IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 RSA.No. 143 of 2009() --------------------- AS.83/2003 of SUB COURT,KATTAPPANA OS.70/1998 of MUNSIFF COURT,KATTAPPANA .................... APPELLANTS/ 1ST& 2ND RESPONDENT/ 1ST& 2ND DEFENDANT ----------------------------------------------------------------------------------- 1. V.SELVARAJ, S/O.VEERANNA THEVAR HAILEBURIA ESTATE, VALLAKADAVU,ELAPPARA VILLAGE. 2. PARVATHI, W/O. V.SELVARAJ, VALLAKKADAVU LINE, VALLAKKADAVU KARA, ELAPPARA VILLAGE. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.THOMAS GEORGE RESPONDENT/APPELLANT/PALINTIFF -------------------------------------------------- THE HAILEY BURIA TEA ESTATE LTD REGD. OFFICE MASCAR ROAD, WILLINGTON ISLAND KOCHI-3 (FORMERLY AT KYTHARAM BUILDINGS,KOTTAYAM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2009, ALONG WITH RSA NO. 144 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 261/2009 IN R.S.A. NO. 143 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 22.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.Nos. 143 & 144 of 2009 ---------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT Defendants 1 and 2 in O.S. 70/1998 on the file of the Munsiff Court Kattappana are the appellants in R.S.A. No. 143/2009 and the 1st plaintiff in O.S. No. 228/1995 on the file of the same court is the appellant in R.S.A. 144 of 2009. These appeals are directed against the common judgment and decree in A.S. Nos. 83/2003 and 84/2004 respectively which arises from O.S. No. 70/1998 and O.S. No.228/1995 respectively. O.S. No. 228/1995 was filed by Sri.V.Selvaraj as plaintiff for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and from demolishing its fencing and from obstructing the peaceful possession and enjoyment of plaint schedule property by him O.S. 228/1995 was decreed by the trial court. O.S. 70/1998 was filed by the Hailey Buria Tea Estate Ltd (company) for declaration of title and recovery of possession of the property. The trial court dismissed O.S. 70/1998. The lower appellate court modified the common judgment and decree in O.S. No.228/1995 and O.S. No. 70/1998 and declared the title and ordered recovery of possession over the property in Survey No. 118 and restrained the company and 14 others by a decree of permanent prohibitory injunction from trespassing into the property possessed by Sri.V.Selvaraj. The parties hereinafter R.S.A. Nos. 143 & 144 of 2009 -2- referred to as Company and Sri.Selvaraj. 2. The company filed the suit for recovery of possession of 26.760 cents of land comprised in Survey No. 118 of Elappara Village and Sri.Selvaraj filed O.S. 228/1995 against the company and 14 others for a permanent prohibitory injunction covering an extent of 1 acre 51.160 cents of land comprised in Survey No. 172 of Chakkupallom village the ' properties are lying in different villages. Ext.A1 is the sale deed produced by the company in O.S. No. 70/1998 The extent of property covered by the said sale deed is 91 acres and 20 cents which absolutely belonging to the company and entire extent is comprised in Survey No. 118 of Elappara Village. According to the Company the trial court had dismissed O.S. No. 70/1998 , finding that the property shown in the plan appended with Ext.A1 sale deed was not tallying with the plaint schedule property indicating in Ext.C2(a) Survey plan. The lower appellate court also noted the fact that DW1 (Sri.Selvaraj ) during cross examination had deposed before the trial court that he is not raising any claim over the property comprised in Survey No. 118 of Elappara village which is the plaint schedule property in O.S. No. 70/1998. The company also conceded before the trial court that they have no objection in granting a decree to Sri.Selvaraj in respect of 1 acre and 24.400 cents of property comprised in Sy.No 172 of chakkupallom village because the title to the property of the company is comprised in Sy.No.118 alone and Sri.Selvaraj is in illegal possession over an extent of 0.26.760 cents of land comprised in Sy. No.118/2 of the property of the company. According to Sri.Selvaraj the said 26.760 cents of land is a puramboke land and the same is comprised R.S.A. Nos. 143 & 144 of 2009 -3- in Sy.118/A of Elappara vilage and the company is not entitled to obtain a decree of title and recovery of possession over that extent. The lower appellate court on the basis of Ext.C2(a) plan held that Sri.Selvaraj is in possession over an extent of 1 acre and 24.400 Cents of property comprised in Sy. 172 of Chakkupallom village and he is also in illegal possession over an extent of 026.760 cents of land comprised in Sy.No.118/2 of the property of the Company. The lower appellate court passed a decree declaring the title of the company and ordered recovery of the plaint schedule property in O.S. No. 70/1998, at the same time protected the enjoyment and possession of property of Sri. Selvaraj having an extent of 1 acre 24.400 cents of land comprised in Survey No. 172 of Chakkuvallom village and granted a permanent prohibitory injunction restraining the defendants from trespassing into the said extent. The common judgment passed by the lower appellate court is based on facts, evidence and circumstances of the case. Since the findings are purely on facts proved by the respective parties, I do not find any reason to interfere with the common judgment and decree passed by the lower appellate court in both appeals. No questions of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. The appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.Nos. 143 & 144 of 2009 ---------------------------- JUDGMENT 22nd June, 2009