IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 RSA.No. 1220 of 2008(C) ----------------------- AS.172/2007 of SUB COURT, MUVATTUPUZHA OS.160/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/RESPONDENT/PLAINTIFF:- ------------------------------------------ CHINNAMMA VARGHESE W/O.LATE VARGHESE, AGED 68 YEARS, KUNNUMMEL HOUSE, NECHOOR, MANEED VILLAGE, MUVATTUPUZHA. BY ADV. SRI.BIJU ABRAHAM RESPONDENTS/APPELLANT/DEFENDANT:- ----------------------------------------------- ANIL PETER @ ANIL PATHROSE, S/O.PATHROSE, ADUKATTILPUTHENPURAYIL NOW RESIDING AT KUNNUMMEL, NECHOOR, MANEED VILLAGE, MUVATTUPUZHA. SRI.LAL GEORGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 1220 of 2008 ========================= Dated this the 1st day of January, 2009. JUDGMENT The plaintiff in O.S. No. 160 of 2007 on the file of the Munsiff's Court, Muvattupuzha is the appellant in this Second Appeal. The said suit was one for a perpetual injunction restraining the defendant from forcibly evicting the plaintiff from the plaint schedule house claimed to be the ancestral house of the plaintiff. The defendant is the son of the plaintiff's sister. According to the plaintiff, after falling apart from her husband, she started residing in the plaint schedule ancestral house along with her father Varghese from 1974 onwards and she has a right to reside in the house notwithstanding the fact that the house has been bequeathed by her father to the defendant as per Ext.B2 registered Will dated 14.03.2002. 2. The suit was resisted by the defendant contending inter alia that even though the plaintiff was formerly residing in the plaint schedule house, she shifted her residence to Piravam in the year 2002 after which the plaintiff was not residing in the plaint schedule property and that the suit was filed out of the enemity nurtured by the plaintiff against defendant. 3. Even though the trial court decreed the suit holding that the plaintiff was in possession of the plaint schedule building and R.S.A. No. 1220/2008 : 2 : that the right of the defendant was to evict the plaintiff by recourse to due process of law, the lower appellate court on appeal preferred by the defendant reversed the decree passed by the trial court and dismissed the suit. Hence this Second Appeal. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- 1. Whether the lower appellate court was justified in nullifying the decree by which the respondent is prevented from taking law in his hand? 2. Whether the Lower Appellate court was justified in not accepting the documentary evidence produced by the appellant to show her possession over the Tharavadu house when there is a partial admission of the defendant/respondent to the effect that the appellant was residing in the house on the date of suit? 3. Is not the person in possession may have her own rights set up against the owner and she will be deprived of opportunities to set them up if no protection is afforded against the forceful dispossession and held by this Hon'ble court in 1994(1) KLT 570. 5. The learned counsel appearing for the appellants reiterated the contentions of the plaintiff. 6. The lower appellate court has, as a matter of fact, found that the plaintiff who shifted her residence from the plaint schedule building to Piravam in the year 2002, was not in possession of the plaint schedule building which as per Ext.B2 registered Will dated 14.03.2002 was bequeathed by the plaintiff's father to the defendant who is none other than the son of the plaintiff's younger sister. The finding recorded by the lower appellate court that the R.S.A. No. 1220/2008 : 3 : plaintiff is not residing in the plaint schedule house since the year 2002, is after a careful re-appraisal of the oral and documentary evidence in the case. It is a pure finding of fact. Moreover, if the injunction sought by the plaintiff is granted, it will be tantamount to grant of an injunction against the true owner particularly in a case where the testamentary dispossession under Ext.B2 Will executed by the plaintiff's father is not assailed by the plaintiff. The trial court was erroneously granting an injunction against the true owner by decreeing the suit. The findings recorded by the lower appellate court do not call for any interference. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 1st day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1220/2008 : 4 :