IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 RSA.No. 286 of 2010() --------------------- AS.53/2000 of PRL.SUB COURT, KOZHIKODE OS.251/1996 of PRL. MUNSIFF COURT KOZHIKODE-I .................... APPELLANTS/LEGAL HEIRS OF APPELLANT & PLAINTIFF: -------------------------------------------------------------------- 1. PADMINI, W/O.LATE VELAYUDHAN, VELARAKKAL HOUSE, P.O. ERAVANNUR,(VIA) 'NARIKUNI', KOZHIKODE. 2. SHEEJA, D/O. LATE VELAYUDHAN, VELARAKKAL HOUSE, P.O. ERAVANNUR,(VIA) 'NARIKUNI', KOZHIKODE. 3. SHAJU, S/O. LATE VELAYUDHAN, VELARAKKAL HOUSE, P.O. ERAVANNUR,(VIA) 'NARIKUNI', KOZHIKODE. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. VELLARIKKAL METHAL GOPALAN, S/O.ARIYAN, P.O. ERAVANNUR, (VIA) 'NARIKUNI', KOZHIKODE. 2. VELLARIKKAL METHAL MEENAKSHI, D/O.ARIYAN P.O. ERAVANNUR, (VIA) 'NARIKUNI', KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON 14/12/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.286 OF 2010 -------------------------------- Dated this the 14th day of December 2010 JUDGMENT The appellants are the legal heirs of the plaintiffs in a suit for injunction. Both the courts below have concurrently held the plaintiffs are not entitled to the decree sought for, and feeling aggrieved, the appeal is preferred. 2. The plaint property admittedly consists of two taks. The dispute between the parties was in respect of the second tak which was stated as lying to the north west of first tak, over which both parties claimed possession on the basis of their title. On the side of the plaintiff, PW1 and PW2 and Exts.A1 to A9, and for the defendants, DW1 and Exts.B1 to B4 were exhibited in evidence. Suit property and also that of the defendant on the basis of the title deeds produced by them had been identified through an advocate commissioner with the assistance of a taluk surveyor. The reports and plans prepared in execution of the commision order had been exhibited as Exts.C1 to C4 in the case. 3. In Ext.C4 plan, the commissioner identified the property in possession of the plaintiff as 'ABCDEFGHM' and that of the defendants as 'PONLKSQ'. In between these two properties there was another plot shown as 'MANL', admittedly, belonging to a third party. Parties to the suit claimed rival title and possession R.S.A No.286 OF 2010 - 2 - over the plot identified as 'KLMHIJ' situate to the north west of the plot identified as 'ABCDEFGHM', admittedly, in the possession of the plaintiff and to the south of and adjoining to 'PONLKSQ', admittedly in the possession of the defendants. The identification over the suit property, in respect of which the decree of injunction was claimed by the plaintiffs, by the advocate commissioner, was found to be not correct by both the courts below for various reasons, that it is not in tune with the measurements given in the plaint schedule and the title deeds of the plaintiff and also for the disparity over the survey numbers stated in the documents. Both the courts have also taken note the admission of the commissioner, who was examined as CW1, that she could not find the property with the measurements given in the plaint schedule and that the identification made in her plan does not take all the survey numbers mentioned in the plaint schedule. The commissioner had also given evidence that the entire extent of 1.04 acres described in the plaint schedule could not be located and identified as the area in the actual possession of the plaintiffs. The plot, 'KLMHIJ' over which both parties claimed rival possession was not even identified by the commissioner with reference to his survey and sub division number, was also taken R.S.A No.286 OF 2010 - 3 - note by both the courts to held that the identification of the plaint property was incorrect. However, basing on the identification of the plaint property by the advocate commissioner, which had been found to be incorrect by both the courts, the plaintiffs pursued their claim for a decree of injunction, and that being turned down by the trial court and also the lower appellate court, now, before this court as well by way of this appeal. 4. Before me also the learned counsel for the plaintiffs advanced arguments on the basis of Ext.C4 plan prepared by the advocate commissioner for a decree for injunction as canvassed for in the suit, but, without any challenge impeaching the correctness of the concurrent finding entered by both the courts below that the plaint schedule has not been properly identified by the advocate commissioner. Plaintiffs have possession over the disputed plaint property identified by the commissioner as 'KLMHIJ', and it lies contiguously with plot 'ABCDEFGHM' which was admittedly in their possession was the line of attack projected to show that the dismissal of the suit on the materials tendered in the case is liable to be set aside. I do not find any merit in the submissions made by the counsel to assail the concurrent decision rendered by the courts below that the R.S.A No.286 OF 2010 - 4 - plaintiffs are not entitled to the discretionary relief of injunction over the property scheduled in their suit. When the plaint schedule has not been properly identified with reference to the documents of title and survey records, plaintiffs could have sought for remitting the report and plan for identification of the property afresh through the advocate commissioner with the assistance of a qualified surveyor. However, the plaintiffs sought to sustain the relief canvassed on the identification made under Ext.C4 plan by the commissioner with no objection to the report and plan. When that be the case, on that solitary ground itself, the discretionary relief of injunction canvassed by them where the plaint schedule property has not been properly identified, could not be granted. Then also, perusing the judgments rendered by both the courts below, it is seen, the claim of possession made by the plaintiffs over the disputed plot identified by the commissioner as 'KLMHIJ' lacked any merit. There is a quarry in that plot, and through PW2, evidence was sought to be let in that with permission of the plaintiff he had cut and removed stones from that quarry. PW2 also gave evidence that there is an electric post in that plot from which he had drawn electric connection to his house. No electric post was pointed out tot he R.S.A No.286 OF 2010 - 5 - commissioner when local inspection was conducted over the property which was down twice, and in the reports also there is no reference to presence of an electric post. Plaintiff, when examined as PW1, had given evidence that in the disputed plot, the defendants had put up a shed and it was removed after intervention by the police on his complaint. No material was produced to substantiate such a case and the commissioner, who visited the plot immediately after the institution of the suit, did not find any remnants left behind by the removal of the shed, was also taken note by the Learned Munsiff to disbelieve the version of the plaintiff. Further the claim of plaintiff, as PW1, as to his cultivation over the disputed plot with tapioca plantation, was also found to be incorrect in the light of the report of the commissioner showing that the land is barren. Finding entered by the trial court that the identification made under Ext.C4 plan in respect of the plaint schedule was not correct and also that the claim of possession by the plaintiff over the disputed plot shown as 'KLMHIJ' under that plan by the plaintiff not acceptable, after reappreciation of the evidence has been confirmed by the lower appellate court dismissing the appeal preferred by the plaintiff. Concurrent finding entered by the courts below as such on the R.S.A No.286 OF 2010 - 6 - basis of the materials tendered in the case, it is seen, suffer from no infirmity, leave alone give raise to any question of law. The appeal does not involve any substantial question of law for consideration by this court, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE vdv