IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 RSA.No. 130 of 2009() --------------------- AS.98/2003 of ADDL.DISTRICT COURT,KOTTAYAM OS.162/1997 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANTS/RESPONDOENTS 1 TO 4/DEFENDANTS 1 TO 4 -------------------------------------------------------------- 1. PHILIP.K.GEORGE, S/O.VARKEY KANNAMPUZHA HOUSE, UNIVERSITY ROAD, MANNANAM KARA, ATHIRAMPUZHA VILLAGE 2. JAMES K.GEORGE, S/O.VARKEY, KANNAMPUZHA HOUSE, UNIVERSITY ROAD, MANNANAMKARA, ATHIRAMPUZHA VILLAGE. 3. ANNIE SCARIA, W/O.SCARIA, MAMMOOD HOUSE, PUZHAVATHU KARA, CHANGANACHERRY. 4. BETTY KUNCHERIA, W/O.KUNCHERIA, THURUTHUMALA HOUSE, KOTTAPURAM, VILLONNY KARA, ARPOOKARA VILLAGE. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT RESPONDENT/APPELLANT & 5TH RESPONDENT/PLAINTIF & 5TH DEFENDANTS : ---------------------------------------------------------------------------- 1. PHILOMINA, W/O.JOSE, KOOTTIYANI HOUSE, PALAI KARA, MEENACHIL VILLAGE AND TALUK. 2. ACHAMMA, D/O.CHACKO, ATHIMATTATHIL THAYIL HOUSE, MANNANAM KARA ATHIRAMPUZHA VILLAGE, AMALAGIRI.PO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 233 OF 2009 IN R.S.A. NO. 130 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 29.5.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 130 of 2009 ---------------------------------------- Dated this the 29th day of May, 2009 JUDGMENT This Regular Second appeal is directed against the judgment and decree in A.S. 98/2003 on the file of the Additional District Court, Kottayam arising out of the judgment and decree dated 11.12.2002 in O.S. 162/1997 on the file of the Additional Sub court, Kottayam. The suit was filed for declaration of title, recovery of possession with mesne profits and permanent prohibitory injunction. The trial court dismissed the suit The lower appellate court set aside the trial court's judgment and decree and allowed the appeal and decreed the suit as prayed for by the plaintiff . Hence this Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff's claim is that she is the owner of the plaint schedule property as per Sale deed No. 2029/1997 of Ettumanoor S.R.O purchased from Pothen Chacko which is a portion of a larger extent having 4 Acres and 2 Cents. The said Pothen Chacko is the father of the 5th defendant. The 5th defendant filed O.S. 496/1983 challenging the sale deeds executed by her father including the sale deed mentioned above and claimed recovery of her share over the properties. The said suit was dismissed on 1.2.1990 After the dismissal of the suit , the 5th defendant came and started residence near the plaint schedule property and was R.S.A. 130 of 2009 -2- moving in friendly terms with the plaintiff. 5th defendant told the plaintiff that she will look after the plaint schedule property as a care taker. It is her further case that while she was enjoying the properties right from the date of sale deed, behind her back, the property was reduced to the possession of the 1st defendant in collusion with the 5th defendant and according to plaintiff the present possession of the property was procured by the 1st defendant by fraudulent acts and forcible trespass. 3. The defendants contested the suit . They have denied all the averments in the plaint. According to them the sale deed No.2029/1977 was only a sham document. Even after the sale deed the property continued in the possession of Chacko Thayyil, the grand-father of the defendants, till his death in 1978 and thereafter it was in the possession of their mother Mariakutty and Achamma Chacko, the 5th defendant . Later in the year 1982 a partition was effected on 24.3.1992 and in the partition 1 Acre 4 Cents including the plaint schedule property was set apart to the share of the 1st defendant. The said sale deed in favour of plaintiff is the result of fraud practised by Chacko and others, that their grand-father Chacko Thayyil was not a party to that document and the property was never measured and demarcated at any point of time which was lying contiguously. The defendants have also a case that they were in long continuous and uninterrupted possession of the property and the plaintiff is not entitled to any reliefs. R.S.A. 130 of 2009 -3- 4. According to the 5th defendant there was no occasion for entrusting the plaint schedule property by the plaintiff to the 5th respondent or anybody. The possession of the plaint schedule property by the 1st defendant and his predecessors is absolute , continuous, open, public and in exclusion of all others including the plaintiff and the plaintiff is completely excluded from the possession of the plaint schedule property and she has no possession or enjoyment of the property at any moment of time. 5. The evidence consists of oral testimonies of PW1 and DWs 1 to3 , Exts A1 to A8 and B1 to B22. The trial court examined all the issues in detail and analysed is solely on the basis of evidence. The trial court noticed the fact that more or less for the same relief the 5th defendant filed O.S.496/1983 challenging the documents executed by her father Pothen Chacko and the suit was dismissed for default. The dismissal of that suit was taken by the trial court as a ground to hold that the 5th defendant is estopped from contending that Ext.A1 sale deed was executed by playing fraud upon late Pothen Chacko. Exts.A6 and A7 are the certified copies of the judgment and decree in O.S. 496/1983 The trial court observed that the Pothan Chacko had executed ever so many other documents with regard to his properties and even though an attempt was made by the 5th defendant to challenge those documents, finally she has not prosecuted that matter and the case filed by her was dismissed R.S.A. 130 of 2009 -4- for default. The plaintiff also produced further documentary evidence namely Ext.A2, A3 and A4 and the oral evidence to prove the possession and enjoyment of the plaint schedule property. The trial court discussed the context in which the earlier suit i.e. O.S. 496/1983 was filed by the 5th defendant. After examination of the documents produced by the plaintiff and other materials, the trial court concluded that the property was never entrusted with the 5th defendant by the plaintiff, that the documents produced by the parties corroborates the case of the defendants that they were in possession of the properties and cultivating the same. The trial court finally held that the entrustment of the property by the plaintiff with the 5th defendant as care taker has not been proved and the evidence adduced from the side of the defendant speak in volume that the defendants were in enjoyment and possession of the properties and there is nothing in evidence to prove that at any point of time they were out of possession of the plaint schedule property in pursuance of Ext. A1 sale deed. On the basis of the said finding the trial court dismissed the suit. 6. The matter was re-appreciated by the lower appellate court . After considering the entire evidence the lower appellate court pointed out that the suit being one filed for declaration of title and recovery of possession on the strength of title. The burden of the plaintiff would be taken to have been lawfully discharged, that the execution of the sale deed on the face of it does not appear to be sham or invalid is shown to R.S.A. 130 of 2009 -5- be executed in favour of the plaintiff and it shows that the document has taken effect and plaintiff obtained possession of the property thereunder, that though the plaintiff was not examined, her husband was examined as PW1 and that he stated that Pothen Chacko the vendor has lawfully executed Ext.A1. The lower appellate court also took into consideration PW1's version that it was unprofitable to come from long distance to take nominal yield from the property and subsequent to the dismissal of Ext. A5 suit when parties moved in cordial relationship and when 5th defendant started residence near the plaint schedule property , plaintiff entrusted the property to the 5th defendant as a care taker to effect tapping and it was the 5th defendant herself who also used to pay tax for the plaint item. Other circumstances were also examined, discussed and the explanations offered by PW1 with reference to the context were accepted by the lower appellate court. After analysing the available evidence as a whole the lower appellate court inferred that the plaintiff has succeeded in proving the due execution of Ext. A1 sale deed and all the incidents thereof whereas defendants who wanted to impeach that document by contending that it is either sham or fraudulent and that possession did not pass could not succeed in proving the same. It is also noted by the lower appellate court that the ingredients of adverse possession and efflux of the statutory period so as to perfect title are also not proved. In the circumstances the lower appellate court held as follows: R.S.A. 130 of 2009 -6- “ it can only be found that plaintiff has got title to the property and that the possession of defendants is only as a care taker as alleged and are bound to be evicted on the strength of title. As admittedly there are yielding rubber trees in the property, plaintiff is also entitled to mesne profits at the rate of Rs. 1000/- per annum from 1995 onwards. Thus it is a fit case to allow the appeal and to reverse the findings in tune with the prayers in the plaint.” 7. The finding arrived at by the lower appellate court are solely based on facts and the reversal of the findings entered by the trial court is in the right perspective. I do not find any reason to interfere with the factual findings entered by the lower appellate court in exercise of the jurisdiction conferred under Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 130 of 2009 ---------------------------- JUDGMENT 29th May, 2009