IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 SA.NO. 482 OF 2000(G) ------------------------------- AS.65/1997 OF SUB COURT, NEDUMANGAD OS.130/1994 OF ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S)V- RESPONDENTS - PLAINTIFFS: ---------------------------------------------------------------- 1. SADASIVAN NAIR, S/O. BALAKRISHNA PILLA VADAKKUMKARA PUTHENVEEDU, ALAIKKATTUKONAM, THEKKUMKARA MURI, KARUPPORU VILLAGE. 2. GOPINATHAN NAIR, S/O. DO. DO. DO. BY ADV. SRI.R.S.KALKURA RESPONDENT(S) - APPELLANT - DEFENDANT: -------------------------------------------------------------- M. JABBAR, SHAHAR MANZIL, ALIKKATTUKONAM, THEKKUMKARA MURI, KARUPPOORU VILLAGE. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 SRI.M.P.MADHAVANKUTTY FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.482 of 2000 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of February, 2009 J U D G M E N T ---------------------- The bone of contention between the parties hereto is a small strip of land measuring 2.732 cents in Sy.No.1570 in Karuppooru Village (as reported by the Advocate Commissioner in Ext.C2, plan) which is reported to be a road puramboke. Appellants originally claimed that they are the owners in possession of 12.5 cents of land comprised in R.S. No.1603/2 (Old Sy.No.2010) shown in revenue receipts as 11 cents (out of the 13 cents which belonged to them as per Will No.3/80 executed by Gowri Amma Lakshmikutty Amma and excluding a portion on its north surrendered for widening the road). They claimed that the respondent who is owning property on the south is attempting to interfere with their possession and laid the suit seeking a decree for prohibitory injunction and for damages alleging that the boundary fence was destroyed by the respondent. Respondent resisted the suit contending, inter alia, that appellants have no possession of the entire suit property as described in the plaint schedule and that they are claiming possession over a small strip of land comprised in Sy.No.1570 which is a puramboke land. He also claimed that he is in possession and enjoyment of that land and using S.A. No.482 of 2000 -: 2 :- it for his ingress and egress to the property belonging to him and made a counter claim in respect of that plot. The Advocate Commissioner who inspected the property reported that the plaint schedule description takes in 2.732 cents of road puramboke in Sy.No.1570. That portion is marked by the Advocate Commissioner in Ext.C2 in violet colour as MHIF. The portion marked in green colour admittedly belonged and is in the possession of the appellants. The portion marked in light red colour situated towards the southern side of the green shaded portion admittedly belonged to the respondent. After the Advocate Commissioner filed Exts.C1 and C2 (report and plan) plaint schedule was amended to state the extent of the property as 13.741 cents, also taking in Sy.No.1570 but of course the boundary descriptions remained the same as before. Learned Munsiff after considering the evidence found that the appellants are in possession of the suit property (including the disputed 2.732 cents of road puramboke in Sy.No.1570) and granted decree as prayed for. Counter claim was dismissed. Respondent took up the matter in appeal. Learned Sub Judge allowed the appeal and the suit was dismissed as the Government was not made a party to the suit and since appellants had no legal right to seek relief in respect of puramboke land. Dismissal of the counter claim was confirmed. Appellants/plaintiffs S.A. No.482 of 2000 -: 3 :- have come up in Second Appeal. 2. The substantial questions of law formulated for a decision are whether, the first appellate court was right in dismissing the suit for the reason of non-impleadment of the Government as party? and whether the finding of the first appellate court that the appellants had to prove ownership of the puramboke land to seek injunction is correct? 3. Learned counsel for appellants/plaintiffs contended that the first appellate court has proceeded on a wrong assumption of law and fact that appellants could not seek relief with respect to 2.732 cents of land comprised in Sy.No.1570 which is road puramboke without impleading the Government as a party to the suit and that appellants have no right to seek injunction in respect of that portion. According to learned counsel, first appellate court has not considered the evidence and decided whether appellants are in possession of the suit property. Learned counsel for the respondent/defendant contends that the judgment and decree of the first appellate court can be sustained since it has been found that the appellants have no possession of the disputed land and at any rate, since the appellants have come to court with unclean hands suppressing the fact that the disputed strip of land is road puramboke. Learned counsel contends S.A. No.482 of 2000 -: 4 :- that it is only towards the fag end of the evidence of P.W.1 that he admitted that the disputed portion is road puramboke. It is contended by the learned counsel that if a decree for injunction as prayed for by the appellants is granted, that would cut off the access to the property admittedly belonging to the respondent and on equitable consideration appellants are not entitled to any injunction. 4. The Apex Court in Ramavilasom Grandhasala v. N.S.S. Karayogam (ILR (2009) 1 Ker. 303) has pointed out that the second appellate court cannot interfere with the finding of fact unless the finding is perverse or is based on no evidence and that even in such a case, second appellate court shall not decide the appeal discarding the finding of fact but has to remand the case to the first appellate court for deciding the issue afresh. Learned counsel for the appellants would contend that in this case the finding entered by the first appellate court is perverse in that the first appellate court took the view that appellants have no legal right to claim injunction against the respondent in respect of the strip of land which is road puramboke and the first appellate court has also not taken into account the evidence let in by the appellants regarding possession of the disputed strip of land. 5. In the trial court second appellant gave evidence as P.W.1. S.A. No.482 of 2000 -: 5 :- P.W.2 is the vendor of the respondent. P.W.2 was examined to disprove the case of the respondent that he got possession of the disputed land at the time of assignment of the plot admittedly belonging to him as per Ext.B1 executed by P.W.2. P.W.2 did not support that claim of the respondent. P.W.3 is the adjoining owner who supported the case pleaded by the appellants and claimed that appellants are in possession of the entire suit property which includes the disputed road puramboke as well. P.W.3 would say that the road puramboke in front of his own land is in his possession. P.W.4 is the Advocate Commissioner who prepared Exts.C1 and C2. Respondent gave contra evidence as D.W.1. D.W.2 hails from the locality and supported the respondent but claimed that he is residing a kilometre away from the suit property. Learned Munsiff came to the conclusion that the appellants are in possession of the property including the disputed land and granted injunction. 6. I have gone through the judgment and decree of the first appellate court. It is seen from the judgment that in paragraph 12 the learned Sub Judge referred to the right of the appellants to claim relief with respect to the road puramboke and observed that they have no legal right to make such a claim without the Government on the party array. That view in my opinion is not S.A. No.482 of 2000 -: 6 :- correct since this is a suit for injunction simplicitor by the appellants claiming possession of the entire property including the disputed road puramboke and that relief is sought against his neighbour, the respondent and not against the Government. It is settled position of law that possessory title is next to proprietory title. Even in the case of Government land it is possible for the person in actual possession to seek protection of such possession as against all who do not have a better title than himself. It has been so held by this Court in Kuttan Narayanan v. Thomman Mathai (1966 KLT 1) and N.S.S. Ltd. v. Rev.Fr.Alexander (1968 KLT 182). The first appellate court has proceeded on a wrong assumption of law that appellants could not have sought relief in respect of the disputed road puramboke without the Government as a party. 7. So far as the question of possession is concerned it is seen from the judgment of the first appellate court that the evidence on record was not properly considered or appreciated. Instead, first appellate court proceeded on the assumption that the claim of the appellants regarding possession of the road puramboke is an after thought in so far as there is no mention in the plaint schedule about the appellants being in possession of the property comprised in Sy.No.1570. But I find from the plaint and schedule that though there S.A. No.482 of 2000 -: 7 :- is no specific mention about the survey number in which the road puramboke is situated, before and after the amendment of the plaint schedule incorporating that survey number also, the boundary descriptions of the property remained the same. Question is whether the appellants are in possession of the disputed portion within the boundary descriptions given in the plaint schedule. As pointed out by the learned counsel for the appellants, it is seen that the first appellate court has not considered the evidence let in by the parties regarding possession. 8. It is contended by learned counsel for the respondent that his right of access will be defeated if relief is granted with respect to the road puramboke. Learned counsel invited my attention to Exts.C1 and C2. That again is a matter to be decided by the first appellate court. This is a matter which of course the respondent can urge before the first appellate court and if so urged that court will consider that question as well. 9. In the light of the above discussion, the judgment and decree of the first appellate court cannot be sustained and are liable to set aside. In the light of the decision of the Apex Court referred to above, the matter has to go back to the first appellate court for consideration. S.A. No.482 of 2000 -: 8 :- Resultantly the appeal succeeds. Judgment and decree of the Sub Court, Nedumangad in A.S. No.65 of 1997 are set aside and the case is remanded to that court for fresh consideration and disposal as provided under law. First appellate court is directed to dispose of the appeal as expeditiously as possible at any rate, within three months from the date of receipt of a copy of this judgment. Registry is directed to send back the lower court records to that court. No costs. Parties are directed to appear before the first appellate court on 16.3.2009. Civil Miscellaneous Petition No.1290 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.482 OF 2000 =================== J U D G M E N T 16TH FEBRUARY, 2009