IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 RSA.No. 225 of 2010() ------------------------------ AS.66/2002 of ADDL.SUB COURT,NORTH PARAVUR OS.307/1998 of MUNSIFF COURT, ALUVA .................... APPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------------------- DEVASSY, AGED 50 YEARS, S/O.DEVASY, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM) KARA, ALUVA WEST VILLAGE, ALUVA TALUK, REP.BY POWER OF ATTORNEY HOLDER VARGHESE, AGED 55 YEARS, S/O.DEVASY, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM)KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SRI.C.A.MAJEED, SRI.K.H.ASIF. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. VARGHESE KUNJAPPAN, AGED 67 YEARS, S/O.ITHAK, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM)KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 2. JOHNSON, AGED 42 YEARS, S/O.VARGHESE, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM) KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 3. THOMAS, AGED 40 YEARS, S/O.VARGHESE, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM) KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 4. JOMON, AGED 36 YEARS, S/O.VARGHESE, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM) KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 5. BABU, AGED 33 YEARS, S/O.VARGHESE, VELLAMPILLY HOUSE, ERUMATHALA (ASOKAPURAM) KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SRI.P.S.APPU, SRI.M.N.SANJITH. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.225 of 2010-B ------------------------------------- Dated 30th June 2010 Judgment The dispute involved in this case relates to a pond, claimed by the plaintiff to be situated in his property. 2. According to the plaintiff, the defendants are not entitled to take water from the pond in question and they do not have any manner of right over the pond. It is also alleged that they were creating mischiefs and causing inconvenience to the plaintiff. On the basis of these allegations, the suit was laid. 3. The defendants contested the suit by pointing out that the pond had been kept in common, as per the recitals contained in Ext.B1 gift deed dated 24.09.1962. They also disputed that the pond was in the property owned by the plaintiff, as claimed by him. According to them, they are entitled to take water from the pond as of right and they have been doing so, from 1974 onwards, using an electric motor. They also produced receipts to show that RSA 225/10 2 they have been paying electricity charges for the motor installed by them for this purpose. 4. The Trial Court raised necessary issues for consideration. One of the issues was regarding the identity of the suit property. On a consideration of the evidence on record, the Trial Court found that the plaintiff had not made any attempt to show that the pond fell within the property claimed by him, in spite of there being a specific issue in that regard. It was also found that water was being taken by the defendants from the disputed pond. Finding that the claim of the plaintiff that he is entitled to exclusive use of the pond, was not acceptable and also that the defendants are entitled to take water from the pond, the suit was dismissed. 5. The plaintiff went in appeal as AS No.66/2002 before the Additional Sub Court, North Paravur. The lower Appellate Court, on an independent evaluation of the evidence, came to the very same conclusion as that of the Trial Court. The lower Appellate Court also observed that in spite of the raising of the specific issue regarding the RSA 225/10 3 identity of the property, the plaintiff did not bother to have it established. It is against this concurrent finding that the plaintiff has come up in Second Appeal before this Court. 6. A perusal of the Judgment of the Trial Court would show that there was a dispute regarding the identity of the suit property, ie., as to whether the pond in question was a portion of the property owned by the plaintiff. From the available records, it is seen that there was a specific denial by the defendants that the pond did not form part of the plaint schedule property and it was kept in common as per Ext.B1 document. 7. The deposition of the witnesses shows that when the plaintiff was examined as PW1, he was unable to say, as per which document he obtained the pond in question. The courts below, on a consideration of the evidence, found that the defendants had been taking water from the pond and they had been paying electricity charges for the motor installed by them for that purpose. There is nothing to show that the pond exclusively belongs to the plaintiff and that the defendants have no manner of right for RSA 225/10 4 taking water from the pond. In fact, the evidence is to the contrary. The findings entered by the Courts below are purely based on appreciation of evidence and therefore, no questions of law arise for consideration in this appeal. It is not shown that the findings are either perverse or not warranted by the evidence on record. The Second Appeal is without merits and it is accordingly dismissed in limine. P.BHAVADASAN, JUDGE sta RSA 225/10 5