IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 RSA.No. 1069 of 2007() ---------------------- AS.40/2001 of ADDL. DISTRICT COURT, THALASSERY OS.321/1995 of SUB COURT, PAYYANNUR .................... APPELLANTS/PLAINTIFFS 1 AND 2 ------------------------------------------------ 1. NAGAMANGALATHILLATH SUBRAMANIAN NAMBOODIRI, S/O.LATE SAMBU NAMBOODIRI, AGED 36 YEARS, AUTO RICKSHAW DRIVER, KANKOLE AMSOM, KUNDAYAM KOVVAL DESOM, KANNUR DISTRICT. 2. NAGAMANGALATHILLATH SANKARAN NAMBOODIRI, S/O.LATE SAMBU NAMBOODIRI, AGED 20 YEARS, KANKOLE AMSOM, KUNDAYAM KOVVAL DESOM, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): DEFENDANTS AND PLAINTIFF NO.3 -------------------------------------------- 1. PORKALATHILLATH VASUDEVAN, S/O.LATE ESWARAN NAMBOODIRI, NO JOB, AGED 45 YEARS, RESIDING AT KANKOLE AMSOM, KUNDAYAM KOVVAL DESOM, KANNUR. 2. PORKALATHILLATH PADMANABHAN, S/O.LATE ESWARAN NAMBOODIRI, AGED 42 YEARS, NO JOB, KANKOLE AMSOM, KUNDAYAM KOVVAL DESOM, KANNUR. 3. PORKALATHILLATH KRISHNAN NAMBOODIRI, S/O.LATE ESWARAN NAMBOODIRI, AGED 40 YEARS, KANKOLE AMSOM, KUNDAYAM, KOVVAL DESOM, KANNUR DISTRICT. 4. NAGAMANGALATHILLATH SREEDHARAN NAMBOODIRI, S/O.LATE SAMBU NAMBOODIRI, AGED 18 YEARS, KANKOLE AMOM, KUNDAYAM KOVVAL DESOM, KANNUR DISTRICT. 5. SUPPL. 5TH RESPONDENT TO R8. WIFE. PORKULATHILLATH SAVITHRI ANDARJANAM, D/O.KRISHNAN NAMBOODIRI, AGED 39 YEARS, NO OCCUPATION, KANKOL AMSOM AND DESOM. 6. DAUGHTER. PORKULATHILLATH SANDHYA (MINOR) 17 YEARS, KANKOL AMSOM AND DESOM. 7. BROTHER. PORKULATHILLATH ISWARAN NAMBOODIRI (MINOR) 16 YEARS, KANKOL AMSOM AND DESOM. 8. BROTHER. PORKULATHILLATH DAMODARAN NAMBOODIRI (MINOR) 15 YEARS, KANKOL AMSOM AND DESOM. IMPLEADED AND AMENDED AS PER ORDER ON I.A.1210/03 AND I.A.1211/03 DATED 15/06/04. ADV. SRI.GRASHIOUS KURIAKOSE FOR R2,3& 5 SRI.M.M.ANTO FOR R2,3 & 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1069 of 2007 ---------------------------------------- Dated this the 23rd day of May, 2009 JUDGMENT 1. This Regular Second Appeal is directed against the judgment and decree in A.S. 40/2001 on the file of the Additional District Court, Thalasserry and the judgment and decree in 321/1995 on the file of the Sub Court, Payyannur. The trial court held that the plaintiffs have no title or possession over the plaint B schedule property and therefore the reliefs sought for namely; recovery of possession and prohibitory injunction were refused. In appeal the lower appellate court confirmed the findings of the trial court. Hence the appellants (plaintiffs in O.S. 321/1995) filed this Regular Second Appeal. 2. The appellants hereinafter referred to as plaintiffs and respondents as defendants. 3. According to the counsel for the plaintiffs the reasonings and conclusions arrived at by the courts below are illogical and perverse and the same overlooked the true facts and evidence adduced by the plaintiffs. He also pointed out that the mis-appreciation of true facts and evidence resulted in miscarriage of justice. According to him the courts below ought to have held that the plaint B schedule property is a part of plaint A schedule property which belongs to the plaintiffs jointly as per Ext.A1 document and by no stretch of imagination it cannot be held that R.S.A. No. 1069 of 2007 -2- the plaintiffs have no title or possession over plaint B schedule property. The learned counsel also contended that once the plaintiffs proved their title and possession over plaint A schedule property it is for the defendants to prove that they have perfected their title by way of adverse possession and limitation. The counsel also submitted Exts B3 B4 and B5 decrees and judgments have nothing to do with the present claim for recovery of possession of plaint B schedule property and the main dispute is with respect to a pathway which passes through plaint A schedule property. 4. The trial court also noted that Ext.C1 Commission report and Ext.C2 plan were only a piece of evidence and it cannot be treated as the sole evidence to prove the identity of the property that the interested testimony of PW1 and the incoherent evidence of PW2 were not sufficient to confer the evidentiary value on Ext.C1 and C2 that PW1 while giving evidence in the box has made it clear that he is not seeking a decree for recovery of possession of plaint B schedule property since he was still in possession of the same. All other ancillary questions were also considered by the trial court before passing the judgment. 5. I have perused the judgments passed by the courts below The trial court considered the claim of the plaintiffs, discussed the oral and documentary evidence of both sides and appreciated the facts, circumstances and the context in which the suit was filed. . After going through the oral and documentary evidence, the trial court legitimately inferred that the said pathway is demarcating the southern boundary of R.S.A. No. 1069 of 2007 -3- the plaintiffs' property. So the trial court rightly concluded that the plaintiffs have not succeeded in establishing title and possession with respect to the plaint B schedule property and the plaint B schedule property does not form part of plaint A schedule property. 6. The plaintiffs preferred appeal before the lower appellate court. The lower appellate court also re-appreciated the facts and evidence and held that the findings recorded by the trial court were correct and there was no reliable grounds made out by the plaintiffs to interfere with the decree and judgment passed by the trial court. The lower appellate court concluded that on a consideration of the entire evidence and circumstances as a whole on preponderance of probabilities it could be seen that the plaintiffs have not proved a case that they have got the right or possession over the entire plaint schedule properties including the plaint B schedule property and that they were entitled to injunction sought or to the recovery of possession alternatively sought. 7. Both the courts below entered findings based on the evidence adduced by the parties . Since the findings are purely based on true facts and materials, there is no chance for me to invoke Section 100 of the C.P.C. No question of law much less any substantial question of law arise for consideration in this appeal . This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1069 of 2007 ---------------------------- JUDGMENT 23rd May, 2009