IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 RSA.No. 1255 of 2004() ---------------------- AS.113/1999 of ADDL.SUB COURT,PARAVUR OS.18/1992 of MUNSIFF COURT, PARAVUR .................... APPELLANT : APPELLANT/DEFENDANT: ------------------------------------- JOSEPH, S/O.THOMAS, KUNJELIPARAMBIL, R/A .KOVATTUPARAMBIL, MADAPLATHURUTHU KARA, MOOTHAKUNNAM VILLAGE. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR RESPONDENT:RESPONDENT/ PLAINTIFF: -------------------------------------------- ANANDAN, S/O.NARAYANAN, THEYYAKATHOOTTU, MADAPLATHURUTHU KARA, MOOTHAKUNNAM VILLAGE. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1255 OF 2004 =========================== Dated this the 29th day of Januarym 2008 JUDGMENT Defendant in O.S.18/1992 on the file of Munsiff Court, North Paravur is the appellant. Respondent is the plaintiff. Respondent instituted the suit for permanent prohibitory injunction. Plaint schedule property is having an extent of 49 cents and 647 sq.links in survey No.241/30 of Moothakunnam Village. Appellant purchased some property on the north of the plaint schedule property. It was contended by respondent that the trees on the boundary of his property belong to him and appellant attempted trespass into the plaint schedule property setting up a claim on the northern portion of the plaint schedule property though he has no right over the same and therefore appellant is to be restrained by a permanent prohibitory injunction. Appellant resisted the suit contending that property of respondent is R.S.A.1255/2004 2 lying on a higher level by more than 2 feet from the property of appellant and the southern boundary of the property of appellant belongs to respondent and there are yielding areca and jack trees in the boundary portion belonging to appellant and respondent has no right over the same and respondent is not in possession of that portion of property and therefore suit is to be dismissed. 2. Learned Munsiff on the evidence of Pws 1 to 3 and Dws. 1 to 3 and Exts.A1 to A3 and Exts.C1 to C3(a) found that respondent established his right and possession to the plaint schedule property and appellant is not entitled to trespass into any portion of that property and granted a decree for permanent prohibitory injunction. Appellant challenged the judgment before Sub Court, North Paravur in A.S.113/1999. The learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned Senior counsel appearing for R.S.A.1255/2004 3 appellant was heard. 4. Learned Senior counsel relying on Ext.C1(a) plan and the oral evidence of PW3 the Surveyor argued that evidence establish that the northern survey boundary line of survey No.241/30 belonging to respondent is further to the south of the northern boundary of plaint schedule property fixed by the Commissioner and there is a level difference between the property of appellant and respondent and the disputed portion of the property which is the northern portion of plaint schedule property is part of the property of appellant and courts below were not justified in granting a decree for injunction. It was also argued that evidence of PW3 establish that respondent has no right to the strip of land which lies to the north of the northern survey boundary line of survey No.241/30 and it forms part of the property of appellant the decree for injunction granted by courts below is not sustainable. 5. On hearing the learned counsel, I do not R.S.A.1255/2004 4 find any substantial question of law involved in the appeal. 6. Being a suit for injunction, the question is with regard to the possession. Even if evidence of PW3 shows that the northern survey boundary line of 241/30 is further to the south of the northern boundary line of 21.1 links line as shown in Ext.C3(a) plan, evidence establish that respondent has been in possession of the plaint schedule property upto the northern 21.1 line as found by courts below. Courts below relied on the evidence of PW2, who was none other than the karsystha of the predecessor in interest of respondent and in fact who was examined as a witness on the side of appellant in another suit with the neighbour of appellant. In the circumstance of the case evidence of PW2 cannot be challenged by appellant. Acceptance of his evidence cannot be challenged. Evidence of PW2 establish that the assignor of appellant was not in possession of the disputed strip of land and was R.S.A.1255/2004 5 not taking the income. Courts below on the evidence found that the disputed strip of land has been in the possession of respondent. It is a finding of fact. Exercising the powers of this court under section 100 of Code of Civil Procedure reappreciation of evidence is not warranted so long as the findings is based on proper appreciation of evidence. The finding of fact by the trial court as confirmed by the first appellate court, the final fact finding court cannot be interfered, when appreciation of evidence was not perverse and is based on proper appreciation of evidence. Hence appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006