Shamsudheen.T.P vs Alavikutty
2021 Latest Caselaw 4813 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021/21ST MAGHA,1942

                    RSA.No.546 OF 2019

 AGAINST THE JUDGMENT IN AS 14/2016 DATED 09-11-2018 OF
        ADDITIONAL DISTRICT COURT - II, MANJERI

   OS 289/2011 DATED 16-11-2015 OF SUB COURT, MANJERI


APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3:
      1    SHAMSUDHEEN.T.P,
           AGED 62 YEARS,
           S/O.ABDURAHIMAN,
           THALEKODUPURATH VEEDU,
           PUNNAPALA.P.O.,
           PUNNAPALA AMSOM, CHATHANGOTTUPURAM DESOM,
           NILMBUR TALUK.

     2     NOUSHAD.T.P.,
           AGED 50 YEARS,
           S/O.ABDURAHIMAN,
           JASMIN MANZIL,
           PUNNAPALA.P.O.,
           PUNNAPALA AMSOM, CHATHANGOTTUPURAM DESOM,
           NILAMBUR TALUK.

     3     SHAKEEL AHAMMED.T.P.,
           AGED 45 YEARS,
           S/O.ABDURAHIMAN,
           JASMIN MANZIL,
           PUNNAPALA.P.O., PUNNAPALA AMSOM,
           CHATHANGOTTUPURAM DESOM, NILAMBUR TALUK.

           BY ADVS.
           SRI.VINOD RAVINDRANATH
           SMT.MEENA.A.
           SMT.M.R.MINI
           SRI.ASHWIN SATHYANATH
           SRI.ROHIT NANDAKUMAR
 R.S.A.No.546 of 2019


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RESPONDENTS/RESPONDENTS/PLAINTIFF & 4TH DEFENDANT:

       1      ALAVIKUTTY,
              AGED 72 YEARS,
              S/O.AHAMMEDKUTTY,
              THALEKODUPURATH VEEDU,
              PUNNAPALA.P.O.,
              PUNNAPALA AMSOM, CHATHANGOTTUPURAM DESOM,
              NILAMBUR TALUK, PIN - 679 330.

       2      KANNANGADAN ABDULLA,
              AGED 57 YEARS,
              S/O.KUTTIYALI PARAMMAL HOUSE, PUNNAPALA P.O.,
              PUNNAPALA AMSOM, CHATHANGOTTUPURAM DESOM,
              NILAMBUR TALUK, PIN- 679 330.

              R1 BY ADV. SRI.M.KRISHNAKUMAR

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 27-01-2021, THE COURT ON 10-02-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.546 of 2019


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                          JUDGMENT

Defendants 1 to 3 in O.S.No.289/2011 on the file of

the Sub Court, Manjeri (hereinafter referred to as the trial

court) are the appellants in this appeal. The plaintiff and

the 4th defendant are the respondents. The parties are

hereinafter referred to as the plaintiff and defendants

according to their status in the trial court unless otherwise

stated.

2. The suit is for permanent prohibitory injunction

and also for recovery of possession of plaint B schedule

property. The plaint A schedule property having an extent

of 1.27 acres of land originally belonged to one Assan

Moyin and others in 'kanam right' under landlord

Areeppurathu Mana. The rights of the landlord over the

property were purchased by the tenant under Section 72

of the Kerala Land Reforms Act and by a series of

transactions, the property ultimately devolved on the R.S.A.No.546 of 2019

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plaintiff. Alleging that the defendants attempted to

trespass into the plaint A schedule property, the plaintiff

filed the suit. The defendants 1 to 3 filed written

statement contending that the plaintiff has no manner of

title or possession over plaint A schedule properties.

3. An Advocate Commissioner was appointed to

identify the properties and accordingly the Commissioner

filed Commission Report and Plan before the trial court.

On the basis of the Commission Report, the plaint

schedule was amended seeking recovery of possession

with respect to plaint B schedule property.

4. On evaluation of the entire evidence, the trial

court held that the plaint A schedule property excluding

plaint B schedule property belongs to the plaintiff and he

is in possession of the same. Hence, the decree for

permanent prohibitory injunction with respect to plaint A

schedule property minus plaint B schedule property was

granted.

R.S.A.No.546 of 2019

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5. Heard the learned counsel for the appellants

Smt.Meena.A.

6. The learned counsel for the appellants

contended that the trial court and the appellate court went

wrong in holding that the plaintiff has properly identified

the plaint schedule property in accordance with his title

deed.

7. The trial court had taken into consideration

Exts.C1 to C4 particularly Ext.C3(a) plan and Ext.C3

report. The trial court had also taken into consideration

the oral testimony of PW1 and Exts.A1 to A3 documents.

Ext.A1 is the partition deed of the year 1948, by virtue of

which the property was obtained by Thalakodupurath

Assan Moyin, which was scheduled as item No.39 in the

said partition deed. After the death of said Assan Moyin, a

release deed was executed in favour of some of the

sharers in the year 1978 as per Ext.A2. Later, the plaintiff R.S.A.No.546 of 2019

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had purchased the property by virtue of Ext.A3 document.

Ext.A4 series are the tax receipts showing the possession

of the property with the plaintiff. The defendants 1 to 3

are admittedly the sons of PW1's brother. They are

claiming property based on patta No.4722/77. However,

their title is denied by the plaintiff.

8. The trial court has come to a conclusion that the

specific case pleaded by the plaintiff is probabilised by

Exts.A1 to A4 documents and Ext.C4(a) plan. Regarding

the B schedule property it remains with the 4th defendant

and no relief was granted by the trial court. Both the trial

court and appellate court concurrently held that the plaint

A schedule property is identifiable in accordance with

Ext.C4(a) plan. It was also held concurrently that the

absolute ownership and possession of the plaintiff over

plaint A schedule property excluding plaint B schedule

property is established. Accordingly, Ext.C4(a) plan R.S.A.No.546 of 2019

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formed part of the decree. The trial court granted

permanent prohibitory injunction restraining the

defendants from interfering with the possession of the

plaintiff over the property specifically shown in Ext.C4(a)

plan excluding plot DEFGD. The prayer for recovery of

possession with respect to plot DEFGD shown in orange

colour in Ext.C4(a) plan was declined. This is a clear

indication that the trial court granted a decree in respect

of a property which has been identified by the

Commissioner during the trial of the case. The said finding

has been confirmed by the first appellate court.

9. A second appeal is not a matter of right. A

second appeal only lies on a substantial question of law. If

statute confers a limited right of appeal, the Court cannot

expand the scope of the appeal. It is not open to the

appellants to re-agitate the facts or to call upon the High

Court to re-analyse or re-appreciate evidence in a second R.S.A.No.546 of 2019

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appeal. In a second appeal, the jurisdiction of the High

Court being confined to substantial question of law, a

finding of fact concurrently made by the two courts below

to the effect that the plaint schedule property is

identifiable is not open to challenge in second appeal. The

question mooted before this Court is not at all a question

of law, far less any substantial question of law involved in

this case. Hence, the R.S.A. is liable to be dismissed.

Resultantly, the R.S.A. is dismissed. There will be no

order as to costs. Pending applications, if any, stand

disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj