IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 RSA.No. 135 of 2009() --------------------- AS.45/2005 of ADDL. DISTRICT COURT, KOZHIKODE-III OS.240/2003 of ADDL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT/APPELLANT/PLAINTIFF T.K. MUHAMMED SHERIFF, AGED 47 YEARS, S/O. M.K. KUNHAVARAN, T.K. HOUSE, EAST NADAKAVU, KACHERI AMSOM DESOM, KOZHIKODE TALUK BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT: MAZOOD AGED 48 YEARS, S/O. ANTHRU, ALFI HOUSE, EAST NADAKAVU, KACHERI AMSOM DESOM, KOZHIKODE TALUK THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 135 of 2009 * * * * * * * * * * * * * * * * * * Dated : 3rd day of February, 2009 JUDGMENT The plaintiff in O.S. No. 240 of 2003 on the file of the Addl. Munsiff's Court-I, Kozhikode is the appellant in this Second Appeal. The said suit was one for a perpetual injunction restraining the defendant and his men from trespassing into the plaint schedule bunk and from interfering with the peaceful possession and enjoyment of the same by the plaintiff. 2. The case of the plaintiff can be summarised as follows:- As per Ext.A1 permission dated 21-12-1994 granted by the Calicut Corporation, the plaintiff was allotted the site (where the plaint schedule bunk is situated), to construct the bunk and use it on a license fee of Rs. 10/- per square feet per month. Accordingly, the plaintiff constructed the bunk and has been paying the license fee to the Corporation. The license was renewed in the year 2003 as per Ext.A2. The plaintiff and the defendant entered into an oral partnership business in chappals. Some time in July 2002 the partnerhsip business was discontinued and all transactions settled between them. The bunk was closed for a month. On 31-3-2003 when the plaintiff attempted to start the business the defendant and his men obstructed. Hence, the suit. R.S.A. NO. 135 of 2009 -:2:- 3. The suit was resisted by the defendants contending inter alias as follows:- It is true that the site for the plaint schedule bunk was allotted to the plaintiff as per Ext.A1. On 18-8-1995 there was a written partnership agreement between the plaintff, this defendant and this defendant's wife Sahira for conducting a business in chappals. The defendant was the managing partner. On the same day, that is, on 18-8-1995 itself the plaintiff and defendant had entered into Ext.B1 agreement by which the plaintiff had transferred the bunk in favour of the defendant for a consideration of Rs. 35,000/- and undertaking to pay a sum of Rs. 1,000/- every month to the plaintiff. The plaint allegations are false. The plaintiff is not in possession of the bunk. 4. On the side of the plaintiff, he examined himself as P.W.1 and got marked Exts. A1 to A7. On the side of the defendant two witnesses were examined as Dws 1 and 2 of whom DW1 is the defendant himself and he got marked Exts. B1 to B7. Ext. C1 is the report of the Commissioner deputed by the trial court. 5. The learned Munsiff, after trial as per judgment and decree dated 25-2-2005 dismissed the suit holding that in the absence of positive evidence to show that the partnership business had been dissolved and the accounts were settled, the plaintiff being one partner cannot injunct the other partner. The R.S.A. NO. 135 of 2009 -:3:- suit was accordingly dismissed. On appeal preferred by the plaintiff as A.S. No. 45 of 2005, the learned Subordinate Judge, Kozhikode as per judgment and decree dated 20-2-2008 dismissed the appeal confirming the judgment and decree passed by the trial court. 6. The following are the questions of law which have been formulated in the memorandum of Second Appeal:- A.) Whether on the facts and circumstances of the case, is not the finding of the Lower appellate court that the option of the plaintiff is to get the defendant and his wife evicted from the plaint scheduled shop having recourse to appropriate law is perverse and unsustainable ? Is not the finding of the lower appellate court that the document produced would go to show the defendant continued to be the lessee or tenant in occupation of the plaint scheduled bunk is perverse and based on no material on record ? B) Whether on the facts and circumstances of the case, has not the Lower Appellate Court exceeded its jurisdiction while making unwarranted observation and making baseless conclusions without any material ? C) Is the Lower appellate court justified in law in finding without any basis that the plaintiff has obtained lease from Kozhikode Corporation. Is the lower appellate court justified in considering Ext.B1 as a lease Agreement ? R.S.A. NO. 135 of 2009 -:4:- D) Whether on the facts and circumstances of the case, have not the Courts below wrongly cast the burden of proof on the plaintiff. Has plaintiff any duty to establish the negative ? E) Has not the lower appellate court failed to consider the fact that even the defendant has no case as the one concluded by the lower appellate court ? Has not the lower appellate court erred in observing that the plaintiff has terminated the lease and there was no handing over of vacant possession of the bunk to the plaintiff, when the plaintiff or the defendant has no such case relating to the handing over of possession to the defendant. Has not the Courts below gone beyond the scope of the suit and evidences in the case ? F) Having found that the plaint schedule property is in possession of the plaintiff, are the courts below justified in dismissing the suit ? Is the trial court justified in assuming that the plaint schedule property, namely the Bunk is a partnership property ? G) Having found that the plaintiff is the owner of the plaint schedule Bunk, the trial court erred in placing reliance on Ext.B1 agreement to justify the so-called transfer of the Bunk ? H) Whether on the facts and circumstances of the case, have not the courts below committed apparent error in deciding questions of fact ? Is not the appreciation of evidence by the Courts below perverse ? Have not the courts below based its judgment on irrelevant aspects and failed to consider relevant aspects of the case ? R.S.A. NO. 135 of 2009 -:5:- 7. The learned counsel appearing for the appellant/plaintiff submitted that the observations made by the lower appellate court are beyond the pleadings and evidence and the lower appellate court could not have held that the defendant or his wife Sahira is a lessee in occupation of the plaint schedule bunk and that the remedy of the plaintiff was to evict the lessee from the plaintiff schedule bunk. 8. It is true that the lower appellate court has made certain observations which were really not necessary for the dismissal of the appeal. The lower appellate court having concurred with the trial court that in the absence of evidence, to show that the partnership has been dissolved and the accounts had been settled, the plaintiff could not injunct the other partner from trespassing into or interfering with the alleged possession of the plaintiff in respect of the plaint schedule bunk in question. The only question germane for consideration in a suit of this nature as to whether the appellant/plaintiff was in exclusive possession of the bunk in question so as to keep the defendant at bay. Both the courts below have held that the plaintiff has not made out a case for injunction . 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 Second Appeal also do not arise for determination in this Second Appeal which is accordingly R.S.A. NO. 135 of 2009 -:6:- dismissed in limine. It is made clear that the other observations and findings in the judgment of the lower appellate court cannot be used against the appellant as the same were foreign to the scope of a suit of this nature. Dated this the 3 rd day of February 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.