Damodara Karnavar vs Sivarama Karnavar

Justice Thomas P. Joseph

This appeal is brought by the defendant in O.S. No. 211 of 1991 of Munsiff''s Court, Adoor. That is a suit filed by the respondent for a decree for prohibitory injunction against trespass, destroying the boundaries and interfering with the possession claimed by the respondent in the suit property, described as 33 cents. According to the respondent, 1.27 acres in Survey No. 550/11 belonged to Kochukunju Kurup. The said property was partitioned as per Ext.A1, deed No. 5152 of 1957 among the children of the said Kochukunju Kurupu. Accordingly each got 31 cents. Item No. 4 of Ext.A1, 31 cents was allotted to the share of Chellappa Karanavar, the brother of the appellant and the respondent who was not heard of during that time. It was provided in Ext.A1 that until death of the father, he was to manage item No. 4 allotted to Chellappa Karanavar and after his death, the management would west in the respondent. After the death of the father, respondent took possession of item No. 4 of Ext.A1 as the whereabouts of Chellappa Karanavar were not known. While so, the appellant trespassed into a portion of said property. Respondent filed O.S. 167 of 1967 and obtained a decree for recovery of possession of 17 cents. Ext. B1 is the copy of judgment. Respondent filed execution petition. There was a settlement between the appellant and the respondent. As per that settlement, the 31 cents allotted to Chellappa Karanavar as item No. 4 of Ext.A1 and 1 cents (excluding the 30 cents assigned by respondent/plaintiff) from his 31 each, together making up 33 cents was put in the possession of the respondent. Now, appellant is attempting to trespass.

Appellant contended that Chellappa Karanavar is not heard of for several years and hence is to be presumed dead. Hence Item No. 4 of Ext.A1 is to be partitioned among the legal heirs appellant being one of them. He therefore, is a co-owner of the 31 cents allotted to Chellappa Karanavar. He denied that possession of the 33 cents was given to the respondent. He claimed to be in possession of the said property.

The trial court found in favour of possession claimed by the respondent and granted a decree. It was observed that since the suit is based on possession alone, the question whether appellant has got any title over the property is not required to be gone into.

Appellant challenged that judgment and decree in the Additional District Court, Pathamthitta in A.S. No. 31 of 1994. The appeal was dismissed. Hence this second appeal.

The learned counsel contends that it is merely based on Exts.A4 and X1 to X3 and the evidence of Pws. 2 and 4 that the trial and first appellate courts held that the suit property is in the possession of the respondent. The learned counsel submits that neither Ext.A4 nor Exts.X1 to X3 mention that possession of the suit property was given to the respondent. The finding in Ext. B1 judgment in O.S. No. 167 of 1967 that appellant is in possession of the property has to stand until possession is recovered by the respondent in accordance with the due process of law. The learned counsel also argued that no reference could be made to Exts.C1 to C3 since it was an ex-prate commission without notice to the appellant and Exts.C1 to C3 were marked without examining the Advocate Commissioner.

It is not shown that at the time Exts.C1 to C3 were marked, any objection was raised to its admissibility without examining the Advocate Commissioner. Moreover, the trial and first appellate court have not placed much reliance on Exts.C1 to C3.

Respondent has given evidence of PW1 that pursuant to the compromise in the course of execution of the decree in O.S. No. 167 of 1967, he got possession of the suit property. The learned counsel has given me a copy of Exts.A4 and Exts.X1 to X3. Exts. X1 and X2 are copy of minutes of the local N.S.S, Karayogam and Ext.X3 is the copy of an agreement executed by the appellant and the respondent in favour of the President of that Karayogam. True, on going through Exts.X1 to X3, I do not find any recital that possession of the property was given to the respondent.

Ext.A4 is only a copy of memo filed by the respondent in execution of the decree in O.S No. 167 of 1967 that the matter is settled between the parties.

Thus, the fact that there was a settlement between the appellant and respondent in the course of execution of the decree in O.S 167/1967 is revealed from Exts.A5 and X1 to X3 and also the evidence of Pws. 2 and 4. Then the next question is, what exactly was that statement? Respondent has given evidence as PW1 that pursuant to the settlement he got possession of the suit property. True, contra evidence is given by the appellant as DW1. But what else is the settlement revealed by Ext.A4 Exts.X1 to X3 is not disclosed by the appellant. There is no reason to think that if there was no such settlement as pleaded by the respondent, he would give up executing the decree he got in O.S. No. 167 of 1967 and go for another suit falsely alleging that in the settlement he got possession of the suit property. Appellant did not also produce any document to show that he continued to be in possession of the suit property even as on the date of the present suit. I must also notice that as per Ext.A1, after the death of the father and until Chellappa Karanavar returns, his 31 cents (Item No. 4 of Ext.A1) is to be possessed and managed by the respondent. PW3 is the daughter of Chellappa Karanavar examined by the respondent. She also has supported the version of the respondent. Based on the above evidence and circumstances the trial court has held that the respondent got possession of the property otherwise than by execution of decree in O.S. No. 167 of 1967 (i.e., as per the settlement). That has been confirmed by the first appellate court.

The finding entered by the courts below on the possession of the respondent is one of fact. The finding of fact entered by the trial court and confirmed by the first appellate court could be interfered with by the High Court in second appeal only when the finding is perverse, is not supported by any evidence or is against the evidence. Even a mere erroneous finding of fact is not required to be interfered within second appeal. I am also to notice that first appellate court has left open the claim of title made by the appellant over the share of Chellappa Karanavar. In that view of the matter, I do not find any substantial question of law involved in this second appeal.

This second appeal is dismissed.