IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 983 of 2008()
1. ABDUL SAMAD, S/O. ABDURAHIMAN
... Petitioner
2. ABDUL LATHEEF DO.....DO.....
3. ABDUL GAFFOOR, DO...DO....
4. LIYAKKATHALI, DO....DO....
5. AYISHUMMA, DO....DO....
6. NOORJAHAR DO....DO.....
7. BRIYA HAJJUMMA,W/O. ABDURAHIMAN
Vs
1. PATHUMMA, D/O. KIZHAKKE PEEDIKAYIL
... Respondent
For Petitioner :SRI.T.KRISHNANUNNI (SR)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/10/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.983 of 2008
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Dated this the 6th day of October, 2009
J U D G M E N T
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Appellants-defendants who were unsuccessful in the courts
below in defending the suit for decree for prohibitory injunction based
on possession have preferred this Second Appeal urging as a
substantial question of law whether in the absence of measurement of
disputed property with reference to title deeds and declaration of title,
courts below were legally correct in finding possession of the disputed
property in favour of respondent?
2. Property schedule in the plaint is Kaikkottu Thodika Nilam
and Tank which according to the respondent originally belonged to
Venkita Hassan, father of plaintiff No.1 as per Ext.A1, partition deed
No.1300/1969 and on his death it devolved on his wife and children
(respondent, plaintiff No.1 and others). Right of other legal heirs were
purchased by respondent and plaintiff No.1 as per Ext.A2, document
No.1737/1976. Respondent and plaintiff No.1 claimed that they are in
possession of the suit property and produced Ext.A3 series, receipts for
payment of revenue. During the pendency of the suit plaintiff No.1
died. Appellants contended that respondent, plaintiff No.1 or their
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predecessor had no right, right and interest over the property and that
the Tank referred to in the plaint schedule is situated in R.S. No.25/3
and not R.S. No.19/1 in which respondent and deceased plaintiff No.1
claiming right, title, interest and possession. They contended that the
Tank and property on its north, south and west belonged to Alikutthy,
their brother as per document No.1292 of 1958 and partition deed
No.2760 of 1964. Tank with the land was allotted to the share of
appellants. Learned munsiff observed that there is no payment of
court fee under Section 27(a) of the Court Fees Act and hence an
enquiry into title is not required. Learned munsiff found that
respondent and deceased plaintiff No.1 were in possession of the suit
property on the date of suit and granted decree as prayed for. First
appellate court has concurred with the finding of learned munsiff.
Contention of learned Senior counsel is that in a case of this nature
principle that possession follows title has to be adopted. In this case
trial court found on evidence that possession of suit property which is
a Tank is with the respondent and deceased plaintiff No.1. Exhibit A1
is the partition deed No.1300 of 1969 as per which according to the
respondent and deceased plaintiff No.1, their predecessor got title
and possession over the suit property. In Ext.A1, A schedule is
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allotted to the predecessor of respondent and deceased plaintiff No.1
and property is described as Kaikkottu Thodika Nilam, Tank and other
improvements. It is said to be in 52 cents in R.S. No.19/1 lying in
two taks. Same description is given in Ext.A2, document in favour of
respondent and deceased plaintiff No.1 executed by other legal heirs
of Venkata Hassan. Item No.4 in Exhibit A2 is the suit property.
Description in the plaint schedule is in accordance with Exts.A1 and
A2. Western boundary of suit property is Nariyan Chola Parambu
which is now in the possession of appellants. Commissioner found that
the disputed Tank is situated in Kaikkottu Thodika Nilam and that
Nariyan Chola Parambu which admittedly belong to appellants is
situated on a higher level and between two properties, there is a ridge
having sufficient width which is used by the public. Commissioner
also found another Tank in the suit property but trial court found that it
is not a Tank but only a small pit. Further finding entered by the
courts below on evidence is that in the Paramba belonging to
appellants they have constructed a Tank which is 10 metres away
from the disputed Tank in the suit property. Courts below observed
that if really appellants were using the disputed Tank there was no
necessity for them to construct a separate Tank which is 10 metres
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away from the disputed Tank. Courts below also found that the
physical boundary separating the property belonging to respondent
and deceased plaintiff No.1 and Nariyan Chola Pramba belonging to
appellants is the ridge. It is true that Commissioner noticed a canal
towards east of the disputed Tank but appellants have no case that the
said canal is their eastern boundary. It has come in evidence that in
the documents of title of appellants (Exts.B1 to B3) there is no
mention about the Tank. On the other hand, Exts.A1 and A2 relied on
by respondent and deceased plaintiff No.1 refer to the Kaikkottu
Thodika Nilam and Tank. Suit property is Nilam as seen from the
report of Commissioner. As per Exts.B1 to B3, property of appellants is
“Paramba”. It is in the above circumstances that trial court found that
possession of the suit property is with respondent and deceased
plaintiff No.1 as on the date of suit. First appellate court concurred
with that finding after consideration of the evidence. Finding of
courts below rests on a proper appreciation of the evidence on record.
This Court can interfere with the finding of fact entered by the first
appellate court which concurred with the finding of trial court only
when the finding is not supported by any evidence or the finding is
perverse. Neither of that situation arises in this case. As such the
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substantial question of law raised by appellants do not really arise for
consideration. Second Appeal is without merit and it is only to be
dismissed.
Second Appeal is dismissed in limine.
THOMAS P.JOSEPH, JUDGE.
vsv