IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 RSA.No. 178 of 2009() --------------------- AS.59/2004 of ADDL.SUB COURT, ALAPPUZHA OS.1115/1997 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANTS/APPELL ANTS 1 TO 4/ DEFENDANTS 1 TO 4: -------------------------------------------------- 1. RAJAN, S/O.VELAYUDHAN ACHARY, SARASWATHI VIHAR,THIRUVAMPADY, ALAPPUZHA. 2. GOPALAKRISHNAN , S/O.VELAYUDHAN ACHARY, ALAPPUZHA. 3. ARUMUHAM, S/O.VELAYUDHAN ACHARY ALAPPUZHA. 4. DEVARAJAN, S/O.VELAYUDHA ACHARY, ALAPPUZHA. BY ADV. SRI.S.SOMAN RESPONDENTS/RESPONDENTS/5TH APPELLANT/PLAINTIFF & 5TH DEFENDANT: ------------------------------------------------ 1. GOVINDARJAN, S/O.PONNAPPAN ACHARY, LAKSHMI BHAVAN, THIRUVAMPADY, ALAPPUZHA. 2. AMBUJAM AMMAL,W/O.RAJAN, SARASWATHI VIHAR, ALAPPUZHA NOW HAVING ADDRESS AS V.T.AMBUJAM AMMAL, NAI BASTI, AKBARPURA, BAH RAICH PO., UTTER PRADESH. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.178 of 2009 --------------------------------------- Dated this 12th day of October 2009 JUDGMENT Substantial questions of law urged in the memorandum of second appeal are as to the illegality of interpretation given to the recital in Ext.A1 by the courts below and as to burden of proof on plaintiffs in proving their case. 2. Parties are referred as plaintiffs and defendants as in the trial court for convenience. The second appeal arises from judgment and decree of learned Additional Sub Judge, Alappuzha in A.S.No.59 of 2004 confirming judgment and decree of learned Principal Munsiff, Alappuzha in O.S.No.1115 of 2007. Originally, the suit was filed for a decree for prohibitory injunction. Plaintiffs claimed right, title, interest and possession of the suit property, 11.5 cents as the D schedule to partition deed No.3202 of 1965 (Ext.A1) and Ext.A2, purchase certificate dated 03-08-1973. As per that partition deed, one Velayudhan Achari was allotted 7.5 cents as the A schedule. Defendant Nos.1 to 4 are legal representatives to the said Velayudhan Achari. Defendant No.5 is wife of defendant No.4. B and C schedules in Ext.A1 were allotted to two other brothers of plaintiffs' father. Plaintiffs alleged that the defendants attempted to trespass into the suit property (D schedule in Ext.A1) and prayed for injunction. R.S.A.No.178 of 2009 2 Defendants disputed the identity of property and claim of plaintiffs regarding title and possession. During the pendency of the suit defendants executed Ext.A5, partition deed No.2284 of 2000 including a portion of suit property as well. Thereon, plaintiffs amended the plaint to incorporate prayer for declaration of their title and possession as well. Defendants filed additional written statement disputing title claimed by plaintiffs. Learned Munsiff on evidence found that plaintiffs have title over the suit property and granted decree as prayed for. First appellate court has confirmed that finding and consequently the judgment and decree. Learned counsel for appellants/defendants 1 to 4 contend in this second appeal that the interpretation given to Ext.A1 is not legally correct. At any rate, since defendant Nos.1 to 4 are in possession of the disputed property, declaration of title and possession could not have been granted. 3. Plaintiffs maintain that they are in possession of entire suit property including the portion which during pendency of the suit according to them, was included by defendant Nos.1 to 4 in Ext.A5, partition deed. Courts below found that plaintiffs are in possession of the suit property. It is seen from Exts.C1 to C4 that the advocate commissioner with the assistance of surveyor measured plaint A schedule property and found that AEMC in Ext.C3 is the portion of suit property included in Ext.A5, partition deed. It is seen from Ext.C2 that R.S.A.No.178 of 2009 3 the commissioner measured the entire A to D schedule property in Ext.A1 and found that the portion of suit property is included in Ext.A5, partition deed. Courts below have observed that defendants have not objected to Exts.C1 to C3. Though defendants contend that they are in possession of the disputed property, they did not produce any documentary evidence in support of that claim. It is on the above findings trial court as well as first appellate court found in favour of plaintiffs. No substantial question of law as urged in the memorandum of second appeal is involved. The findings of first appellate court and of trial court are based on evidence on records and of a proper appreciation of such evidence. There is no reason to admit the second appeal and issue notice to the respondents. Resultantly the second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/