IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 RSA.No. 902 of 2008() --------------------- AS.318/2004 of DISTRICT COURT,TRIVANDRUM OS.1806/1999 of III ADDL.M.C.,TRIVANDRUM .................... APPELLANT - APPELLANT - PLAINTIFF ----------------------------------------------------- B.GOPINATHAN, S/O.BHARGAVAN, RESIDING AT MUDUMPIL VEEDU, AMBALAKUNNU, EDAGRAMOM, NEMOM, TRIVANDRUM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: RESPONDENTS - DEFENDANTS --------------------------------------- 1. SIVANANDAN, S/O.KESAVAN, RESIDING AT PANACKARA VEEDU, MELAMCODE, NEMOM, TRIVANDRUM. 2. PRADEEP, S/O.SIVANANDAN, DO. DO. 3. SHAKEELA, OF DO. DO. 4. SREEMATHY, D/O.KOCHAPPY, RESIDING AT THATTAMKALA VEEDU, EDAGRAMOM, NEMOM, TRIVANDRUM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: : HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 902 of 2008 ---------------------------------------- Dated this the 30th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 318 of 2004 on the file of the District Court, Thriuvananthapuram which arises from the decree and judgment in O.S. 1806 of 1999 on the file of III Additional Munsiff Court, Thiruvananthapuram. The plaintiff in the Suit is the appellant herein. The suit was filed for injunction . The trial court dismissed the suit and was confirmed in appeal by the lower appeal court. Hence the second appeal The parties hereinafter referred to as plaintiff and defendants as arrayed int he Suit. 2. The plaintiff submits that his father got kudikidappu right over the plaint schedule property and he is residing in the hut situated in the plaint schedule property along with his parents and sister, and that 1st defendant is making attempts to trespass upon the property and also trying to evict the plaintiff by force. It is also averred that the plaintiff has filed an application before the Land Tribunal for purchase of kudikidappu as O.A. No 9/1987 and the same was allowed and the Purchase certificate was issued . But the defendants filed an appeal as A.A. No. 23/1991 and the matter was remanded to the Land Tribunal by the R.S.A. No. 902 of 2008 -2- Appellate Authority. After the remand of the Appellate Authority the Land Tribunal again considered the Original Application and dismissed the same against which the plaintiff has filed an appeal as A.A. No. 31/1999 and same is pending consideration. 3. The defendant No. 4 was set exparte. 4. The contentions raised by the defendant Nos 1 to 3 are that the 1st defendant purchased an extent of 14 Cents of land comprised in Sy.No.215/5 of Nemom Village, at the time of purchase, the said property was outstanding in a mortgage in favour of 3 persons including the 4th defendant and that as per Ext.B1 sale deed the 1st defendant had purchased the above said property subject to the mortgage rights in favour of the said 3 persons 5. It is not disputed that since the plaintiff's application for purchase of kudikidappu has been dismissed by the Land Tribunal, the trial court did not refer the matter for adjudication by the land Tribunal again. The trial court on the basis of evidence on record held that the 1st defendant purchased the Jenmom right over 14 cents under Ext.B1 when the property was outstanding in mortgage in favour of the plaintiff's mother Sarada, her sister Srimathy and brother Sankaran. Later Sankaran and Sarada released their mortgage right by Ext.B2 and B3 release deeds. But Sreemathy did not released her rights and continued to be in occupation of the hut situated in the property. Subsequently the 1st R.S.A. No. 902 of 2008 -3- defendant conveyed 4.667 cents to said sreemathy under Ext.B6 in lieu of her 1/ 3 mortgage right over the entire property. The trial court held that the plaintiff has not produced any evidence to show that he has got some rights over the plaint schedule property, that even if the plaintiff is able to show that he is residing in the said hut it will not confer any independent right upon the plaintiff so as to claim an equitable relief of injunction against the defendants 1 to 3. 6. Defendants 1 to 3 also filed a counter claim seeking a decree for putting up a boundary separating the property belonging to defendant No.4 covered under Ext.B6 and that of the property gifted to defendants 2 and 3 under Ext.B4 . 7. After considering the entire evidence on record and the various contentions raised by the plaintiff and defendants , the trial court dismissed the suit filed by the plaintiff and allowed the counter claim filed by defendants 1 to 3. 8. In the appeal preferred by the plaintiff the questions were re- agitated before the lower appellate court. The main contention of the plaintiff that he is entitled to kudikidappu right. The lower appellate court held that there is no acceptable evidence adduced on the side of the plaintiff to prove that he is having kudikidappu right in the property which R.S.A. No. 902 of 2008 -4- he inherited after the death of his father, that since the claim for kudikidapppu filed by him was dismissed by the Land Tribunal in an independent proceedings, there is no necessity for referring the matter again to the Land Tribunal. The lower appellate court after examining the oral and documentary evidence adduced by both parties and the Commissioner's report and plan, held that the trial court is perfectly justified in dismissing the suit filed by the plaintiff and allowing the counter claim raised by defendants 1 to 3 in their written statement. No valid grounds are made out to take a different view in this matter other than the views taken by the courts below. I find no reason to interfere with the concurrent findings entered by the courts below. The courts below have rightly adjudicated the issues on the basis of available facts, circumstances and evidence. 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. This appeal fails and accordingly dismissed in limine . (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 902 of 2008 ---------------------------- JUDGMENT 30th June, 2009