IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 RSA.No. 685 of 2009(F) --------------------------------- (AS.NO.164/2001 OF SUB COURT,NEYYATTINKARA, OS.NO.445/2000 OF PRL.MUNSIFF'S COURT,NEYYATTINKARA) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- JESSY, AGED 60, W/O.LATE P.MANIAN, TC.36/584, CHARUVILAPUTHEN VEEDU, KOOTTAMVILA ROAD, VETTAMUKKU, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAJKUMAR. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- G.SASIDHARAN, AGED ABOUT 47, S/O.GOPALAN, VILANKODE VADAKKEKARA VEEDU, PAMAMCODE, INDUSTRIAL ESTATE-P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.MOHAN. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No. 685 of 2009 -------------------------- Dated this the 12th July, 2010 J U D G M E N T Aggrieved by the concurrent findings against him, the plaintiff in O.S No.445 of 2000 before the Munsiff's Court, Neyyattinkara has come up in appeal. 2. The suit was one for declaration of title, recovery of possession and injunction. 3. The plaintiff claims to have obtained the plaint schedule property by virtue of Ext.A1 sale deed dated 18.8.1975. Plaintiff claimed exclusive possession and enjoyment of the same. It is also stated that the property is lying within well defined boundaries. Plaintiff claims that she had put up building in the plaint schedule property and let it out to respondent in the year 1995 for a monthly rent of Rs.10/- and it was enhanced periodically to Rs.50/- Plaintiff demanded vacant possession of the property. But the defendant was unwilling to hand over the possession of the building pointing out that defendant is entitled to continue in the property. Therefore, the suit was laid seeking recovery of possession and various other reliefs. R.S.A No. 685 of 2009 2 4. Defendant resisted the suit. It is pointed out by him that the plaintiff has no title or possession over the plaint schedule property. According to him, the property comprised in Sy.No.229/11 formerly belonged to one Neelulekshmi of Edakkottu desom. An otti kuzhikkanam was executed by her in favour of the defendant's mother. Ever since the property has been in possession of the defendant's mother . Later in the year 1961, Lakshmi executed a sale deed and thereby defendant's mother came to be the absolute owner in possession and enjoyment of the property. Defendant contended that he had constructed a building in the property with the permission of his mother. Subsequently, five cents was allotted to defendant as per sale deed dated No.2155 of 1999. In the written statement, it is contended that plaintiff has no title over the plaint schedule property. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and Exts. A1 and A2 were marked from the side of the plaintiff. Exts. B1 to B5 were marked from the side of the defendant. No oral evidence was adduced by the R.S.A No. 685 of 2009 3 defendant. Exts.C1 and C1 (a) are the commission report and plan. 6. The trial court found that the plaintiff relied on a will by which his vendor got property but that will was not produced. 7. The court below also found that Exts.B1 to B5 produced by the defendant would show that property belonged to him and that there was no contra evidence adduced by the plaintiff. It was also found even if the plaintiff can rely on Ext.A1 document of title no steps had been taken to have the property identified. Accordingly, the trial court dismissed the suit. 8. The matter was carried in appeal by the plaintiff. as A.S No.164/2001 before the Sub Court, Neyyattinkara. At the appellate stage the plaintiff seems to have produced several documents . The lower appellate court has noticed that all documents were available to the plaintiff even at the time of filing the suit. The lower appellate court observed that there was no justification for not producing those documents at the trial stage and the lower appellate court found that Order.41 Rule 27 is not attracted. R.S.A No. 685 of 2009 4 9. After considering the matter in detail, the lower appellate court came to the conclusion that there is nothing on record to show that plaintiff had title over the property. The lower appellate court dismissed the appeal. 10. Learned counsel appearing for the appellant pointed out that the appellate court was not justified in not admitting the documents produced from the side of the plaintiff. According to the learned counsel, two documents would have shown that she had title over the property and that findings of the court below are wrong.. 11. The plaintiff had not given any convincing reasons as to why he had not produced those documents at the time of trial. Order 41 Rule 27 does not confer any right. Unless the conditions necessary to attract the provisions are made out, it is not possible to receive the documents at the appellate stage. 12. Even at the time of filing the written statement, the defendant had disputed the title of the plaintiff to the property and pointed out that the plaintiff has no title over the suit property. Defendant had produced Exts.B1 to B5 to prove his right and possession over 5 cents of property R.S.A No. 685 of 2009 5 wherein he claims that the building is situated. In spite of the specific dispute there was no attempt on the side of the plaintiff to have the property identified and establish his title. 13. Further, the definite stand taken by the plaintiff was that defendant was only a tenant in the building put up by him. On the other hand, the defendant had adduced evidence to show that the building was put up by him and he was residing there. But there was no evidence to show that defendant was a tenant as claimed by the plaintiff. 14. Both the courts have noticed that there are several contradictions which make the evidence of plaintiff weak. It is also interesting to note that the witnesses examined by the plaintiff were not able to give correct versions about the property. Both the courts below found that the oral evidence does not compare well with the description in the plaint nor does it tally with the description in Ext.A1 relied on by the plaintiff. It was under the state of affairs that the courts below had dismissed the suit. R.S.A No. 685 of 2009 6 15. The complaint of the defendant is that plaintiff ought to have produced the documents earlier and that the documents produced by the appellant at the appellate stage is not justified. 16. Learned counsel pointed out that no document would show that litigation was relates to the predecessors in interest of the parties and those documents had determined the right of the plaintiff. Even assuming so, he had no explanation to the same. while doing so. Findings are essentially findings on facts arrived at on an appreciation of the evidence. No grounds are made out to interfere with the judgment and decree of the courts below since it is not shown that findings of the lower appellate court are either perverse or unwarranted by the evidence on record. No substantial questions of law arose for consideration in this Appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No. 685 of 2009 7 R.S.A No. 685 of 2009 8 P.BHAVADASAN, JUDGE ma R.S.A No. 685 of 2009 9 R.S.A No. 685 of 2009 10