IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RSA.No. 738 of 2007() --------------------- AS.285/2004 of I ADDL.DISTRICT COURT, ERNAKULAM OS.376/2002 of II ADDL.M.C., ERNAKULAM .................... : APPELLANTS/APPELLANTS/PLAINTIFFS. --------------------------------------- 1. JOY ALEXANDER,S/O.ALEX, AGED 48, KOLARIKAL HOUSE, CHITTOOR DESOM,CHERANALLOOR VILLAGE. 2. LILLY, W/O.ALEXANDER,AGED80, KOLARIKAL HOUSE, CHITTOOR DESOM, CHERANALLOOR VILLAGE. 3. JUSTIN, S/O.AUGUSTINE, AGED 40, KOLARICKAL HOUSE, CHERANALLOOR VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. ASHOK KUMAR, S/O.RAMAN MENON, AGED 60 RESIDING AT ANUGRAHA, MURIGODIL, EDAVANAKKAD, ERNAKULAM DISTRICT. 2. MARTIN. S/O.AUGUSTINE, AGED 59, KOLARICKAL HOUSE, SOUTH CHITTOOR, CHERANALLOOR KANAYANNUR TALUK. BY ADV. SRI.T.I.DANIEL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2008,ALONG WITH RSA NO. 860 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1549/2007 IN R.S.A.No.738/2007 8.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.738 & 860 OF 2007 =========================== Dated this the 8th day of January, 2008 JUDGMENT Plaintiff in O.S.116/2002 who are the plaintiffs in O.S.376/2002 on the file of Additional Munsiff Court, Ernakulam are the appellants. Defendants are the respondents. O.S.116/2002 was instituted seeking a decree for declaration of title over the plaint schedule property and the building therein and for a permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property. O.S.376/2002 was subsequently filed seeking a decree to set aside Ext.A5 sale deed executed by first respondent in favour of second respondent R.S.A.738 of 2007. Both the suits were jointly tried and dismissed by a common judgment. That judgment was challenged before District Court, Ernakulam in A.S.284/2004 and 285/2004. Learned District Judge heard both the R.S.A.738/07 & 860/07 2 appeals and dismissed the appeals by common judgment. R.S.A. 738/2007 was filed challenging the concurrent judgment in O.S.376/2002. R.S.A.860/2007 was filed challenging the concurrent judgment in O.S.116/2002. Plaint schedule property in both the suits is one and the same. It is about 2 cents of land in survey No.578/2 of Cheranelloor village. The property admittedly originally belonged to Krishnan Raman Menon. According to appellants in 1940, about 2 cents of land in survey No.578/2 was obtained by Varuthukutty on an irrevocable licence with permission to construct a building therein. Varuthukutty thereafter constructed a building with two rooms. Later under Ext.A1 sale deed of 1957, he transferred the building and the land to Chandi. It is their further case that under Ext.A2 sale deed dated 28.11.1961 Chandi later assigned the property in favour of Alex . Alex thereafter rented out the eastern room to a goldsmith by name Moni and the western room to a barber. On the death of Alex his R.S.A.738/07 & 860/07 3 rights devolved on second appellant widow and first appellant son. Appellants contended that as the building in the plaint schedule property was constructed by Varuthukutty as per a licence granted in 1940 and Varuthukutty constructed a shop building which is permanent character incurring expenses, the licence is irrevocable and therefore first respondent, the son of Krishnan Raman Menon is not entitled to any right in the property or to trespass into the property. A decree for declaration of title under the irrevocable licence of 1940 and permanent prohibitory injunction was sought for in O.S.116/2002. Subsequently first respondent in R.S.A.860/2007 who is also the first respondent in R.S.A.738/2007 assigned the plaint schedule property in favour of second respondent in R.SA.738/2007 under Ext.A5 sale deed. O.S.376 of 2002 was instituted to set aside Ext.A5. Respondents in both the suits resisted the claim contending tht there was no licence to Varuthukutty R.S.A.738/07 & 860/07 4 with permission to construct the building. It was contended that the building in the plaint schedule property was constructed by Krishnan Raman Menon and Varuthukutty obtained one of the rooms in the building without payment of rent and Varuthukutty has been in possession of that room for two years and then he surrendered possession of the room and Varuthukutty had no right to transfer the building to Chandi or Chandi to transfer the property to Alex and appellant is not entitled to claim any right or title to the plaint schedule property. It was also contended that the building in the plaint schedule property was subsequently collapsed and no building now exists and appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2, Exts.A1 to A5, Exts.B1 to B5 and Exts.C1 and C1(a) dismissed both the suits holding that appellants did not establish the irrevocable licence in favour of Varuthukutty as claimed in the plaint and held that appellants have no title to R.S.A.738/07 & 860/07 5 the plaint schedule property and they are not entitled to challenge Ext.A5 sale deed whereunder first respondent transferred the property in favour of second respondent in R.S.A.738/2007. Both the suits were dismissed. Learned Additional District Judge reappreciated the evidence and confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. The argument of learned counsel is that Ext.A1 sale deed executed by Varuthukutty at undisputed point of time in 1957 shows that the building in the property was constructed by Varuthukutty after obtaining the land without any liability to pay rent and therefore findings of courts below that there is no irrevocable licence in favour of Varuthukutty is not sustainable. Learned counsel also argued that Exts.A3 and A4 tax receipts establish that subsequent to the purchase of plaint schedule property under Ext.A2 by Alex, tax was paid for and on behalf of Alex and the building was constructed by Varuthukutty as R.S.A.738/07 & 860/07 6 stated in Ext.A1 and therefore findings of the courts below are not sustainable. Learned counsel further argued that eventhough case of oral licence in favour of Varuthukutty was denied in the written statement filed by first respondent, in the written statement it was admitted that there was a lease of one portion of the building in favour of Varuthukutty and what was contended was that that right was subsequently surrendered after two years, but Ext.A1 establishes that till 1957 Varuthukutty continued possession of the building and he transferred the building only in 1957 in favour of Chandi and in the absence of any evidence to prove the surrender alleged by first respondent, the assertion of Varuthukutty seen in Ext.A1 should have been accepted by the courts below and appellants should have been granted the decree and the findings of courts below are not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in R.S.A.738/07 & 860/07 7 the appeal. 5. The plaint schedule property admittedly originally belonged to Krishnan Raman Meon, father of first respondent. What was contended by appellants was that there was a licence of the land granted in favour of Varuthukutty and under the licence Varuthukutty was authorised to construct a building and acting on the license he constructed a building spending expenses and continued in possession of that building till 1957, when he transferred it in favour of Chandi under Ext.A1 and Chandi continued in possession of the property till he sold it to Alex under Ext.A2 and therefore it is to be found that there is an irrevocable licence granted under section 60(b) of Indian Easement Act. The crucial question is whether there was a licence granted in favour of Varuthukutty whereunder two cents of land was entrusted to Varuthukutty with permission to put up a building and whether acting on that licence Varuthukutty constructed a building of permanent nature R.S.A.738/07 & 860/07 8 spending money. This question is the fact to be decided on the evidence on record. The trial court on appreciating the evidence found that there was no licence of land in favour of Varuthukutty and instead Varuthukutty obtained one of the rooms in the building and therefore appellants cannot claim the right as provided under section 60(b) of Indian Easement Act. The District Judge analysed the evidence and reappreciated the same. He confirmed the findings of the leared Munsiff. The question is whether that factual findings rendered by the courts below can be interfered in exercise of the powers of this court under seciton 100 of Code of Civil Procedure. 6. A finding of fact by the trial court as confirmed by first appellate court cannot be interfered by reappreciating the evidence and substituting the factual findings of this court to that of the courts below. Finding of fact by the first appellate court shall be the final. If the courts below omitted to take note or appreciate any R.S.A.738/07 & 860/07 9 piece of relevant and material evidence or appreciation of evidence by the courts below was perverse, exercising the powers of this court under section 100 of Code of Civil Procedure, this court will be justified in reappreciating the evidence. But so long as any material and relevant evidence was not overlooked and appreciation of evidence was not perverse, finding of fact rendered by the first appellate court shall be final and this court cannot reappreciate the evidence and substitute the findings of this court to that of the courts below. 7. The attempt of the learned counsel is to make this court to reappreciate the evidence and to substitute the factual findings of the courts below. But the findings of fact arrived at by courts below by reappreciating the evidence cannot be reappreciated when courts below considered and appreciated each and every piece of evidence and the appreciation of evidence was not perverse. On going through the judgments of the courts below,it R.S.A.738/07 & 860/07 10 cannot be said that the view taken by courts below on appreciation of evidence is not a possible or reasonable view . Even if the argument of learned counsel is to be accepted and the evidence is to be reappreciated and it is possible to take another view, it will not justify this court to reappreciate the evidence and substitute that finding, so long as the view taken by the courts below on appreciation of evidence is a possible and reasonable on appreciation of evidence and the appreciation of evidence was not perverse. In such circumstance, the findings of fact by courts below cannot be interfered. If so appellants are not entitled to the decree sought for in both the suits. Appeals are dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006