IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 RSA.No. 555 of 2008 ---------------------------------- AS.133/2006 of ADDITIONAL DISTRICT COURT (ADHOC-I), ERNAKULAM OS.1398/1996 of I ADDL.M.C., ERNAKULAM .................... APPELLANT/APPELLANT/PLAINTIFF: KRISHNAN KUTTY K.C., S/O. CHOTHAN, AGED 62, KOTTAPPURATH HOUSE, THONNALLUR, MAVELLOOR P.O., VAIKOM TALUK, KOTTAYAM DIST., REP.BY P/A HOLDER VIJAYAN @ APPU, AGED 59, S/O. ANANDAN, 9/238/KUZHIKKATTIL, THOTTOOR, KAIPPATTOOR VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.N.K.MOHANLAL RESPONDENT/RESPONDENT/DEFENDANT: VILASINI, W/O. PARAMESWARAN, KUZHIKKATTIL HOUSE, KAIPATTOOR, (VIA) ARAKKUNNAM, KAIPPATTOOR P.O., ERNAKULAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2008 ALONG WITH RSA NO. 545 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.Nos.555 & 545 of 2008 --------------------------- COMMON JUDGMENT R.S.A.No.555/08 The appellant is the plaintiff in O.S.No. 1398/96 on the file of the Munsiff's Court, Ernakulam. He has filed the second appeal assailing the concurrent dismissal of his suit by the courts below. 2. Appellant as plaintiff filed O.S.No.1398/96 aforesaid for declaration of title and possession and for fixation of boundary and for injunction in relation to an extent of 10½ cents, inter alia, on the allegations that he was title holder in possession of 42 cents of land comprised in Sy.No. 154/2 of Kaippattoor Village; that he sold 31½ cents to the defendant Vilasini and now he is in possession of the remaining property having an extent of 10½ cents; that he is residing in Thonnallur in Kottayam District; that he has given permission to one Vijayan to reside in the property, constructing a shed; that the defendant RSA 555&545/08 2 Vilasini had got measured the property through the resurvey officials without notice to the plaintiff and destroyed the varamba separating her property of 31½ cents from the scheduled property having an extent of 10½ cents and that she is trying to trespass upon the property. Hence the suit. 3. The suit was resisted by the respondent/ defendant filing a written statement contending that as per Settlement Deed No.134/1957 of Mulanthuruthy Sub Registry Office, the plaintiff obtained 42 cents of land comprised in Sy.No.154/2 of Kaippattoor Village, included under plaint C schedule therein, but the actual extent of land was only 30½ cents; that the whole extent of property described in the said settlement deed obtained by the plaintiff was sold to the defendant as per Exhibit B1 sale deed of Sub Registry Office, Mulanthuruthy on 3.9.1974; that thereafter, the suit property is in her possession in absolute ownership and she is enjoying the same and that the RSA 555&545/08 3 plaintiff has no right over any portion of the property so sold to her by the plaintiff. She has also contended that she has constructed a shed and made improvements without any objection from any quarter and herself with her family is residing in the shed so constructed in the scheduled property bearing Door No.237/9; that she has constructed another shed in the said property, which bears Door No.238/9 and that is given on rent to one Vijayan, who is none other than the son of her uncle; that she purchased the property described as C schedule to the settlement deed No.134/1957; that at the time of measuring, it was found that the property is having only an extent of 31½ cents; that the suit is filed only to help Vijayan, who continues his unauthorised occupation in the shed owned by the defendant and that for getting Vijayan evicted and to have recovery of possession of the scheduled property, she has filed O.S.No.1038/01. RSA 555&545/08 4 R.S.A.No.545/08 4. The defendant in O.S.No.1038/01 on the file of the Munsiff's Court, Ernakulam is the appellant. He challenges in this appeal the decree passed by the first appellate court allowing recovery of possession of the scheduled property with damages for use and occupation and granting injunction decreeing the suit O.S.No.1038/01 in reversal of the dismissal of the suit by the trial court. The respondent is the plaintiff in the said suit. 5. The respondent as plaintiff filed O.S.No. 1038/01 aforesaid for a decree for recovery of possession of an extent of three cents of land with building bearing Door No.238/9 of Edakkattuvayal Panchayat comprised in Sy.No.154/2 of Kaippattoor Village, that being the north western portion of plaint A schedule property obtained by her under Sale Deed No.1232/1974 (Exhibit B1) of Mulanthuruthy Sub Registry Office, inter alia, on the allegations that 31½ cents of land with buildings bearing Door RSA 555&545/08 5 Nos.237/9 and 238/9 of Edakkattuvayal Panchayat in Sy.No.154/2 of Kaippattoor Village was obtained by her under Exhibit B1 sale deed of Sub Registry Office, Mulanthuruthy and that is plaint A schedule property; that she obtained the whole property within the boundaries described in the sale deed; that on 23.12.1994 she permitted the defendant, who is the son of her own uncle, to occupy the building bearing Door No.238/9 for a period of two months; that the defendant thereafter did not vacate, despite intervention of mediators; that on 21.3.2001, he made improvements in the property for which, he had no right; that now he occupies plaint B schedule portion from out of plaint A schedule property and that he has no right to continue in possession. Hence the suit. 6. The defendant resisted the suit contending that he has been permitted to occupy plaint B schedule property by one Krishnankutty, who is the predecessor in interest of the plaintiff; that RSA 555&545/08 6 Krishnankutty filed a suit as O.S.No.1398/96 against the plaintiff for declaration of his title and possession over an extent of 10½ cents, which takes in also plaint B schedule property and for fixation of boundary and for injunction and that the plaintiff is not entitled to recover the scheduled property from him. 7. On the above pleadings, the trial court raised necessary issues for trial in both the suits and both the suits were jointly tried, treating O.S.No.1398/96 as the leading case. The trial court considered the case in the light of the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 4 and DWs 1 to 6 and documentary evidence Exhibits A1, B1 to B6 and C1 to C4(a) and dismissed both the suits by a common judgment. A.S.Nos.133/06 and 162/05 were filed from the decrees and judgments respectively in O.S.Nos. 1398/96 and 1038/01 assailing the dismissal. A.S. No.133/06 was dismissed and A.S.No.162/05 was RSA 555&545/08 7 allowed decreeing O.S.No.1038/01 against the present appellant, who was the respondent in A.S. No.162/05. Hence, these Regular Second Appeals. 8. Exhibit A1 is the settlement deed where under, the appellant in R.S.A.No.555/08 got the property allotted to him included under C schedule therein. Exhibit B1 is the sale deed under which he sold the property so obtained to the respondent Vilasini. The recital in Exhibit B1 would show that the entire property, which the appellant obtained under Exhibit A1 settlement deed, included in C schedule therein, has been sold to the respondent for a consideration of Rs.650/-. Further, the description of the property in the schedule to the document also shows that what is sold under Exhibit B1 is the property of 42 cents so obtained by him, which, on measurement, was found to be only 31½ cents. It is argued by the learned counsel for the appellant that on the northern side of the property so sold to the respondent, the appellant had RSA 555&545/08 8 retained some property and that is having 10½ cents. The recital in Exhibit B1 as also the description of property in Exhibit B1 belies the case of the appellant. The boundary on the northern side of the property sold under Exhibit B1 is shown as the property of one Chacko of Kanjirathinkal House. If at all the appellant retained any portion of land on the northern side of the property sold under Exhibit B1, that would have been shown as the property on the northern side and not as the property of Chacko of Kanjirathinkal House. There is absolutely no merit at all in the contention advanced on behalf of the appellant that the appellant retained in his possession any portion of land with him after the sale to the respondent/ defendant of the property obtained by him under Exhibit A1 by Exhibit B1 sale deed. The courts below have concurrently found that the case of the appellant is not true and have rightly dismissed the suit. RSA 555&545/08 9 9. I have already found in the preceding paragraph that Krishnankutty, the vendor of the respondent in R.S.A.No.555/08, had not retained in his possession any extent of property and has sold the entire property he obtained under the settlement deed to the respondent herein vide Exhibit B1 sale deed. Consequently, therefore, the contention of the appellant in R.S.A.No.545/08 that he was given permission to occupy the building bearing Door No.238/9 by Krishnankutty, the appellant in R.S.A.No.555/08 after execution of Exhibit B1 in favour of Vilasini cannot be accepted. When the defence set up by the appellant/ defendant was found against by judgment in R.S.A. No.555/08, I cannot, but, agree with the finding of the first appellate court in A.S.No.162/05 that the appellant/defendant came into occupation of the building bearing Door No.238/9 under the respondent/ plaintiff and not under Krishnankutty, who is alleged to have given permission to him, as RSA 555&545/08 10 contended in the written statement. 10. In the circumstances, the decree granted in favour of the respondent/plaintiff in R.S.A.No. 545/08 for recovery of possession of plaint B schedule property, after demolishing the unauthorised construction effected by the appellant/defendant and with damages for use and occupation, both past and future and granting prohibitory injunction as prayed for, does not deserve to be interfered with. These appeals, in the circumstances, are bereft of any merit. There is no question of law and much less, any substantial question of law that arises for consideration by this Court in these Regular Second Appeals. These Regular Second Appeals are, hence, dismissed in limine, refusing admission. However, in the circumstance of these cases, I grant the appellant/defendant in R.S.A.No.545/08 one month's time to surrender vacant possession of plaint B schedule property with the scheduled building to RSA 555&545/08 11 the respondent/plaintiff and the execution court shall not order delivery within the said one month. 21st July, 2008 (K.P.Balachandran, Judge) tkv