IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RSA.No. 641 of 2010() --------------------- AS.22/2008 of D.C.& SESSIONS COURT,THODUPUZHA OS.79/2006 of MUNSIFF'S COURT, DEVICOLAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. ALLIMUTHU,S/O.LATE KARUPPASWAMY, HOUSE NO.1665/111,(OLD 222/VIII) OF MGP MATTUPETTY, KAKKADU CITY,K.D.H.VILLAGE,DEVIKULAM. 2. K.SEKHAR,S/O.LATE KARUPPASWAMY, HOUSE NO.1665/111(WRONGLY SHOWN IN AS A.S.JUDGMENT AS 22/VIII),(OLD 222/VIII) OF MGP MATTUPETTY, KAKKADU CITY,K.D.H.VILLAGE,DEVIKULAM. BY ADV. SRI.RAJU JOSEPH RESPONDENT(S): RESPONDENT:DEFENDANT: ---------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SECRETARY, VIDUTHI BHAVAN,THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- RSA No.641 of 2010-B ------------------------------------- Dated 21st June 2010 Judgment The plaintiffs, who were non-suited by both the courts below, are the appellants. 2. The suit was one for injunction. The plaintiffs claim to be the legal heirs of one Karuppa Swamy. According to them, they were in possession and enjoyment of 1 acre 50 cents of non-patta revenue puramboke land, which is shown as the plaint schedule property. It is stated that the said property is comprised in Survey No.1 of Block No.38 of KDH village. After the death of Karuppa Swamy, the plaintiffs have been in absolute possession of the property. They say that there is a building in the plaint schedule property, which is numbered as 1665/III of MGP. According to the plaintiffs, they and their predecessors-in-interest were in absolute possession and enjoyment of the property for the last 33 years. The land has been cultivated with various crops and the plaint schedule property is clearly demarcated from the adjacent properties RSA 641/10 2 with clear boundaries. 3. On 02.04.2006, some officials of the KSEB came into the property and threatened them that they would be forcibly evicted from there. The plaintiffs say that they had no other remedy, but to approach the court for appropriate reliefs. 4. The suit was resisted by the defendant. They claimed that the property belong to the Kerala State Electricity Board and it is well within the catchment area of Madupetty reservoir. They denied that the father and mother of the plaintiffs had been residing in the said property. They also denied that the property was cultivated with various crops and it has been demarcated from the adjacent properties. They denied that the property is a revenue puramboke land. According to them, the plaintiffs have no manner of right over the suit property and they are not entitled to any reliefs in the suit. 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 to A5(b) from the side of the plaintiffs. The defendants did not choose to adduce any RSA 641/10 3 evidence. Exts.C1 and C1(a) are the Commissioner's report and sketch. 6. The Trial Court, on an evaluation of the evidence on record, came to the conclusion that the plaintiffs have not succeeded in establishing their case and accordingly dismissed the suit. 7. The plaintiffs carried the matter in appeal as AS No.22/08 before the District Court, Thodupuzha. The lower Appellate Court concurred with the findings of the Trial Court and dismissed the appeal. 8. The learned counsel for the appellants pointed out that the defendant has not chosen to adduce any evidence to substantiate their claim and in the absence of any evidence adduced by the defendant, the claim raised by them ought not to have been accepted by the courts below. The courts below have misread the evidence on record and there has not been proper appreciation of the evidence adduced in the case. It is also contended that the Village Officer who was examined as PW3 and the Junior Superintendent who was examined as PW5 had admitted in the box that the respective certificates RSA 641/10 4 were issued by the then Village Officer as well as the panchayat. Even assuming there is some correction in the panchayat records, it is not due to the fault of the plaintiffs. It was also contended that the courts below ought not to have given undue importance and significance to the minor inconsistency in the evidence adduced by them. 9. There is no merit in any of the above contentions. The documents produced, namely, Exts.A2 and A3 cannot support the case of the plaintiffs. As far as Ext.A2 is concerned, the court below has found that there is nothing to identify the property with respect to the description contained in the said document. The Trial Court has observed that there is no mention of any building in Ext.A2. However, the learned counsel for the appellants pointed out that the appellants are residing in the said property, which means that there should be a building therein. The Trial Court found that Ext.A3(a) has been tampered with and there is no satisfactory explanation offered for the said tampering. The first appellant, when examined as PW1, had stated that he has a ration card and a voters identity card, to show that he was in possession of the RSA 641/10 5 property and that he was residing there. For reasons best known to the plaintiffs, he withheld those documents. Apart from the above facts, unfortunately for the plaintiffs, Ext.C1(a) sketch prepared by the Commissioner also did not support the case of the plaintiffs. The Trial Court has observed that the evidence of PWs 2 and 4 clearly establishes that the property is lying on the southern slope of the Madupetty reservoir. The plaintiffs have no such a case. It is also noticed by the Trial Court that the defence elicited in evidence that the property situated at Kakkakadayil Junction in Madupetty was not at all inspected by the Commissioner. 10. The lower Appellate Court independently evaluated the evidence on record and found that the documents are not acceptable. The Trial Court has noticed that on a perusal of Ext.A3(a), it can be seen that it is a subsequently added document after tampering with the entries originally made in the said document. The lower Appellate Court has also noticed that building nos.1665 and 1666 shown in the assessment register were rounded in red ink, for which no reasons were forthcoming. While the first appellant was RSA 641/10 6 examined as PW1, it was noticed by the Trial Court that there was a specific direction to approach the RDO, but the appellants did not do so. There is no reasonable explanation for not doing so. 11. The courts below also found that there is nothing to show that the plaintiffs were residing in the plaint schedule property for 33 years. If as a matter of fact, what the plaintiffs claim is true, there should be some documents in his possession to substantiate the said claim. But, the evidence adduced by them have, in fact, gone against them. The courts below also found that earlier there were two suits in respect of the very same property filed by the predecessor-in-interest of the plaintiffs. One of the said suits was withdrawn and the other was dismissed. The plaintiffs have not provided further details of those suits. 12. It was pointed out before this court that the appellants have moved the Authorities under the Land Assignment Act and their possession may not be disturbed until a decision is taken on their application. It must be noticed that the claim of the defendant Board is that the property RSA 641/10 7 belongs to them and that the plaintiffs are trying to encroach on that land. If, as a matter of fact, the plaintiffs have approached the authorities under the Land Assignment Act, they may pray for interim reliefs also. 13. The pendency of an application does not mean that they are entitled to the ownership or possession of the property. Going by the evidence on record, both the courts have considered the evidence in detail and have come to the identical conclusion that the plaintiffs have failed to establish their title and possession over the suit property. The findings are essentially based on facts. At any rate, the findings of the courts below cannot be said to be perverse, warranting interference by this Court. The Second Appeal is without merits and it is dismissed in limine. P.BHAVADASAN, JUDGE sta RSA 641/10 8 RSA 641/10 9