IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 RSA.No. 145 of 2009(A) ---------------------- AS.39/2007 of SUB COURT, QUILANDY OS.2/2007 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... APPELLANT/APPELLANT NO.2/2ND DEFENDANT: ----------------------------------------------------------- UMMAR,S/o.ABDURAHIMAN, KUNEEMMAL HOUSE,VANMUKAM AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/RESPONDENTS & 1ST APPELLANT/PLAINTIFFS & DEFENDANT Nos.1 & 3: ---------------------------------------------------------------- 1. VAZHAKKANDI MUHAMMED JAFAR, S/O.KUNHABDULLA, VANMUKAM AMSOM, VEEMANGALAM DESOM, KOYILANDY TALUK. 2. FARISHA, D/O.KUNHABDULLA,VAZHAKANDI HOUSE, VANMUKAM AMSOM,VEEMANGALAM DESOM, KOYILANDY TALUK. 3. FASILA, D/O.KUNHABDULLA, VAZHAKKANDI HOUSE,VANMUKAM AMSOM, VEEMANGALAM DESOM,KOYILANDY TALUK. 4. VAZHAKKANDI MUHAMMED SAMEER, S/O.KUNHABDULLA, VAZHAKKANDI HOUSE, VANMUKAM AMSOM,VEEMANGALAM DESOM, KOYILANDY TALUK. 5. K.P.ASSAINAR, S/O.ABDURAHIMAN, KUNEEMMAL HOUSE,VANMUKAM AMSOM,DESOM, P.O.KATALUR, KOYILANDY TALUK. ADV. SRI.S.SREEKUMAR (CAVEATOR) FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.145 of 2009 --------------------------------------- Dated this 18th day of September 2009 JUDGMENT Defendant No.2 in the trial court is the appellant before me. Plaintiffs/respondents appear through counsel. Parties are referred to as plaintiffs and defendants as in the trial court. 2. This second appeal is directed against judgment and decree of learned Sub Judge, Koyilandy in A.S.No.39 of 2007 confirming judgment and decree of learned Munsiff Magistrate, Payyoli in O.S.No.2 of 2007. Suit is for decree for prohibitory injunction to restrain defendant Nos.1 and 2 from trespassing into the suit property. According to the plaintiffs, suit property originally belonged to Kunhabdulla (PW1), father of plaintiffs and defendant No.3. Defendant No.3 is arrayed on the side of defence since he was not available to join the plaint. Kunhabdulla obtained purchase certificate in respect of the suit property from the Land Tribunal in O.A.No.601 of 1971 as per Ext.A1, purchase certificate dated 17-07-1972. Ext.A2 is the order of the Land Tribunal. Landlord challenged Ext.A2 in the appellate court which dismissed the same as per Ext.A3, judgment. Plaintiffs claimed that Kunhabdulla assigned the suit property to them and defendant No.3 as per settlement deed No. 2129 of 1986 and since then plaintiffs and defendant No.3 are in joint possession and enjoyment of the said property. Defendant Nos.1 and 2 who are brothers of Kunhabdulla are R.S.A.No.145 of 2009 2 trying to interfere with their possession and hence the suit. It is claimed that on an earlier occasion defendant No.1 tried to trespass into the suit property against which mother of plaintiffs as their guardian filed O.S.No.20 of 1993 and obtained a favourable decree (Ext.A4). Defendant Nos.1 and 2 contended that plaintiffs have no right over the suit property and that Kudikidappu of was of Abdul rahiman, father of defendant Nos.1 and 2 and Kunhabdulla. On his death the suit property devolved on Kunhabdulla and defendant Nos.1 and 2 as the legal heirs. Kunhabdulla could transfer only his share in the suit property to plaintiffs and defendant No.3 as per settlement deed No.2129 of 1986. Since defendant Nos.1 and 2 are co owners of the suit property they are entitled to be and are in joint possession of the same. Learned Munsiff-Magistrate found that there is no evidence on record to show that Abdul Rahiman was the Kudikidappukaran of the suit property and hence, Exts.A1 and A2 should stand. Title and possession were found in favour of plaintiffs and defendant No.3 and decree for prohibitory injunction was granted in their favour. Appellate court concurred with that judgment and decree. The substantial questions of law raised in the second appeal are: 1. whether plaintiffs and defendant No.3 have exclusive right over the properties based on Exts.A1 to A4? 2. whether finding of the courts below that plaintiffs and defendant No.3 have exclusive possession is correct? R.S.A.No.145 of 2009 3 3. Whether the court below is justified in rejecting Ext.B1 marked in the first appeal? 3. It is contended by learned counsel for appellant/defendant No.2 that concurrent finding entered by the courts below are erroneous and that courts below ought to have found that Ext.A1 entered to the benefit of all legal heirs of Abdul Rahiman. Learned counsel for plaintiffs supported judgment and decree of the courts below and contended that no substantial questions of law is involved. 4. Ext.B1 is produced to show that Abdul Rahiman died in the house in the suit property. Ext.X1 relied on by the appellant/defendant No.2 is a renewal application for ration card submitted by Kunhabdulla (PW1) states that his sister, Amina and brother (defendant No.2) were also staying in the house in the suit property at that time. This according to learned counsel indicated that Amina and defendant No.2 were in joint possession of the suit property. Learned counsel also contends that going by the age of PW1 (Kunhabdulla), he was aged around 22 years at the time of purchase certificate was obtained in 1972 and it is unlikely that at a time when their father was alive he obtained Kudikidappu from the landlord. 5. In this second appeal what this court is concerned with is whether there is any substantial question of law involved for a decision. What is a substantial question of law has been decided by R.S.A.No.145 of 2009 4 the apex court in various decisions. It has been held in Boodireddy Chandraiah Vs. Arigela Laxmi (2007(4) KLT SN 40) that to be a “substantial question of law”, it must be debatable, not previously settled by law or a binding precedent and must have a material binding on the decision of the case. True it is within the power of this court to interfere in second appeal on a finding of fact made by the first appellate court, but only when the finding is either perverse or based on no evidence. In this case, it is not disputed that Kunhabdulla (PW1) was a major at the time the Kerala Land Reforms Act came into force and Exts.A1 to A3 do not in any way indicate that he made the application for purchase of Kudikidappu for and on behalf of Abdul Rahiman or anybody else. When Exts.A1 and A2 stand in the name of Kunhabdulla (PW1) and, he asserted in evidence that he got Kudikidappu from the landlord it is the responsibility of defendant Nos.1 and 2 to show that the application was preferred and purchase certificate was obtained for and on behalf of the so called co owners as well. No acceptable evidence in that line is forthcoming. Mere fact that at some point of time the mother, brother or sister of Kunhabdulla also stayed in the house in the suit property cannot clothe them with any right of ownership or possession. It can only be taken as a permissive occupation under the rightful owner. Ext.A4, settlement deed shows that the suit property was settled in favour of plaintiffs and R.S.A.No.145 of 2009 5 defendant No.3. Further fact to be noted is that when defendant No.1 attempted to interfere with the possession of plaintiffs and defendant No.3 at a time when they were minors, their mother filed a suit in the year 1993 against defendant No.1 and obtained a favourable decree in respect of the very same property as seen from Ext.A6, decree in A.S.No.20 of 1993. That means, in that suit also exclusive title and possession of plaintiffs and defendant No.3 were accepted. Learned counsel for appellant/defendant No.2 states that defendant No.2 was not a party to that suit. Assuming so, defendant No.1 with whom defendant No.2 had a joint defence in the trial court was a party to that suit and there is no case or evidence that defendant No.1 played any fraud on defendant No.2 in the conduct of O.S.No.20 of 1993. The finding of the first appellate court rest on proper appreciation of the evidence, oral and documentary. On going through the judgment and decree under challenge I do not find any substantial question of law involved, requiring admission of the second appeal and consideration by this court. 6. At this stage learned counsel for appellant/defendant No.2 submitted that mother of appellant/defendant No.2 is aged, ailing and staying in the house in the suit property. Decree of the court below prevents appellant/defendant No.2 going to the house in the suit property to visit the mother. Learned counsel requested that R.S.A.No.145 of 2009 6 defendant Nos. 1 and 2 may be permitted to visit the mother in the said house. Learned counsel for the plaintiffs submitted that plaintiffs and defendant No.3 have no objection in defendant Nos.1 and 2 visiting their mother in the house in the suit property during day time. Accordingly, permitting defendant Nos.1 and 2 to visit their ailing mother in the house in the suit property during day time, this second appeal is dismissed. THOMAS P JOSEPH, JUDGE Sbna/ 'Paragraph 6 of the Judgment dated 18.09.2010 in R.S.A.No.145/2009 is deleted and judgment and decree are reviewed cancelling the permission granted to defendants 1 and 2 to visit their ailing mother in the house in the suit property vide order dated 16.11.2010 in R.P.No.1180/2009'.