IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 RSA.No. 1113 of 2010() ---------------------- AS.101/1996 of SUB COURT, OTTAPPALAM OS.164/1990 of MUNISIFF-MAGISTRATE COURT,MANNARKAD .................... APPELLANTS/SUPPL.APPELLANTS 2-8/LEGAL HEIRS OF 2ND DEFENDANT: ------------------------------------------------------------------ 1. PAPPAMMAL, W/O. MURUKESAN, NAKKUPATHY, AGALI AMSOM AND DESOM, MANNARKKAD TALUK. 2. LAKSHMI, D/O. MURUKESAN, -DO- -DO- 3. MARIATHAL, D/O. MURUKESAN, -DO- -DO- 4. EASWARI, D/O. MURUKESAN, -DO- -DO- 5. SAYAMMAL, D/O. MURUKESAN, -DO- -DO- 6. MANIRAJ, S/O. MURUKESAN, -DO- -DO- 7. SIVAKUMAR, S/O. MURUKESAN, -DO- -DO- BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT(S)/RESPONDENTS/PLAINTIFF D1 & D3: -------------------------------------------- 1. MASANI, D/O. ADIVASI NANCHI, NAKKUPATHY, AGALI AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 581. 2. PAPPAMMAL, S/O. NANCHAN, -DO- -DO- 3. K.C.IBRAHIM, S/O. KASSIM KUNJU, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON 18/10/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1113 OF 2010 ----------------------------------- Dated this the 18th day of October, 2010 J U D G M E N T The appellants are the legal heirs of the 2nd defendant in O.S.No.164 of 1990 on the file of the Munsiff Magistrate Court, Mannarkkad. The suit was one for recovery of possession filed by the 1st respondent/plaintiff. The decree passed in favour of the plaintiff was confirmed in appeal by the learned Sub Judge, Ottappalam. Concurrent decision so rendered by the two courts below is challenged in this appeal. 2. The decree of the trial court was challenged by the 2nd defendant, and pending that appeal, on his death, these appellants have been impleaded as additional appellants therein. Appeal being dismissed confirming the decree of the trial court, they have come up with this second appeal. Plaintiff claimed title over 'A' schedule property on the basis of A1 assignment deed from her mother and also later obtaining purchase certificate over such property from the Land Tribunal, Agali. 'B' R.S.A.NO.1113/2010 2 schedule is a portion of 'A' schedule, and over the same, according to the plaintiff, on false allegations showing artificial boundaries, the 1st defendant had obtained an ex parte decree of injunction against her. Since her husband was bedridden and later succumbed to his illness, she could not defend that case and that had resulted in the ex parte decree, was her case. Subsequent to the obtaining of the decree of injunction, the 1st defendant had trespassed upon 'B' schedule property and reduced it into his possession and a claim over such property is also made by the other defendants, was the case canvassed to seek recovery of possession of 'B' schedule with mesne profits on the strength of her title. Suit claim was resisted by defendants 1 and 3 filing a joint written statement, wherein, impeaching the description of the plaint schedules, it was contended that the 1st defendant is having title and possession over 67 cents of property and there was an attempt to trespass upon that property by the plaintiff and her husband. He had instituted a suit for injunction against them, in which, an ex parte decree was also granted. The finality of that decree was banked upon R.S.A.NO.1113/2010 3 contending that the plaintiff has no right over 'A' and 'B' schedule properties. In the alternative, these defendants also claimed of prescribing title by adverse possession over the property in their possession, to contend that the plaintiff is not entitled to the recovery canvassed for. The 2nd defendant filed a separate written statement contending that he had purchased 9.4 acres of property in Sy. No.1683/1, 2 4 and 5 under a registered deed, which, on actual measurement, was later found to be 8.75 acres and that he is in exclusive possession and enjoyment of that property. He further contended that he is not in possession of the property described as 'B' schedule and he is not a necessary party to the suit. 3. On the materials placed in the case, which consisted of PW.1 and Exts.A1 to A9 for the plaintiff and DWs.1 to DW.3 and Exts.B1 and B2 for the defendants and Exts.C1 to C4 reports and plan prepared by the Advocate Commissioner, the trial court found that the 1st defendant is in possession of 1.16 acres of land and the 2nd defendant, 67 cents of land in 'A' schedule covered by R.S.A.NO.1113/2010 4 the title deeds of the plaintiff. The title of the plaintiff over 'A' schedule property established by the materials tendered and the challenges raised by the defendants disputing the title of the plaintiff found meritless, the trial court granted decree for recovery of 'B' schedule with mesne profits from the defendants. The lower appellate court, after re-appreciation of the evidence, has confirmed that decree dismissing the appeal preferred by the 2nd defendant, which, later, on his death, was continued by his legal heirs, the present appellants. As against the decree passed by the trial court, there was no further challenge by the defendants 1 and 3 in the suit. 4. The decree granted in favour of the plaintiff by the trial court and confirmed by the lower appellate court is assailed by the appellants contending that serious disputes raised over the identity of the property, its measurement and description and also challenges to the title of the plaintiff were not properly appreciated and considered by the courts below. The lower appellate court dismissed the appeal without properly R.S.A.NO.1113/2010 5 re-appreciating the evidence, and also ignoring vital documents tendered in the case, is their further case. 5. After going through the judgments rendered by both the courts, I find the challenges raised against the concurrent decision rendered in favour of the plaintiff are meritless and the decree granted in favour of the plaintiff does not suffer from any infirmity. In the written statement, the 2nd defendant, the predecessor of the present appellants, had not raised any claim over 'B' schedule, the recovery of which was sought for by the plaintiff. He claimed title over 8.75 acres of land in a different survey number on the basis of the title deeds obtained in his favour. The description of the property obtained by him, both the courts have found related to a property other than 'A' schedule and, further, situated in a different survey number. Both the courts have found that the 2nd defendant is found to be in possession of 47 cents covered by 'B' schedule in Sy.No.1681/5 without having any right or title thereto and he has under B1 title deed and B2 purchase certificate, title and R.S.A.NO.1113/2010 6 possession only over the property in Sy.No.1683/1, 2, 4 and 5 and the boundary description of those properties is entirely different from that of 'B' schedule covered by A1 deed, A2 and A3 purchase certificates of the plaintiff. The 2nd defendant has not even canvassed an alternate plea as to having any possession over any portion of 'B' schedule property and that such possession with necessary animus against the plaintiff for over the statutory period impeaching her entitlement to seek its recovery. On the contrary, as narrated earlier, his case was that he has no possession over any portion of 'B' schedule property. Even after the Advocate Commissioner, on measurement and identification of the plaint properties filed the reports and plans showing a portion of B schedule under his possession no amendment to the written statement was sought for and the defense stated in the previous written statement as to having no possession over 'B' schedule was still pursued. That being so, the challenges now canvassed to impeach the concurrent finding rendered by both the courts below that the plaintiff has established her title to claim recovery of 'B' schedule from the R.S.A.NO.1113/2010 7 defendants have no basis or value. There is no merit in the challenge mooted that the appellate court has not re-appreciated the evidence with reference to the materials tendered. It has taken due note of the documents produced by both sides to decide the question of rival title canvassed by the parties and has confirmed the finding rendered by the trial court in favour of the plaintiff. The appeal does not involve any question of law, leave alone any substantial question of law for receiving it on the file of the court. Appeal is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1113/2010 8