IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 RSA.No. 108 of 2009() --------------------- AS.67/2005 of PRL.SUB COURT, THALASSERY OS.638/2001 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KANAKANDE KANDI AFEELA, D/O KAREEM, AGED 21 YEARS, RESIDING AT MATTOOL AMSOM, DESOM, KANNUR DIST. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS/ RESPONDENTS/DEFENDANTS ------------------------------------- 1. KARIPPA ALEEMA, D/O NAFEESA, AGED 46 YEARS, HOUSEHOLDER, MATTOOL AMSOM DESOM, NEAR VILLAGE OFFICE, MATTOOL, KANNUR DIST. 2. KARIPPA RAMLATH, D/O NAFEESA, AGED 41 YEARS, HOUSEHOLDER, MATTOOL AMSOM DESOM, NEAR VILLAGE OFFICE, MATTOOL, KANNUR DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.108 OF 2009 --------------------------- DATED THIS THE 18TH DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.638/2001 on the file of the Additional Munsiff's Court, Kannur is the appellant. This second appeal is directed against the judgment and decree in A.S.No.67/2005 on the file of the Principal Sub Court, Thalassery. The suit was originally filed for permanent injunction restraining the defendants or their men from trespassing into the plaint schedule property and for a mandatory injunction directing the defendants to remove the fence. The plaint was subsequently amended inserting the prayer for declaration of title and recovery of possession. 2. It is the case of the plaintiff that she got title and possession over the plaint schedule property comprising of 14 cents included in Sy.No.355/5A as per Ext.A4 gift deed executed by her mother. According to the plaintiff, the defendants have no -2- R.S.A.No.108/09 manner of right, title or interest over the property; but they disputed her title and possession and tried to trespass into the plaint schedule property. Therefore, the suit was filed for the aforesaid reliefs. The defendants in their written statement contended that they are the owners in possession of the plaint schedule property included in R.S.No.355/5A and R.S.No.651/2A for more than 32 years continuously and prayed for dismissal of the suit stating that the plaintiff not being the title holder is not entitled to any relief as prayed for in the suit. 3. The trial court examined the respective contentions of the parties on the basis of oral evidence tendered by PWs.1, Exts.A1 to A10, B1 to B38 and C1, C1(a), C2, C2(a), C3 and C3 (a) commission reports and plans. 4. In Ext.C1 to C3(a) reports and plans the commissioner reported that the plaint schedule property was seen described as “Kadalvakkutharisu Nilam” in the village records and comprised in old Sy.No.651/2A, R.S.No.355/5A. The trial court further held that the defendants' predecessor-in-interest -3- R.S.A.No.108/09 obtained possession of the property by virtue of Exts.B3 and B4. The trial court also held that though the plaintiff contended that there is a mistake crept in noting the survey number of the property in Exts.A1 to A3, she has not cared to execute a rectification deed. The trial court also took into consideration the fact that the plaintiff did not enter the box and did not tender evidence to substantiate her contention, though the mistake in survey number crept in the earlier document. After considering all the facts and circumstances of the case, the trial court concluded that the plaintiff could not discharge the burden to establish her title or possession over the property on the strength of Exts.A1 to A10. 5. The plaintiff filed an appeal as A.S.No.67/2005 before the Appellate Court raising the very same contentions. The Appellate Court also considered the oral and documentary evidence adduced by the parties and after re-appreciating the entire evidence on record, held that absolutely there are no reasons to interfere with the decree and judgment passed by the -4- R.S.A.No.108/09 trial court, which according to the Appellate Court, is strictly on the basis of documentary evidence adduced. The questions whether the plaintiff has got title and whether the plaintiff is entitled to recovery of possession on the strength of title were examined in detail by the two fact finding courts on the basis of the materials adduced by the parties. The trial court rightly concluded that the plaintiff failed to establish her title and therefore she is not entitled to the relief in the suit. The Appellate Court also agreed with the findings arrived at by the trial court on the basis of evidence. The findings and conclusions are solely based on facts. I find no grounds to interfere with the decree and judgment impugned in the second appeal. No question of law much less any substantial questions of law arise for consideration in this appeal. In the result, the appeal is devoid of any merit and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv.