IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 SA.No. 251 of 1996(E) --------------------- AS.67/1992 of SUBORDINATE JUDGE'S COURT, KASARAGOD OS.195/1986 of PRINCIPAL MUNSIFF, KASARAGOD .................... APPELLANT(S)/RESPONDENTS/DEFENDANTS: -------------- 1. T.NARAYANAN 2. T.CHOYI AMBU 3. T.VELLACHI 4. T.KUNHIKANNAN 5. T.ANANDAN. NOS.1 TO 3 ARE CHILDREN OF KANNN, NOS.4 AND 5 ARE CHILDREN OF NO.3. ALL ARE RESIDING AT ADKATHIL HOUSE, VATTAMTHATTA OF BEDADKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.KUNDUKOCHI. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- T.NARAYANI AMMA, W/O.MALINGU NAIR, RESIDING AT CHALAKOL, VATTAMTHATTA OF BEDADKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O.KUNDUKOCHI. ADV. SRI.KODOTH SREEDHARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.251 of 1996 -------------------------------------- Dated this the 4th day of March, 2009. JUDGMENT Claiming title and possession of 1.50 acres in R.S.No.568/1 of Bedadka Village as per Ext.A1, sale deed dated 30.5.1983 executed by one Narayanan Nambiar and alleging that appellants/defendants who according to the respondent owned property on the western side of the suit property attempted to trespass into that property, respondent/plaintiff sued the appellants for a decree of prohibitory injunction. Respondent claimed that she has effected improvements in the said property by planting cashew plants and raising a portion of the property for construction of a house. Appellants denied title and possession of the respondent and her predecessors-in-interest. According to the appellants, suit property formed part of the 14.25 acres belonging to them as per Exts.B1 and B2. In the court below, the advocate commissioner inspected the property with the assistance of the Village Assistant and submitted report and plan - Exts.C1 and C1(a), respectively. Learned Munsiff found that there is no proper identification of the suit property and that respondent is not proved to be in possession thereof. Consequently the suit was dismissed. First appellate court however, placing reliance on the evidence of the first appellant/defendant No.1 (DW1) found that there is proper identification of the SA No.251/1996 2 suit property, circumstances indicated that respondent is in possession of the same and granted decree. The judgment and decree of the first appellate court are under challenge in this Second Appeal. 2. Substantial questions of law raised for a decision are:- (i) In a suit for injunction, is not the burden of proving possession of the suit property on the date of suit, on the plaintiff? If so has not the lower appellate court committed an error of law in casting the burden on the defendants. (ii) Is not the finding of the lower appellate court, that the plaintiff is in possession of the suit property, based on a wrong construction of Ext.A1 and Exts.C1 and C1(a)? (iii) Has not the lower appellate court committed an error of law in not taking note of the material portions of Exts.C1 and C1(a), while considering the question of possession of the suit property? SA No.251/1996 3 (iv) Is not the finding relating to the possession of the suit property entered by the lower appellate court against the admission of PW1 (respondent/plaintiff) the report , Ext.C1 and plan Ext.C1(a) submitted by the commissioner and the contents of Ext.A1. If so has not the lower appellate court committed an error of law in entering such finding. 3. It is contended by the learned counsel for appellants that there is no proper identification of the suit property with reference to Ext.A1, sale deed of the respondent and that the claims made by the respondent in the plaint and in her evidence as PW1 stand disproved by Ext.C1, report of the advocate commissioner. Learned counsel contended that even in the objection preferred by the respondent to Exts.C1 and C1(a), there is no challenge to the report of the advocate commissioner regarding the age of the improvements found in the property referred to in Ext.C1(a) as the suit property or, that the advocate commissioner failed to notice the house building put up by the respondent in that property. It is also pointed out by the learned counsel that it is for the first time in the objection to the commissioner's report that the respondent introduced a case that the water chal on the east of the property identified by the advocate commissioner was put up by the appellants immediately before the institution of the suit. According to the learned counsel, first appellate court has made heavy SA No.251/1996 4 reliance on an inadvertant mistake committed by the first appellant (DW1) in the course of cross examination which itself is proved to be incorrect on the facts of the case. Learned counsel for respondent in response contended that the first appellate court has considered the evidence on record and reached the conclusion, there is no error of law or, perverse appreciation of the evidence requiring interference in the Second Appeal. 4. This being a suit for injunction the court is concerned with the possession claimed by the respondent. She claimed title and possession as per Ext.A1, sale deed executed by Nayananan Nambiar . She examined PW2, son of Narayanan Nambiar who produced Ext.X1, gift deed as per which Narayanan Nambiar is said to have acquired right over a larger extent including the suit property which according to the respondent was conveyed to her as per Ext.A1. PW2 has stated that Ext.A1 executed by his father (Narayanan Nambiar) is concerning the property involved in this case. Respondent as PW1 also stated so. She stated that she has already put up a house in the suit property which she had pointed out to the advocate commissioner at the time of his inspection. But ofcourse, Ext.C1 does not make any mention of any such house. There is no reason to think that if such a house was there in the suit property at the time of inspection the commissioner would have omitted to notice that and mention SA No.251/1996 5 it in Ext.C1. But, for that reason alone, the case of the respondent regarding possession cannot be rejected. For, it is seen that the advocate commissioner inspected the suit property on 30.4.1989 while the respondent gave evidence as PW1 on 19.2.1992. Even according to the respondent (PW1), she is residing in the suit property for the last four years (of her examination on 19.2.1992). Therefore, it may be a mistake on the part of PW1 in claiming that the house was in existence at the time of inspection of the advocate commissioner or, her statement was not correct or could even be an exaggeration. It may be that the house was put up after inspection by the advocate commissioner. Respondent has stated in the plaint that she raised a portion of the suit property for construction of a house. That raised portion was noted by the advocate commissioner also in Ext.C1. Therefore, it is not as if the respondent came with an altogether false case of putting up a house in the suit property at the time of her evidence or, the property she referred to as belonging to her and covered by Ext.A1 being something other than the suit property. 5. As regards the improvements found in the suit property, respondent stated in the plaint that the cashew plants are aged 1 ½ - 40 years but, the advocate commissioner noted the age of the cashew plants as 7 - 10 years. No objection has been preferred by the respondent to the age of the SA No.251/1996 6 cashew plants reported by the commissioner and hence, the age noted by the advocate commissioner though approximate, has to be accepted. Even there, one has to bear-in-mind that respondent was stating about the age of the cashew plants as on the date of the institution of the suit in the year 1986 as 1½ - 40 years and the advocate commissioner inspected the property on 30.4.1989 ie., after three years. Therefore, the age of the some of the cashew plants reported by the advocate commissioner as around seven years almost tallied with the case set up by the respondent (3 + 1 ½ years) though, not to the extend of the respondent describing the maximum age of the cashew plants as 40 years. The advocate commissioner noticed a jack fruit tree in the suit property having the oldness stated by the respondent in the plaint. 6. So far as the identification of the suit property is concerned, it is seen from Ext.C1 that the advocate commissioner identified it with the help of both parties who were present and with the help of the Village Assistant who had brought the FMB also. There is no reason to think the FMB brought by the Village Assistant was not made use of for identification and, it is pertinent to note that the appellants did not challenge the identification of the property by the advocate commissioner as shown in Ext.C1(a) [in Ext.C1(a), the suit property is shown as plot 568/1A ]. SA No.251/1996 7 7. So far as the northern boundary of the suit property is concerned, there is no dispute between the parties. Though in the plaint schedule respondent had given a different description, the northern boundary reported by the advocate commissioner tallied with the northern boundary described in Ext.A1. The southern boundary also tallied. Appellants have no claim over any property on the east of the suit property. In effect, the dispute is only regarding the western boundary of the suit property. I do not forget that the advocate commissioner has reported in paragraph 6 of Ext.C1 that the western and eastern boundaries are reported by him as shown by the respondent and that so far as the western boundary is concerned the advocate commissioner was not able to find any boundary mark. But the commissioner has shown the measurement of the western boundary of the suit property as '670' and when the first appellant (DW1) was in the box, Ext.C1(a) was handed over to him. He admitted that the eastern boundary line of the property belonging to him is the (western) boundary line (670) of the suit property. True, he also referred to a stone wall on that boundary line and claimed that he has no property on the east of that stone wall but concededly, there is no such stone wall on that boundary line. To that extent a mistake is committed by the first appellant (DW1). But he admitted that the appellants do not possess or own any land on the east of the said boundary line (western boundary line of the suit property) as SA No.251/1996 8 shown by the advocate commissioner. That statement remains. That, taken along with the statement in Ext.C1 that the suit property was identified with the help of both sides and the Village Assistant who was present with FMB give sufficient indication that the plot marked as 568/1A in Ext.C1(a) is the suit property over which the respondent claimed title and possession as per Ext.A1. That precisely is what the appellate court accepted. 8. So far as the claim of possession is concerned, respondent produced Ext.A4 series, receipts for payment of revenue after she acquired the property while appellants rest contented by merely producing Exts.B1 and B2 . I referred to the evidence of DW1 that appellants do not own or possess any land east of the western boundary line shown by the advocate commissioner in Ext.C1(a). I also referred to the case of the respondent about the improvements in the suit property and her raising a portion of that property for the purpose of house construction which stands corroborated by Ext.C1. It is in these circumstances that the first appellate court concluded that respondent is in possession of the suit property. It is not a case of there being no evidence or, any perverse appreciation of evidence requiring interference in the Second Appeal. As such the contention raised by the appellants cannot succeed. (Since SA No.251/1996 9 the depositions of the witnesses do not form part of the case records, I have made use of the photocopy of the depositions made available by the counsel for the appellants). 10. No other point is raised for consideration. Resultantly, the Second Appeal fails. It is dismissed. No costs. C.M.P.No.631 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.251/1996 10 Thomas P.Joseph, J. S.A.No.251 of 1996 JUDGMENT 4th March, 2009.