IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 SA.No. 534 of 1997(E) --------------------- AS.95/1991 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.284/1987 of MUNSIFF'S COURT, NORTH PARAVUR .................... APPELLANT(S): (APPELLANT-DEFENDANT) ----------------------------------------------------------------- SANKU MADHAVAN, THAIKKOOTTATHIL, PATTANAM MURI, VADAKKEKARA PAKUTHY. BY ADVS. MR.DINESH R.SHENOY, MR.S.VIDYASAGAR. RESPONDENT(S): (RESPONDENT-PLAINTIFF): --------------------------------------------------------------------- *AUGUSTHY VARGHESE, MALIYEKKAL, KUZHUPPILLY MURI AND VILLAGE.(DIED)- LR'S IMPLEADED: *IT IS RECORDED THAT THE RESPONDENT IS DEAD VIDE ORDER DATED 21/07/98 ON MEMO CF 562/98. **ADDL.R2 TO R5 IMPLEADED: R2. SMT.AMMINI, AGED 66, SON OF SANKU, THYKKOOTTATHIL, PATTANAM MURI, VADAKKEKARA VILLAGE, NORTH PARAVUR. R3. SMT. JANCY, WIFE OF DR.ANTONY, KATTIKKARAN, CHITTOOR ROAD, ERNAKULAM. R4. ANITHA, WIFE OF PAPPAN, AYINATTUPAARAYIKKARAN, THRIPUNITHURA. Kss ..2/- ..2... S.A.NO.534/1997 R5. DR.JUSTIN, SON OF MALIYAKKAL VARGHESE, MEDICAL PRACTITIONER, KOONAMMAVU P.O., N.PARAVUR. (**ADDL.RESPONDENTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED RESPONDENT AS PER ORDER (SEPARATE) DTD. 25/06/99 IN CMP.NO.691/08) ADDL.R2 TO R5 BY MR.GOVIND K.BHARATHAN, SR.ADVOCATE, SMT.S.USHA SAI, SMT.L.P.ANITHA. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009, ALONG WITH S.A.NO.807 OF 1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. =============== S.A. Nos.534 & 807 of 1997 ===================== Dated this the 15th day of January, 2009. JUDGMENT These Second Appeals arise from the common judgment passed by the Court of the Additional District Judge of North Paravur in A.S.Nos.95 and 97 of 1991 respectively. They were therefore heard together and are being disposed of by this common judgment. 2. The appellant in S.A.No.534 of 1997 is the defendant in O.S.No.284 of 1987 on the file of the Court of the Munsiff of North Paravur. The respondent is the plaintiff therein. The appellants in S.A.No.807 of 1997, who are the sons of the appellant in S.A.No.534 of 1997, are the plaintiffs in O.S.No.471 of 1987 on the file of the Court of the Munsiff of North Paravur. The respondent therein, who is none other than the plaintiff in connected suit, O.S.No.284 of 1987, is the defendant therein. 3. The respondent in these appeals instituted O.S.No.284 of 1987 in the Court of the Munsiff of North Paravur against the appellant in S.A.No.534 of 1997 seeking a permanent prohibitory injunction restraining him from entering into the suit property or from interfering with his possession and enjoyment thereof. The SA Nos.534 & 807 of 1997 -: 2 :- suit property in O.S.No.284 of 1987 is a parcel of land, 58 cents in extent, situated in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District. The plaintiff in O.S.No.284 of 1987 obtained title to the said parcel of land as per Ext.A1 exchange deed executed by Smt.Kamalakshmy. According to the plaintiff, Smt.Kamalakshy, who had executed Ext.A1 exchange deed, was in possession of 1 acre and 79 cents of land in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District and out of the said extent of land, she had assigned 1.21 acres of land to his daughter Smt.Jancy Varghese as per exchange deed No.3305 dated 23.8.1978. He further contended that his daughter had assigned the said parcel of land thus obtained by her to the defendant as per Ext.B1 assignment deed dated 27.8.1984 and that he is in possession of 58 cents of land covered by Ext.A1 exchange deed. The suit was instituted on the allegation that the defendant who is in possession of the lands conveyed to him under Ext.B1 which lie to the south of the 58 cents of land belonging to him as per Ext.A1, is attempting to trespass into the said parcel of land and to prevent him from possessing and enjoying the suit property. 4. After O.S.No.284 of 1987 was instituted, the sons of the defendant therein instituted O.S.No.471 of 1987 against the plaintiff in O.S.No.284 of 1987 for a permanent prohibitory injunction restraining him from trespassing into the suit property or SA Nos.534 & 807 of 1997 -: 3 :- from interfering with their possession and enjoyment thereof. The suit property in O.S.No.471 of 1987 comprises of three items. Item No.1 is described in the A schedule as a parcel of land, 11.04 acres in extent, consisting of 2.75 acres of land situated in Sy.No.137/1 and 8.29 acres of land situated in Sy.No.138/1. Item No.2 is described in the B schedule as a parcel of land 1.26 acres in extent, situated in Sy.No.138/1 and item No.3 is described in the C schedule as a parcel of land 4.62 acres in extent, situated in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District. The plaintiffs in O.S.No.471 of 1987 contended that they have obtained title to and possession over the suit property as per Exts.B11 and B12 sale deeds and Ext.B14 gift deed, that the lands in Sy.No.138/1 have a total extent of 14.06 acres only, that they are in possession of the entire extent of the lands in Sy.No.138/1 and that the plaintiff in O.S.No.284 of 1987 (the defendant in O.S.No.471 of 1987), does not have title to or possession over any portion of the land in Sy. No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District. 5. The trial court on an analysis of the evidence oral and documentary available in the case, held that the plaintiff in O.S.No.284 of 1987 has title to and possession over 58 cents of land situated in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District, described in Ext.A1 exchange deed and that the SA Nos.534 & 807 of 1997 -: 4 :- plaintiffs in O.S.No.471 of 1987 have title to and possession over the lands described in Exts.B11 and B12 sale deeds and Ext.B14 gift deed. O.S.No.284 of 1987 was accordingly decreed restraining the defendant therein from interfering with the plaintiff's possession and enjoyment of 58 cents of land situated in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District. O.S.No.471 of 1987 was also decreed and the defendant therein (the plaintiff in O.S.No.284 of 1987) was restrained from interfering with the plaintiffs' possession and enjoyment of the suit property in O.S.No.471 of 1989, described in plaint A, B and C schedules except 58 cents of land comprised in Sy.No.138/1, described in the schedule to the plaint in O.S.No.284 of 1987. The defendant in O.S.No.284 of 1987 and the plaintiffs in O.S.No.471 of 1987 carried the matter in appeal contending that O.S.No.284 of 1987 should have been dismissed and O.S.No.471 of 1987 should have been decreed in full. By a common judgment delivered on 24.6.1996, the Court of the Additional District Judge of North Paravur dismissed the appeals. Hence these Second Appeals. 6. I have heard Sri.S.Vidyasagar, the learned counsel appearing for the appellants in these appeals. I have also considered the submissions made at the Bar by the learned counsel. The pleadings in the two suits disclose that the dispute arose out of rival claims for possession over the same parcel of land, 58 cents in SA Nos.534 & 807 of 1997 -: 5 :- extent, situated in Sy.No.138/1 of Vadakkekara Village, Paravur Tlauk, Ernakulam District. The appellants have no case that they are in possession of the said parcel of land otherwise than under a valid document of title. Their claim is that they are in possession of the said parcel of by virtue of Exts.B11 and B12 sale deeds and Ext.B14 gift deed. The appellants do not dispute the fact that the respondent in these appeals had as the power of attorney of his daughter Smt.Jancy Varghese, assigned to the appellant in S.A.No.534 of 1997 an extent of 1.21 acres of land situated in Sy.No.138/1 of Vadakkekara Village, Paravur Tlauk, Ernakulam District as per Ext.B1 assignment deed dated 27.8.1984. The evidence on record discloses that the property covered by Exts.B1 and A1 having a total extent of 1.79 acres of land originally belonged to the Yahooda Church. The said parcel of land was in the possession of Smt.Kamalakshy, the lessee, who executed Ext.A1 exchange deed in favour of the plaintiff in O.S.No.284 of 1987 in respect of 58 cents of land in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District. She had on the very same day on which Ext.A1 exchange deed was executed assigned 1.21 acres of land situated in Sy.No.138/1 to Smt.Jancy Varghese (daughter of the respondent herein) as per sale deed No.3306 of 1978. It was from Smt.Jancy Varghese that the appellant in S.A.No.534 of 1997 purchased 1.21 acres of land as per Ext.B1 assignment deed dated SA Nos.534 & 807 of 1997 -: 6 :- 27.8.1984. The contention raised by the appellants in these appeals is that the total extent of lands in Sy.No.138/1 is only 14.06 acres and that they are in possession of the entire extent of lands under valid documents of title. As noticed by the courts below, 14.06 acres of lands which the appellants claim is the total extent of lands situated in Sy.No.138/1 of Vadakkekara Village, Paravur Taluk, Ernakulam District, are the lands described in Exts.B11 and B12 sale deeds and Ext.B14 gift deed. The appellants do not dispute that the appellant in S.A.No.534 of 1997 has title to and is in possession of 1.21 acres of land conveyed to him by the respondent in these appeals. If that extent of land is also to taken into account, the extent of land situated in Sy.No.138/1, will be much more than the extent claimed by the appellants. The appellants have no case that they are in possession of the suit property in O.S.No.284 of 1987 otherwise than under a valid document of title. Their claim is that no such land exists. As noticed by the courts below, Ext.B1 sale deed executed by the respondent in these appeals in favour of the appellant in S.A.No.534 of 1997 and the recitals in Ext.A1 exchange deed executed by Smt.Kamalakshmy in favour of the respondent disclose that she was in possession of 1.79 acres of land in Sy.No.138/1, out of which an extent of 58 cents was conveyed to the respondent as per Ext.A1 assignment deed and the balance extent of 1.21 acres SA Nos.534 & 807 of 1997 -: 7 :- was conveyed to the respondent's daughter Smt.Jancy Varghese as per sale deed No.3306/1978. The property conveyed to Smt.Jancy Varghese was assigned by her to the appellant in S.A.No.534 of 1997 as per Ext.B1 sale deed dated 27.8.1984. In my opinion, the recitals in Exts.A1 and B1 cut at the root of the contention raised by the appellants that the respondent herein is not in possession of any land in Sy.No.138/1. 7. The courts below have on an analysis of the evidence oral and documentary available in the case held that the respondent in these appeals has title to and is in possession of 58 cents of land situated in Sy.No.138/1 described in Ext.A1 exchange deed. The said finding is a finding of fact, arrived at by the trial court on an analysis of the evidence on record and affirmed by the lower appellate court in appeal. The Apex Court has in Thiagarajan v. Sri.Venugopalaswamy B. Koil - (2004) 5 S.C.C. 762 held that where findings of fact arrived at by the lower appellate court are based on evidence, the High Court in Second Appeal cannot substitute its own findings on a re-appreciation of the evidence merely on the ground that another view was possible. Again in Commissioner, HRCE v. P. Shanmugama - (2005) 9 S.C.C. 232, the Apex Court has held that the High Court has no jurisdiction in Second Appeal to interfere with findings of facts. Still later, in State of Kerala v. Mohd. Kunhi - (2005) 10 S.C.C. 553, the Apex Court has held that SA Nos.534 & 807 of 1997 -: 8 :- even if the first appellate court commits an error in recording a finding of fact, that by itself will not be a ground for the High Court to upset the same in Second Appeal. The courts below have on an analysis of the evidence oral and documentary available in the case held that the respondent is in possession of 58 cents of land in Sy.No.138/1 described in Ext.A1 exchange deed. The said finding cannot be said to be a perverse finding or a finding which is not supported by the evidence on record. Therefore, apart from the fact that a re-appreciation of the evidence is not permissible in second appeal even if this Court were to re-appreciate the evidence, it cannot be said that the findings of the courts below are not warranted by the evidence on record. I therefore hold that no grounds have been made out to interfere with the concurrent findings of the courts below and that no substantial question of law arises for determination in these Second Appeals. The Second Appeals fail and they are accordingly dismissed. No costs. P.N.Ravindran, Judge. ess 15/1