IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 174 of 2010() --------------------- AS.92/2008 of SUB COURT, KASARAGOD OS.319/2007 of PRL.MUNSIFF COURT, KASARAGOD .................... APPELLANT/ APPELLANT/PLAINTIFF: ---------------------------------------- M.KUNHIRAMAN, AGED 51 YEARS, S/O.PUTHARIAN, BEDICHAL OF THEKKIL VILLAGE AND POST, KASARAGOD. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------- 1. MUSTHAFA, S/O.LATE ABDUL LATHEEF, NAIMARMOOLA OF MUTTATHODY, KASARAGOD. 2. ASLAM, -DO-, -DO-. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.174 of 2010 --------------------------------------- Dated this 22nd day of March, 2010 JUDGMENT Plaintiff who successively lost in the courts below is the appellant before me. The challenge is to the judgment and decree of the courts below refusing to grant prohibitory injunction. He claimed to be the owner in possession of plaint A schedule property, originally stated as 29 cents acquired by him as per proceeding in L.A.No.238 of 1995 and later corrected as 26 cents. He apprehended that respondents would trespass into the suit property and hence the suit. Respondents denied that appellant has title and possession of plaint A schedule and claimed that he fabricated documents to support a false claim. They denied that plaint A schedule property is assigned to appellant by the Government, instead, plaint A schedule was assigned to Ayshabi, mother of respondents. Trial court found that documents produced by the appellant are fabricated his claim of possession is not proved and consequently dismissed the suit. First appellate court has confirmed that finding and hence the second appeal urging by way of substantial question of law whether courts below were correct in dismissing the suit for injunction holding that appellant has no title over the suit property. 2. Ext.A1 is the purchase certificate dated 04-08-1996 relied R.S.A.No.174 OF 2010 2 on by the appellant to prove his title and possession of the suit property. In the plaint, what is stated is that he got assignment of the property from Government in L.A.Proceeding No.238 of 1995. He produced along with the plaint a photocopy of that patta. That photocopy is marked as Ext.B1. Later appellant produced the original itself, Ext.A1. Courts below found that Ext.B1 did not anyway tally with Ext.A1. So far as Ext.A1 is concerned the version of PW1 is that he produced copy of purchase certificate along with the plaint (Ext.B1) and at time of trial he produced Ext.A1, the original (which did not tally with Ext.B1). Learned Munsiff observed that Ext.B1 it is seen that Ext.B1 is not a photocopy of Ext.A1. Ext.B1 is dated 30-10-1998 and there, L.A number is written in hand while in Ext.A1, L.A number is type written. Ext.A1 is printed in a government press in the year 1999 while Ext.B1 shows that it was issued on 04-08-1996. It is in these circumstances courts below found that Ext.B1 produced by the appellant in the trial court claiming to be the photocopy of purchase certificate issued to him is fabricated after 1999 and in the circumstance claim of appellant regarding title and possession cannot be accepted. Ext.B2 is the copy of plan given by the appellant to the Advocate Commissioner at the time of inspection claiming to be in respect of the suit property. Learned Munsiff found that Ext.B2 is a fabricated document in that, it does not contain any specification and characteristic of a plan and did not even revealed who prepared it. Appellant gave evidence as PW1 and stated that he got Ext.B2 from R.S.A.No.174 OF 2010 3 the Village Office, Muttathody but the endorsement on Ext.B2 did not reveal that. Ext.B6 is the plan obtained by the respondents. Learned Munsiff observed that verification of Exts.B2 and B6 also revealed that Ext.B2 is fabricated. In Ext.B2, resurvey number is given as 263/11B7 while in Ext.B6 it is given as 2631/E/1B2 which is assigned to Ayshabi, mother of respondents as per Exts.B4 and B5. Exts.B4 and B5 revealed that 72 cents in the said resurvey number was assigned to the said Ayshabi. According to the appellant there are three houses in the suit property of which one is tiled house and the other two are RCC buildings. He stated that elder brother of respondents is residing in the house marked as H2 in Ext.C2. But, he does not know who had constructed that house. He also does not know who constructed gate of the suit property. He does not know who had constructed the compound wall (though in the plaint the suit property is described as bounded by compound walls constructed by him). Appellant claimed that he has not got any permit from the panchayath to construct building in the suit property. On the other hand Exts.B2 and B3 show that respondents' predecessor had title and possession of the suit property. The finding is based on the evidence on record and does not involve any substantial question of law. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/