IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 318 of 2009()
1. KRISHNA PILLAI SREEKANTAN NAIR,
... Petitioner
Vs
1. ISREAL,S/O.JOSEPH,AGED 85 YEARS,
... Respondent
2. ISREAL WILFRED,S/O.ISREAL,AGED 48 YEARS,
For Petitioner :SRI.D.SAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :25/03/2009
O R D E R
K.P.BALACHANDRAN, J.
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R. S. A. No.318 of 2009
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Dated this the 25th day of March, 2009
JUDGMENT
This is appeal arising out of O.S.214/07
on the file of the Munsiff’s Court,
Neyyattinkara. Defendant is the appellant and
the plaintiffs are the respondents. What is
assailed is concurrent decree passed by the
courts below declaring title of the
respondents over plaint ‘B’ schedule building
and directing the appellant/defendant to
surrender vacant possession of the scheduled
building within 60 days from the date of the
decree passed by the trial court. Though the
respondents claimed that ‘B’ schedule building
constructed in ‘A’ schedule property was let
out by them to the appellant/defendant, as
tenancy arrangement was not proved, the court
below found against the rental arrangement
alleged by the respondents. Mesne profits also
R. S. A. No.318 of 2009 -2-
was not decreed as no evidence was adduced as
regards the mesne profits derivable from the
‘B’ schedule building.
2. On the pleadings of the parties, the
trial court had raised necessary issues for
trial and considering the case in the light of
the evidence adduced at trial which consisted
of oral evidence of PW1 and DW1 and
documentary evidence Exts.A1 to A5 and Exts.B1
to B10 as also Ext.C1 and C1(a) decreed the
suit O.S.214/07 and the suit O.S.34/07 filed
by the appellant as plaintiff which was
jointly tried along with O.S.214/07 was
allowed in part granting a decree restraining
the respondents from causing damage to the
shop rooms and from dispossessing the
plaintiffs otherwise than in due process of
law and in execution of the decree in
O.S.214/07 which was disposed of by the
common judgment.
R. S. A. No.318 of 2009 -3-
3. Against the decrees both in O.S.214/07
and O.S.34/07 the present appellant filed
first appeal before the first appellate court
respectively as A.S.82/08 and A.S.83/08 and
both the appeals were dismissed and hence,
this RSA against the concurrent verdicts in
O.S.214/07.
4. It is vehemently contended before me
by the learned counsel for the appellant that
decrees passed concurrently by the courts
below declaring title of the respondent/
plaintiffs over ‘B’ schedule building is
incorrect and that recovery of possession of
the building should not have been allowed by
the courts below. The contention of the
appellant is that the shop room with old door
No.263/2 and present Door No.35/3 with one
room had been in possession of the defendant
for a long time; that he has obtained
permission from the Panchayath to conduct a
R. S. A. No.318 of 2009 -4-
stationary shop under the name and style
“Krishna Traders” that either over the shop
rooms or over the land, the plaintiffs never
had any right and the suit is a counter blast
to O.S.34/07 filed by the appellant; that the
plaintiffs have no title or possession over
the plaint schedule property; that the shop
room is not constructed by the first plaintiff
and there was no tenancy arrangement and there
was no agreement to pay rent of Rs.250/- per
month; that the plaintiffs have won over the
Panchayath authorities and managed to change
the door numbers; that no declaration or
injunction can be given; that earlier
O.S.922/03 was pending with respect to plaint
‘A’ schedule property with Indira Bai Ananda
Kumari as plaintiff and the present plaintiffs
as defendants 1 and 2; that in the written
statement filed in that suit the present
plaintiffs never contended on the basis of the
R. S. A. No.318 of 2009 -5-
present documents; that as per the plan in
that case ‘B’ schedule shop room is not inside
the plaint ‘A’ schedule property; that even if
plaintiffs ever had any right over plaint ‘B’
schedule shop building, the same has been lost
by open, hostile, continuous and assertive
possession and enjoyment of the plaint ‘B’
schedule shop rooms by the defendants.
5. The learned counsel for the appellant
further submits that the respondents have not
produced any document to prove title over ‘B’
schedule building; that the building stands in
a Puramboke land which belongs to the
Panchayath and that the predecessor of the
appellant was obtaining permission from the
Panchayath and constructing a building and was
conducting business therein and that the
building does not belong to the respondents.
6. Evidence in the case was being
recorded by the trial court treating O.S.34/07
R. S. A. No.318 of 2009 -6-
filed by the appellant as the leading case and
the documents produced on the side of the
appellant are Exts.A1 to A5. Ext.A1 is the
licence issued from the Parassala Grama
Panchayath dt.30/01/06 and Ext.A2 is the
building tax receipt dt.28/01/06 both
immediately preceding institution of the suit.
The other documents produced are Exts.A3 to A5
which are respectively a membership
certificate, a true photo copy of the re-
survey plan and the extract of the building
tax register. The above documents are quite
insufficient to establish the contentions now
advanced before me that obtaining permission
from the Panchayath, a building was put up by
the predecessor in interest of the appellant
and shop was being conducted in the said rooms
by his predecessor and thereafter by the
appellants. The contention in the written
statement also is that the building had been
R. S. A. No.318 of 2009 -7-
in possession of the defendant for long and he
obtained permission from the Panchayath to
conduct a stationary shop under the name and
style “Krishna Traders”. The respondents
produced Ext.B1 sale deed executed in favour
of the first respondent/first plaintiff by
Nalla Thampi Manas on 14/02/61 assigning ‘A’
schedule property to him. The case of the
plaintiffs is that ‘B’ Schedule building is
put up by them in ‘A’ schedule property.
Ext.B5 series are building tax receipts and
Exts.B6 and B6(a) are true photostat copies of
assessment register from Parassala Grama
Panchayath showing assessment of the building
in the name of the plaintiffs. Ext.B7 is tax
receipt and Exts.B7(a), B8 and B8(a) are
building tax receipts in relation to the
scheduled building. It is considering the oral
as well as documentary evidence adduced on
both sides that the courts below have come to
R. S. A. No.318 of 2009 -8-
the conclusion that respondents/ plaintiffs
have title over ‘B’ schedule building and it
is therefore, that recovery of possession was
granted in favour of the respondents
concurrently by the courts below. There is no
merit in this RSA and there is no question of
law and much less any substantial question of
law arising for consideration in this RSA by
this Court on the contentions set up in the
Written Statement and the arguments advanced
before me. Substantial question of law
attempted to be formulated in the appeal
memorandum are not questions of law and much
less any substantial question of law. This RSA
in the circumstances, is devoid of merit and
is dismissed in limine.
K.P.BALACHANDRAN,
JUDGE
kns/-