IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RSA.No. 1206 of 2009 ----------------------------------- AS.371/2007 of DISTRICT COURT, KOTTAYAM OS.439/2006 of MUNSIFF COURT, VAIKOM .................... APPELLANTS/APPELLANTS/PLAINTIFF: 1. DEENA PANICKER, W/O.VASAVA PANICKER, RESIDING AT POOTHARAKIZHAKKINEZHATHU, THANNIRMUKKAM KARA, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. SHALIMA CHAKRAVARTHY, D/O.VASAVA PANICKER, DO. DO. 3. SHANTHALIN CHAKRAVARTHY, S/O.VASAVA PANICKER, (MINOR) DO. DO. REP. BY MOTHER AND GUARDIAN DEENA PANICKER (IST APPELLANT). BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.V.K.SATHYANATHAN SRI.B.BIPIN RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. K.N.MANOHARAN, S/O.NANU, RESIDING AT CHENAPPADY, KUDAVECHOOR KARA, VECHOOR VILLAGE, VAIKOM. 2. BHASKARAN, S/O.VAVA, RESIDING AT IKKAPARAMBU, KUDAVECHOOR KARA, VAIKOM TALUK. ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURTON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.1206 of 2009 -------------------------------------- JUDGMENT Plaintiffs 2 to 4 in O.S.No.439/2006 on the file of Munsiff's Court, Vaikom are the appellants. Defendants are the respondents. The suit was instituted seeking a decree for permanent prohibitory injunction contending that appellants are in possession of plaint schedule property and respondents have no manner of right or possession over the said property. Respondents resisted the suit contending that appellants are not in possession of the property and therefore, they are not entitled to the decree sought for. 2. Learned Munsiff framed issues regarding possession alone. Learned Munsiff, on the evidence of PWs 1 and 2, DWs 1 to 3, Exhibits A1 and A2, D1 and D2 and C1 and C2, dismissed the suit on the ground that appellants did not establish possession. Appellants challenged the judgment before District Court, Kottayam in A.S.No.371/2007. Learned District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in this RSA 1206/09 2 second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Learned counsel argued that courts below did not properly appreciate the evidence and finding on possession is not sustainable in the light of the evidence on record. 5. On going through the judgments of the courts below, I find no substantial question of law involved in the appeal. The question whether plaintiffs have succeeded in establishing their possession or not, based on appreciation of the evidence, is a question of fact. Trial court, after proper appreciation of evidence, found that appellants are not in possession of the plaint schedule property. First appellate court re-appreciated the evidence and confirmed that finding. I cannot agree with the submission of the learned counsel that appreciation of evidence was perverse. Though learned counsel appearing for the appellants vehementally argued that an opportunity is to be granted to adduce further evidence and for that purpose suit is to be remanded, I do not find that a remand is warranted, especially when, appellants have no case that sufficient opportunity was not granted to adduce evidence. RSA 1206/09 3 Appeal is dismissed as no substantial question of laws is involved. 16th February, 2011 (M.Sasidharan Nambiar, Judge) tkv