after having identified the property in terms of Ext.C1 report, the courts below were not justified in decreeing the suit as prayed for by the plaintiff. It is pointed out by the plaintiffs that the lower court was not justified in coming to the conclusion that the plaintiffs have proved their case. S.A No.736 of 2000 4 8. The contentions are without any basis whatsoever. Initially the Commissioner identified the property covered by the documents of the plaintiffs and Ext.C2(a) plan was prepared. Thereafter the defendants wanted identification of their property and that was done as per Exts.C3 report and C3(a) plan. However, the defendants neither produced the purchase certificate nor any documents to show that their children had right over the property as claimed by them. The result was that there was no documents to substantiate the contentions of the defendants 5 and 6 that they were obtained patta in respect of 74 cents and the children were holding 1 acre 1 cents. The lower court also found that there is no evidence adduced by the contesting defendants to show that Exts.C2 and C2(a) plan and report are unacceptable. 9. Both the court found that they remain uncontroverted. Taking those documents along with the evidence of the plaintiffs the Court below have granted a decree in favour of the plaintiffs. 10. It is significant to note that the contesting S.A No.736 of 2000 5 defendant did not go into box also. Production of Exts.B1 and C3 and C3(a) are hardly sufficient to establish claim of the defendants 5 and 6. The plaintiffs had adduced evidence to show that they were the owners in possession of the property and produced sufficient oral evidence. Moreover the property had properly identified by the Commissioner also. 11. Under such circumstances the Courts below had granted decree in favour of the plaintiffs. There is nothing to show that the findings of the Courts below are either perverse or unwarranted by the evidence on record. The appellants are unable to show that the judgments and decrees of courts below is legally and factually infirmity. This Second Appeal is without any merits and it is accordingly dismissed. P.BHAVADASAN JUDGE ab