JUDGMENT

This Regular Second Appeal arose from the judgment and decree dated 30.11.2007 in A.S.No.42 of 2007 passed by the VI- Additional District Court, Ernakulam. The plaintiff in O.S. No.150 of 2006 on the file of the Munsiff Court, Ernakulam, was the appellant in A.S.No.42 of 2007. The defendants were the respondents.

2. The defendants preferred this Second Appeal challenging the judgment of the First Appellate Court.

3. During the course of proceedings, appellant No.1 died.

Consequently his legal representatives were impleaded as additional appellants 3 to 5.

4. The facts giving rise to this appeal are as follows: The plaint schedule property is 23 cents of land (9 Ares 31 Square Meters) in Re-Sy.No.49/2 in block No.18 of Manakunnam Village. The plaint schedule property originally belonged to Late Sri.Thevan, the father of defendant No.1. Shri.Thevan alienated this property to Smt.Ambujakshi, who sold the same to Sri.K.V.Kuriakose as per sale deed No.592/1969. Sri.K.V.Kuriakose, executed Will No.38/1998 of SRO Tripunithura, by which the plaint schedule property was bequeathed in favour of his wife Thankamma Kuriakose. After the death of Sri.K.V.Kuriakose, Smt.Thankamma Kuriakose, acquired right in respect of the plaint schedule property. Smt.Thankamma Kuriakose sold the plaint schedule property to the plaintiff as per sale deed No.639/1/05 of SRO Tripunithura. The defendants attempted to trespass upon the plaint schedule property.

5. The defendants resisted the claim of the plaintiff, contending as follows:

The sale deed in favour of the plaintiff, in respect of the plaint schedule property, is a sham document. The plaintiff has not obtained title or possession over the property. The defendants have no intention to trespass upon the plaint schedule property. The plaintiff acquired title and possession over only 20 cents of property from the predecessors of the 1st defendant. The defendants are residents of a ‘Thuruthu’ wherein the plaint schedule property is situated. The plaintiff owns the remaining properties in the ‘Thuruthu’. Her attempt is to eject the defendants from the ‘Thuruthu’. Therefore, she has no cause of action to institute the suit.

6. During the trial, on the side of plaintiff, PWs 1 to 4 were examined and Exts.A1 to A8 were marked. DW1 was examined on the side of defendants.

7. After appreciating the rival contentions, based on the materials placed before the Court, the Trial Court recorded the following findings: (a) the plaintiff has established possession over the plaint schedule property (b) the plaintiff failed to establish the cause of action to seek relief of permanent prohibitory injunction against the defendants.

8. Based on the finding that the plaintiff failed to establish the cause of action pleaded against the defendants, the Trial Court dismissed the suit.

9. The plaintiff challenged the judgment and decree passed by the Trial Court in O.S. No.150/2006 before the District Court, Ernakulam in A.S. No.42/2007.

10. The First Appellate Court confirmed the finding of the Trial Court that the plaintiff has established possession over the plaint schedule property. The First Appellate Court reversed the finding of the Trial Court that the plaintiff failed to establish a cause of action against the defendants for seeking a relief of permanent prohibitory injunction. The First Appellate Court found that the plaintiff is entitled to the permanent prohibitory injunction as prayed for.

11. Aggrieved by the judgment dated 30.11.2007 in A.S.

No.42 of 2007 of the First Appellate Court, the defendants have approached this Court in this Second Appeal.

12. Heard Smt.C.G.Bindu, learned counsel appearing for the appellants and Sri.E.M.Joseph, the learned counsel appearing for the respondent.

13. After hearing both sides, I have reformulated the substantial questions of law as follows:

i) Whether the First Appellate Court misconstrued the evidence while holding that the plaintiff established the cause of action against the def