IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 SA.No. 89 of 1997(B) -------------------- AS.70/1995 of SUB COURT, OTTAPPALAM OS.50/1990 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANT/RESPONDENT/DEFENDANT: ------------------------------------------- SOOPI, AGED ABOUT 66 YEARS, S/O.THORAKKATTIL MOIDU, EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK. BY ADV. MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE MR.KODOTH PUSHPARAJAN MS.PRABHA R.MENON MR.M.KRISHNAKUMAR (MOHANKUMAR ASSOCIATES) RESPONDENT/APPELLANT/PLAINTIFF: ----------------------------------------- AMINA UMMA, AGED ABOUT 47 YEARS, D/O.THORAKKATTIL MAMMASSAN HAJI, EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK. ADV. MR.H.SIVARAMAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 89 of 1997(B) ORDER ON C.M.P.NOS.210/97, 1626/97, 1996/97 & 2070/97 & I.A.NO.847/2006 DISMISSED. 21.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.89 Of 1997 ---------------------- Dated this the 21st day of June, 2010. J U D G M E N T The defendant in O.S.No.50 of 1990 on the file of the Munsiff-Magistrate Court, Mannarkkad is the appellant. Suit for perpetual injunction was dismissed by the trial court and reversed in appeal. The lower appellate court passed a decree restraining the defendant and his men from trespassing upon the plaint B schedule property, commit any mischief or pluck the arecanuts in the property. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaintiff is claiming right and possession over the plaint schedule properties on the basis of Exts.A1 and A3. Ext.A1 sale deed stands in the name of plaintiff and her sister Pathumma. According to the plaintiff the disputed plaint B schedule property is part of plaint A schedule property. The survey numbers of plaint A schedule property is 294/1 and 294/2. The survey number of plaint B schedule property is 294/3. Plaintiff and her sister obtained Ext.A2 purchase certificate for the property covered by Ext.A1. Plaintiff’s sister had released her rights over the property in favour of the plaintiff by Ext.A3 release deed. S.A.No.89 Of 1997 ::2:: Learned counsel for the appellant/defendant contended that the disputed plaint B schedule property was the jenm property of Thorakkattil Ahammed Haji and on the basis of oral lease deed plaint B schedule property is outstanding with the defendant. The property lying on the south of plaint B schedule property was purchased by the defendant vide Ext.B1 sale deed. The extent of property is 64 cents. The same extent is shown by the commissioner in Ext.C1 plan. It is the case of both sides that plaint A & B schedule and 64 cents admittedly belonging to the defendants are lying under three different taks. The lower appellate court based on evidence and commissioner’s report found that the nature of the 64 cents is different from plaint B schedule property. Learned counsel for the appellant submitted that the appellate court discarded the evidence adduced by the defendant and wrongly held that the defendant failed to prove that himself or his predecessor-in-interest had acquired any right or possession over the disputed property on the basis of Exts.B2 to B4. The lower appellate court appreciated and discussed the evidence adduced by the defendant and held that it is difficult to hold that defendant is in possession of the property whereas the appellant has title and he is in possession of the property. S.A.No.89 Of 1997 ::3:: 3. Learned counsel for the appellant submitted that the lower appellate court instead of examining the evidence adduced by the plaintiff in support of her case of possession of plaint B schedule property discussed the evidence adduced by the defendant and held that the defendant failed to prove possession over the disputed property. According to the learned counsel approach of the lower appellate court is wrong. Suit was filed for injunction. The question to be decided is whether the plaintiff has proved possession of the plaint schedule property. Learned counsel for the appellant submitted that the lower appellate court failed to consider the facts reported by the commissioner; that in paragraph 7 the commissioner has reported that the property over which the plaintiff has title has taken in plaint A schedule property shown in the plaint. Commissioner reported that the green shaded portion is the property covered by the title deed of the plaintiff. According to the commissioner 30 cents of land comprised in 294/3 is not the part and parcel of the property belonging to the plaintiff covered by her title deed. The learned counsel also brought to this Court’s notice that Ext.B2 tax receipts dated 1.12.1960 and submitted that Ext.B2 series would show that the defendant is paying revenue tax in respect of S.A.No.89 Of 1997 ::4:: Survey No.294/3 for the last several decades prior to the filing of the suit. The learned counsel also pointed out that Ext.A4 series produced by the plaintiff shows that he is paying tax only after filing of the suit. Since these material evidence are not examined by the lower appellate court and further that the question whether the plaintiff adduced sufficient evidence to prove possession over the disputed 30 cents the matter requires reconsideration by the lower appellate court. The lower appellate shall re-appreciate the evidence on the basis of the commissioner’s report and the oral and documentary evidence adduced by both sides. In the result, the appeal is partly allowed. The judgment and decree passed by the lower appellate court is set aside. The lower appellate court is directed to reconsider the case afresh after issuing notice to both sides. The appellate court shall dispose of the appeal within 9 months from the date of receipt of a copy of this judgment. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-