Court upheld trial findings on property possession based on evidence, dismissing the appeal for lack of substantive legal questions.

JUDGMENT

This appeal is by the defendant in a suit for permanent prohibitory injunction. The plaintiff sued the defendant for an injunction stating that the plaintiff’s possessory right over the property was being threatened by the defendant who had entered into an agreement of sale on 22.09.2003 with the plaintiff. The plaintiff further contends that he was ready to comply with the terms but due to the fault of the defendant, sustained huge loss and the said agreement expired on 22.03.2004 and the defendant is not entitled to get the sale deed executed pursuant to the said agreement.

1.1. The defendant entered appearance and contended that O.S.

No. 70 of 2007 is pending before the Sub Court, Nedumangad for injunction and also for specific performance of the agreement. It was further contended that the contention of the plaintiff that he is in possession of the plaint schedule property cannot be accepted since the defendant was put in possession in pursuance to the agreement of sale.

1.2. Before the Trial Court, Exts. A1 to A4 documents were marked on behalf of the plaintiff and PW1 to PW4 were examined. Ext. B1 was marked on behalf of the defendant and DW1 was examined. On appreciation of oral and documentary evidence, the Trial Court concluded that there was no evidence to show that in pursuance to Ext. A2 agreement of sale dated 22.09.2003 that the defendant was put in possession. Accordingly, the suit was decreed. Aggrieved, the defendant preferred A.S. No. 46 of 2010 which was dismissed by judgment dated 31.01.2005 and hence, the appeal.

2. Heard Sri. Atul Mathews, the learned Counsel for the appellant.

3. In this appeal, it is contention of the learned Counsel for the appellant that when the Advocate Commissioner visited the property, the defendant had opened the lock of the building in order to enable the Advocate Commissioner to inspect the property. If as contended by the plaintiff, if the plaintiff was in possession of the plaint schedule property, the defendant could not have opened the lock of the building for enabling the Advocate Commissioner to identify the property. According to the learned Counsel for the appellant, this aspect has not been considered properly by the Courts below. It is further pointed out that the suit for specific performance and injunction was decreed against which an appeal as RFA No. 549 of 2011 is pending consideration before this Court.

4. On consideration of the submissions raised across the Bar by the learned Counsel for the appellant, this Court is of the view that there is no substantial question of law arising for consideration in the present appeal. The case set up by the appellant is that he was put in possession in pursuance to the agreement of sale. Both the Courts have construed Ext. A1 agreement and found that there is no mention regarding the possession of the defendant over the plaint schedule property. As regards the plea that the defendant had opened the lock of the building for enabling the Advocate Commissioner to inspect the property, the Trial Court has found that based on a complaint lodged by the plaintiff, the Police had directed the defendant to keep the keys in custody till the issue is resolved. The mere fact that the appellant was entrusted with the keys of the building and he had opened it for the purpose of enabling the Advocate Commissioner to visit the property is no ground to hold that the plaintiff was divested off the possession of the plaint schedule property. The findings rendered by the Courts below are clearly based on appreciation of evidence which this Court does not find to be perverse.

5. Having said so, since O.S. No. 70 of 2007 is already decreed and that the same is pending in RFA No. 549 of 2011, it is made cl