IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 RSA.No. 890 of 2009() --------------------- AGAINST THE COMMON JUDGMENT DATED 12/06/2009 IN AS.21/2006 & AS. 22/2006 of SUB COURT, THIRUVALLA OS.604/2001 & OS.94/2002 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/PLAINTIFF --------------------------------------- THOMAS MATHEW, AGED 56 YEARS, S/O.THOMAS, ULLATTUKULANGARA VEEDU, PARUMALA MURI, KADAPRA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENTS: DEFENDANTS ------------------------- 1. FRANCIS MATHEW, VEENADU HOUSE, KOIYILMUKKU KARAYIL, EDATHUA VILLAGE, KUTTANADU TALUK, ALLEPPEY DISTRICT. 2. MARIAMMA VARGHESE, W/O.FRANCIS MATHEW, KOIYILMUKKU KARAYIL, EDATHUA VILLAGE, KUTTANADU TALUK, ALLEPPEY DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2009, ALONG WITH R.S.A.No.892/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.Nos.890 & 892 of 2009 ---------------------------------------- Dated this the 25th day of August, 2009 JUDGMENT The plaintiff in O.S.No.604 of 2001 of the Munsiff's Court, Thiruvalla who is the appellant in A.S.No.21 of 2006 of the Sub Court, Thiruvalla is the appellant in R.S.A.890 of 2009. The connected appeal R.S.A.No.892 of 2009 arises from A.S.No.22 of 2006 of the Sub Court, Thiruvalla which in turn is filed against the judgment and decree in O.S.No.94 of 2002 of the Munsiff's Court, Thiruvalla. The suit is filed for prohibitory injunction restraining the defendants from not to alienate the property or trespassing the property. The connected suit (O.S.No.94/2002) was filed by the defendants in O.S.No.604 of 2001 for mandatory injunction directing the plaintiff in O.S.No.604 of 2001 to vacate the plaint schedule property and the building. The short facts of O.S.No.604 of 2001 are as follows: 2. The 2nd defendant in O.S.No.604 of 2001 is the sister of the plaintiff and the first defendant is her husband. According to the plaintiff he and his family are residing in the building situated in the plaint schedule property, that he paid Rs.4.5 lakhs as part sale consideration for registering the sale deed in R.S.A.Nos.890 & 892 of 2009 2 his favour. The payment was made in 1995. Admittedly the property belongs to the defendants. The further case of the plaintiff is that they started residence in the plaint schedule building prior to the agreement for the sale and that they are paying the electricity, telephone charges, etc. It is the further case of the plaintiff that he was put in possession of the property by his sister and brother-in-law and promised to execute the sale deed when the defendants return to India from the place of their employment abroad. The plaintiffs also pleaded that in case it is found that the defendants are not liable to execute the sale deed the plea was taken that the title of the defendants is lost and he perfected title deed of adverse possession and limitation. 3. The defendants resisted the suit stating that they are the absolute owners of the possession of the property. They are paying land tax and building tax of the property, that the defendants are working abroad, since they could not effectively manage the property they permitted the plaintiff and his family to reside in the building in the plaint schedule property. According to them the plaintiff is the custodian of the building for and on behalf of the defendants and the plaintiff had no R.S.A.Nos.890 & 892 of 2009 3 possession of the building and the property. The connected suit was filed by the defendants O.S.No.94/2002. The some and substance of the averments in the suit is the same contentions which was raised in the written statement filed in the other suit. The said suit was filed for mandatory injunction directing the defendant to vacate the plaint schedule properpty and the building. In that case similar contentions raised in the plaint in the O.S.No.604 of 2001 was raised by the defendants. 4. The court below jointly tried both suits and O.S.No.604 of 2001 is treated as the leading case. Pws.1, 2, Dws.1, 2, Exts.A1, A2, Exts.B1 to B11 and Exts.X1 and X2 were marked. After examining oral and documentary evidence in detail the trial court held that there is no evidence to show that plaintiff in O.S.No.604 of 2001 paid for Rs.4.5 lakhs as part sale consideration. The trial court also held after placing reliance on the evidence of Pws.1 and 2, Dws.1 and 2 that the plaintiff occupied the plaint schedule building with the permission of the owners. The plaintiff has no case that he is a tenant of the building or he has paid any rent for the building. The trial court also found that though the plaintiff claim that he had paid R.S.A.Nos.890 & 892 of 2009 4 Rs.4.5 lakhs as part sale consideration, he has not produced any evidence to show that he paid the said amount. From the oral and documentary evidence the court rightly held that the plaintiff is only a licencee or a custodian of the building for and on behalf of the defendant. It has come out that the defendants has already revoked the permission granted to the plaintiff to reside in the plaint schedule building. The contention of adverse possesson raised by the plaintiff was also found against. There is neither pleading nor evidence in support of the said claim. The trial court dismissed O.S.No.604 of 2001 and decreed O.S.No.94 of 2002 directing the defendants in the said case by mandatory injunction to vacate the plaint scheudle building within one month from the date of decree. 5. Before the appellate court the plaintiff in O.S.No.604 of 2001 filed 2 separate appeals against the common judgment. The appellate court also examined the questions in detail and agreed with the findings of the trial court finding that absolutely no evidence before the court to prove that the appellants have any manner of right over the plaint schedule building. The appellate court dismissed the appeals. R.S.A.Nos.890 & 892 of 2009 5 6. Before this court in second appeals the plaintiff in O.S.No.604 of 2001 who is the first defendant in O.S.No.94 of 2002 agitated the very same contention. I have also examined the reasonings and findings of the trial court and lower appellate court in the light of the contentions raised by the learned counsel for the appellants. I also agreed with the findings recorded by the trial court confirmed in appeal. Though contentions are raised by the appellants that they have occupied possession of the property as of right, there is no evidence to substantiate his contention. Therefore I am of the view that the view taken by the trial court confirmed in appeal is the only view possible in the given circumstances. I find that the appellant has failed to urge any sustainable ground to invoke this court's jurisdiction under Section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence this appeal fails and accordingly dismissed in limine. 7. The learned counsel for the appellants submitted that the appellant was residing in a rented house before his occupation of the plaint schedule building. The appellant is R.S.A.Nos.890 & 892 of 2009 6 residing with his wife and 2 children in the plaint schedule building. The learned counsel requested this court to grant a reasonable time for vacating the premises. I think the request is reasonable. A period of 9 months is granted to vacate the premises on condition that the appellants shall file an affidavit before the trial court in the form of an undertaking agreeing to vacate the premises within the time allowed by this court. The undertaking shall be filed within a period of six weeks from today. It is made clear that nothing stated above touching merits of the case will prevent the parties from entering into any compromise or adjustment. The parties in the suit are at liberty to negotiate in order to enter into any compromise within the period fixed by this court to vacate the premises. HARUN-UL-RASHID, JUDGE skj.