IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 SA.No. 82 of 1998(B) ---------------------------- [AS.NO.67/1995 OF SUB COURT, QUILANDY, OS.NO.81/1987 OF MUNSIFF-MAGISTRATE COURT, PERAMBARA] .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. CHANNAMGATTUMMAL KUNHIKANNAN, S/O. KUTTIEKKAN, 80 YEARS, KAYANNA AMSOM DESOM, KOILANDY TALUK, P.O, KAYANNA. 2. CHANNAMGATTUMMAL KALLIANI, D/O. KUNHIKANNAN, 35 YEARS, RESIDING AT MAPPARATH, ULLIYERI AMSOM DESOM, KOYILANDY TALUK, P.O. ORAVIL. 3. DO. JANAKY, D/O. KUNHIKANNAN, 30 YEARS, RESIDING AT THATTARAKANDY, KAVUMTHARA AMSOM DESOM, P.O. KAVIL, KOYILANDY TALUK. 4. DO. NARAYANI, D/O. KUNHIKANNAN, 27 YEARS, RESIDING AT KELOTH, VIYYUR AMSOM KOLLAM DESOM, P.O. KOLLAM, KOYILANDY TALUK. 5. CHANNAMGATTUMMAL DEVI, D/O. KUNHIKANNAN, 24 YEARS, RESIDING AT THAYANNARI, KOTTUR AMSOM, MOOLAD DESOM, KOYILANDY TALUK. 6. CHANNAMGATTUMMAL RADHA, D/O. KUNHIKANNAN, 21 YEARS, RESIDING AT KARANJABATH, KAYANNA AMSOM, CHERAKKAD DESOM, P.O. CHERAKKAD, KOYILANDY TALUK. BY ADVS. SRI.S.VIDYASAGAR, SRI.V.P.K.PANICKER, SRI.P.VISWANATHAN. S.A. NO. 82/1998-B: RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- KANATHANPOYIL GOPI, S/O. KUNHIRAMAN, 24 YEARS, KAYANNA AMSOM, KOYILANDY TALUK, P.O. KANAYYA BAZAAR. BY ADVS. SRI.P.K.SURESH KUMAR, SRI.K.P.SUDHEER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO. 82/1998-B: ORDER ON C.M.P. NO. 178/1998 IN S.A. NO. 82/1998-B DISMISSED 28/10/2010. SD/- HARUN-UL-RASHID, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 82 OF 1998 ------------------------------- DATED THIS THE 28TH DAY OF OCTOBER, 2010 JUDGMENT The substantial questions of law framed in the appeal are as follows: (1) Whether in the facts and circumstances of the case the lower appellate court was correct in coming to a conclusion and recording a finding discarding legal evidence and basing on wild observations and baseless presumptions? (2) Whether in the facts and circumstances of the case, the court below was legally correct in casting the burden of proof in a suit for injunction on the defendants? 2. The defendants in O.S.No.81/1987 on the file of the Munsiff-Magistrate's Court, Perambra are the appellants. The appeal is directed against the judgment and decree in A.S.No.67/95 on the file of the Sub Court, Quilandy. The suit was for permanent prohibitory injunction restraining the -2- S.A.No.82/98 defendants from trespassing upon the plaint schedule property. By the revised judgment dated 23/12/1994 the trial court dismissed the suit finding that the plaintiff has not succeeded in proving the possession over the plaint schedule property. In the appeal (A.S.No.67/95) preferred by the plaintiff the Lower appellate Court reversed the findings of the trial court and held that the plaintiff has proved the possession over the plaint schedule property. The Appellate Court set aside the judgment and decree passed by the trial court and decreed the suit for injunction. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 3. The suit property is having an extent of 7 cents comprised in R.S.No.88/1A. The plaintiff claimed to be in possession of the plaint schedule property. The plaintiff claimed title and possession by virtue of Ext.A3 deed dated 17/3/1987 executed by Chathu and others in favour of the plaintiff. The defendants filed written statement contending inter alia that the -3- S.A.No.82/98 plaintiff has no manner of right, title and possession over the plaint schedule property. The defendants also disputed the identity of the property. Originally the suit was dismissed by the learned Munsiff. Subsequently, in the appeal the Sub Court, Badakara directed the trial court to dispose of the suit afresh after deputing a Commissioner to identify the plaint schedule property. As per the remand order, the trial court deputed a Commissioner. The court, after considering the objections raised that there were some mistakes in the report and plan, remitted the report and plan to the Commissioner. Thereafter, the Commissioner submitted Exts.C5 and C6 report and plan. The parties also adduced additional evidence both oral and documentary, after remand. Admittedly the property lying on the immediate east of the plaint schedule property is in the possession of the defendants. Both the plaintiff and defendants claimed title on the strength of Exts.A3 and B1 deeds respectively executed by the very same person, who was holding the property. On the basis of the description of the boundaries and -4- S.A.No.82/98 on the basis of the identification done by the parties to the suit in the presence of the Commissioner, the Commissioner measured, identified and demarcated the plaint schedule property and the adjacent eastern property, which admittedly belongs to the defendants. The plaint schedule property is shown as plot A and the property on the eastern side is shown as plot B. The identification of the properties was made on the basis of the title deeds of the respective parties. The Commissioner found that plot A is having an extent of 6.25 cents and plot B 3.8 cents. As per the documents, the plaint schedule property and the adjacent eastern property are having an extent of 7 cents and 5 cents respectively. 4. The trial court as well as the Appellate Court accepted the Commissioner's report and held that the plaint schedule property is correctly identified and described by the Commissioner in Ext.C6 plan as plot A. The trial court as well as the Appellate Court considered the claims of the respective parties on merits. -5- S.A.No.82/98 Both the parties are claiming title and possession under a common vendor. The defendants case is that they obtained 5 cents of property from PW-1, who is the predecessor-in-interest of the plaintiff. The trial court considered the question as to whether the plaintiff is in possession of the plaint schedule property. After examining the description of the property shown in Exts.A3 and B1, considering the Commissioner's report, plan and other oral and documentary evidence, the trial court held that the plaintiff has not succeeded in proving the possession of the property and therefore the relief of injunction was declined. The Appellate Court on the very same set of facts, circumstances and evidence, reversed the findings of the trial court. The Appellate Court also considered the question of possession of the property with reference to the title deeds, namely, Exts.A3 and B1. The Appellate Court also found that the plaintiff and the lst defendant get portions of item No.3 in Ext.A1 and the assignor is also the same person. The Appellate Court also noted the fact that the Commissioner has shown Ext. B1 -6- S.A.No.82/98 property as plot B which is admittedly in the possession of the defendants. The court also noted the fact that the Commissioner has on measurement shown lessor extent of both Exts.A3 and B1 properties. Considering the oral and documentary evidence adduced in support of the respective contentions including Commissioner's report and plan, the Lower Appellate Court held that the plaintiff has succeeded in proving the possession over the plaint schedule property. The court below held that the evidence of PW1 and the documentary evidence adduced by the plaintiff satisfactorily shown the possession of the plaintiff. After assessing the whole evidence it set aside the judgment and decree of the lower court and held that the plot A in Ext.C6 is in the possession of the plaintiff and he is entitled to the relief as prayed for. The finding that the plaintiff is in possession of the plaint schedule property is a pure question of fact entered by the fact finding court. Therefore, the finding of facts recorded by the court below cannot be interfered in the second appeal filed under Section 100 of the -7- S.A.No.82/98 C.P.C. On a perusal of the judgment rendered by the Lower Appellate Court, I am of the view that the court rightly found that the plaintiff is in possession of plot A in Ext.C6 plan. There is slight difference in extent between the property shown as plaint schedule property and the property identified by the Commissioner in Ext.C6 plan. In the plaint the extent shown is 7 cents. The Commissioner identified the property, which is having 6.25 cents. 5. The learned Sub Judge in appeal instead of restricting the decree to plot A in Ext.C6 plan, granted injunction for the extent of 7 cents shown in the plaint, after finding that the plaintiff is in possession of only 6.25 cents identified as plot A in Ext.C6 plan. There is no justification for passing the decree for injunction as prayed for in the plaint. Therefore, slight modification of the decree and judgment passed by the court is necessitated. In the result, the judgment and decree passed by the Appellate Court is confirmed subject to the modification that the decree passed by the Lower Appellate Court is confined to plot A -8- S.A.No.82/98 in Ext.P6 plan. Second Appeal is disposed of with the above modification. The parties shall bear their respective costs. Ext.C6 plan shall form part of the decree. HARUN-UL-RASHID, Judge. kcv.