IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 RSA.No. 280 of 2010() --------------------- AS.82/2007 of II ADDL. DISTRICT JUDGE/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA OS.205/2005 of MUNSIFF COURT, DEVIKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. SANKARASWAMI, S/O.MARIMUTHU PILLAI, RESIDING AT MGP IX/828, HIGH RANGE CLUB ROAD, K.D.H.VILLAGE. 2. RAMALAKSHMI, W/O.SANKARASWAMI, RESIDING AT DO. DO., DO., DO. 3. K.MUTHURAJA KUMAR, SON IN LAW OF SANKARASWAMI, AGED 36 YEARS, RESIDING AT DO.DO. DO.DO. 4. PANCHAVARNAM, DAUGHTER OF SANKARASWAMI, AGED 32 YEARS, RESIDING AT DO. DO. DO. DO. 5. UTCHUMARRIMMAL, MOTHER OF SANKARASWAMI, RESIDING AT DO. DO.DO.DO. BY ADV. SRI.T.J.MICHAEL SRI JOSE MATHEW RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- M/S TATA TEA LIMITED, A COMPANY INCORPORATED IN INDIA WITH REGISTERED OFFICE AT NO.1, BISHOP LEFORY ROAD, CALCUTTA WITH REGIONAL OFFICE AT MUNNAR, KDH VILLAGE, DEVIKULAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.280 of 2010 -------------------------------------- Dated this the 19th day of March, 2010. JUDGMENT Second Appeal arises from judgment of learned II Additional District Judge (Special Judge for NDPS Cases), Thodupuzha in A.S.No.82 of 2007 confirming judgment and decree of learned Munsiff, Devikulam in O.S.No.205 of 2005 directing appellant to surrender possession of the building and in case he failed to do so allowing respondent to recover possession of the same. According to the respondent/plaintiff, appellant No.1/defendant No.1 was an employee under it and retired on 31.10.2004. According to the appellants, appellant No.1 was appointed by respondent under a scheme as per which on his retirement another member of his family would be given employment and hence appellants are entitled to continue their occupation of the building. Further contention is that building was allotted to appellant No.1 as per provisions of the Plantation Labour Act (for short, “the Act”) and hence the suit is not maintainable. Courts below found against the contentions raised by the appellants. That is under challenge in the Second Appeal raising by way of substantial questions of law whether jurisdiction of the civil court is ousted due to existence of specific provisions in the Act and whether the decree for eviction could be sustained in the absence of proof of title of the respondent. Learned counsel for appellants contended that this being a suit for recovery, proof of title is essential. RSA No.280 of 2010 2 2. Main contention raised by the appellants is that when the suit is based on title respondent has to prove his title but the question of proof arises only when a fact is disputed. Facts which are admitted do not require proof. It is a different matter that admission will not confer title. In this case, there is no dispute that the building in question belonged to the respondent and rather, it is admitted by the appellants also that respondent allowed appellant No.1 to occupy the building belonging to it. As such, for the mere reason that documents of title pertaining to the building is not produced by the respondent it cannot be non-suited. 3. Then the next contention is that as per the scheme under which appellant No.1 was appointed, a member of his family has to be given employment on his retirement and hence appellants are entitled to occupy the building. As to that, there is no evidence nor is it shown that there is any such scheme or that respondent is bound to give employment to a member of the family of appellant No.1 and he should be allowed to occupy the building in question. 4. So far as the jurisdiction of the civil court is concerned, though learned counsel for appellants would contend that the Act provided remedy for the respondent, it is not shown that the said Act ousted jurisdiction of the civil RSA No.280 of 2010 3 court. It is settled position of law as to exclusion of jurisdiction of the civil court that when a right pre-existing at common law is also provided in the special statute and it provides for redressel of the grievance, jurisdiction of the civil court is ousted only when there is an express bar. Implied bar of jurisdiction of the civil court arises only when a right not pre-existing under the common law is created for the first time as per a special statute and that statute provides for enforcement of that right. No such situation arises on the facts of this case. As such the civil court, as rightly found by the courts below has jurisdiction to entertain the suit. On going through the judgments under challenge and hearing learned counsel I do not find any substantial question of law is involved in the Second Appeal requiring a decision. Resultantly, Second Appeal is dismissed in limine. I.A.No.690 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks