IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RSA.No. 1053 of 2009() ---------------------- AS.69/2007 of SUB COURT, KASARAGOD OS.5/2006 of PRINCIPAL MUNSIFF COURT, KASARAGOD .................... APPELLANT (S): APPELLANT/DEFENDANT: ---------------------------------------- SUBBA NAIKA @ SUBBAYYA NAIKA, AGED 62 YEARS, S/O.LATE DEVAPPA NAIKA, RESIDING AT THIMMANAGUNDI, ADOOR VILLAGE, PANDY P.O., KASARGOD TALUK & KASARGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENTS/PLAINTIFFS: -------------------------------------- 1. SAROJINI, AGED 59 YEARS, W/O.LATE BATTYA NAIKA, RESIDING AT THIMMANAGUNDI, ADOOR VILLAGE, PANDY P.O., KASARGOD TALUK & KASARGOD DISTRICT. 2. K.T.KRISHNAPPA, AGED 30 YEARS, S/O.LATE BATTYA NAIKA, RESIDING AT THIMMANAGUNDI, ADOOR VILLAGE, PANDY P.O., KASARGOD TALUK & KASARGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1053 of 2009 -------------------------------------- Dated this the 6th day of January, 2010. JUDGMENT Respondents/plaintiffs claimed that plaint A schedule, 1.58 acres was acquired by Battya Naika as per order in L.A.No.39 of 1967 and on his death, it devolved on the respondents. Appellant/defendant has some property adjoining to plaint A schedule on its southern side. Alleging that appellant is attempting to trespass, respondents sued for decree for prohibitory injunction. Appellant denied that plaint A schedule was acquired by Battya Naika and on his death it devolved on the respondents. According to the appellant, a portion of plaint A schedule is in the possession of Krishna Naika. Battya Naika has borrowed Rs.30,000/- from the said Krishna Naika and as security a portion of plaint A schedule was given into the possession of Krishna Naika. Original document of title was given to the said Krishna Naika. Appellant is in possession of the property scheduled as 'X' in the written statement since the last 40 years. He claimed to have title by adverse possession and law of limitation. Trial court found against the claim of appellant, held that respondents are in possession of the suit property and granted decree. That was confirmed by the first appellate court and hence this Second Appeal urging by way of substantial question of law whether the courts below were justified in accepting and acting upon Ext.C1 and whether in the absence of any evidence courts below were justified in granting relief in favour of the respondents particularly as there is no definite boundary RSA No.1053/2009 2 between plaint A schedule and property belonging to the appellant. It is contended by learned counsel that in the above circumstances courts below were not justified in granting relief in favour of the respondents. 2. Respondents have produced patta dated 25.5.1972 issued in L.A.No.39 of 1969 in favour of Battya Naika in respect of the 1.58 acres and marked Ext.A1. Ext.A2 is the receipt dated 29.9.2005 for payment of revenue for the said property by the respondents. Respondent No.2 has given evidence as PW1 and stated about their possession of the suit property. Respondents have claimed that there was mud wall on the eastern portion of the suit property. Exts.C1 and C2 are the report and plan submitted by the advocate commissioner. Courts below found that boundary described in Exts.C1 and C2 tallied with the description of plaint A schedule property in Ext.A1. Appellant when examined as DW1 stated that Battya Naika has executed a power of attorney in favour of Krishna Naika and that himself is in possession of the property. He however did not pay tax for any portion of plaint A schedule. According to him, Krishna Naika has filed O.S.No.194 of 2006 against the legal representatives of Battya Naika in respect of the alleged loan transaction of the year 1996. 3. The question for consideration is whether respondents are in possession of the suit property. Appellant has no claim that he is in possession of any portion of suit property. Being a suit for injunction appellant cannot plead RSA No.1053/2009 3 jus tertii, a plea that neither the respondents nor himself is in possession of the property, but a third person is in possession. This being a suit for injunction what is required to be considered is only whether respondents are in possession of the suit property. That possession is proved by Exts.A1 and A2 and the descriptions in Exts.C1 and C2. Advocate commissioner has reported that there is no boundary within plaint A schedule property. Hence possibility of any portion of the schedule property being in the possession of another person does not arise. At any rate, it is not necessary in this case to dwelve into the question whether Krishna Naika may have any claim against the respondents or on any portion of the suit property. That is a matter which can be agitated in appropriate proceedings between them. Courts below found that respondents are in possession and granted injunction against the appellant. That is a finding of fact based on evidence on record and required no interference. No substantial question of law as urged in the memorandum of appeal do arise for consideration. The Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks