IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 SA.No. 798 of 1996(C) --------------------- AS.15/1994 of SUB COURT, QUILANDY OS.107/1989 of MUNSIFF COURT, QUILANDY .................... PLAINTIFF/RESPONDENT/APPELLANT: ---------------------------------------------------------- THUMBAPPURATHU UMMERKUTTY, ARIKKULAM AMSOM, OORALLUR DESOM, KOYILANDY TALUK. BY ADV. SRI.R.PARTHASARATHY DEFENDANTS/APPELLANTS/RESPONDENTS: ------------------------------------------------------------------ 1. THUMBAPPURATH KUNHIETHUKUTTY, ARIKKULAM AMSOM, OORALLUR DESOM, KOYILANDY TALUK. 2. VADAKKE THUMBAPPURATH AMMATH KANHIRAMULLA PARAMBIL, ARIKKULAM AMSOM, OORALLUR DESOM, KOYILANDY TALUK. R1 BY ADVS. SRI.V.V.ASOKAN, SRI.K.I.MAYANKUTTY MATHER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/012011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.1683/1996 IN SA.NO.798/1996 DISMISSED 12/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------------------- SA No.798 of 1996-C ------------------------------------- Dated this the 12th day of January 2011 Judgment The plaintiff in OS No.107/89 before the Munsiff's court, Quilandy, who was non-suited by the lower appellate court, is the appellant. 2. The plaintiff claims to have obtained the plaint schedule property along with other items of properties as per Ext.A1 partition deed dated 10.11.1950. He resides in a house situated in the said property. The defendants own property on the northern side of the plaintiff's property. According to the plaintiff, there is no definite demarcating boundary to separate the suit properties. On the northern side of the property, there are certain trees, including tamarind trees. When the defendants raised objections to his taking the usufructs from those trees, the plaintiff had his property measured by the Taluk Surveyor and it was found that the tamarind trees are located within his SA 798/96-C 2 property. It is stated that the defendants tried to trespass into the suit property. Hence the suit. 3. The defendants resisted the suit. The defendants admitted the fact the plaint schedule property and the property in their possession are lying at a higher level as stated in the plaint. But, they contended that the tamarind tree is situated in their property. They denied the alleged attempts of trespass into the suit property and prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWS 1 and 2 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendants examined DWs 1 and 2. Ext.C1 to C4 are the commissioner's reports and plans. 5. The trial court on an evaluation of the evidence, found that the defendants were holding land far in excess of what they had received under their document of title while the plaintiff fell short of the extent obtained by SA 798/96-C 3 him as per Ext.A1, even if the disputed portion is a portion of their property. The trial court found the plaintiff to be in possession of the land and accordingly, a decree was granted in his favour. 6. The defendants carried the matter in appeal as AS No.15/94 before the Sub Court, Quilandy. The lower appellate court reversed the judgment and decree of the trial court and dismissed the suit, holding that the defendants are in possession of the disputed portion of property. It is the said judgment and decree that are assailed in this second appeal. 7. Notice was ordered on the following questions of law : “1. Has not the lower appellate court gone wrong in stating that the trial court has found possession by the defendant of the disputed property by trespass whereas the trial court has found that the property is admittedly in the possession of the defendant which is plot B in SA 798/96-C 4 Ext.C4 was itself obtained by trespassing into a small extent of land belonging to the plaintiff. 2. When the dispute relates to a small extent of land in between the admitted properties of the plaintiff and the defendants and there is no demarcating boundary between the two plots, is not the existence of title for the plaintiff over the disputed property helpful to show his possession in the absence of any clinging evidence on the side of defendants? 3. Has not the lower appellate court gone wrong in ignoring the admission of defendants with regard to the possession of property in the written statements as well as about the absence of any boundary to separate the plaintiff's property from the disputed property and also with regard to the title and possession by the defendants of the property in their admitted possession based on Ext.A8. SA 798/96-C 5 4. Has not the lower appellate court gone wrong in interfering with the judgment and decree of the trial court without sufficient materials and has not the lower appellate court exceeded his powers as an appellate court ?” 8. Being a suit for injunction simpliciter, the only question that arose for consideration is as to who is legally in possession of the disputed property. The plaintiff has asserted in the plaint itself that the disputed portion is in his possession. It is also averred that when a dispute arose, he got his property measured by the Taluk Surveyor whereupon it was found that the disputed property wherein the tamarind tree is situated, belongs to him. 9. The main item of evidence in this case is the commissioner's report and plan. The trial court has chosen to rely on Exts.C4 plan and Ext.C3 report. The plaintiff has produced his document of title, which Ext.A1 and also the registration copy of Ext.A8 deed. The commissioner has measured the properties with reference to the respective SA 798/96-C 6 documents of title and has reported that even if the disputed portion of the property is excluded, the defendants hold property far in excess than what they are entitled to under Ext.A8. It is also found that the plaintiff owns only a lesser extent of property than what he is entitled to under Ext.A1. The appellate court criticised the finding of the trial court holding that the trial court was wrong in law and on facts in coming to a conclusion based on Ext.A8. The appellate court was under the impression that the defendants are disowning Ext.A8. 10. On going through the evidence and pleadings in the case, it can be seen that the defendants do not disown Ext.A8 and in fact, they stand by the same. A perusal of the evidence of PW1 would show that he has little knowledge of the dispute itself. The learned counsel appearing for the respondents pointed out that Ext.A8, which is the prior document of title of the defendants makes mention of improvements in the property, while Ext.A1 which is a subsequent document, is silent about the SA 798/96-C 7 same. This shows that the disputed property belongs to the defendants. The above contention is too thin to be accepted. The properties have been measured by a taluk surveyor and a sketch has been prepared. It does not appear that any objection has been preferred against the commissioner's report. The commissioner has categorically reported that as of now, including the disputed property, the defendants are holding excess land while the plaintiff, even including the disputed portion, will still hold lesser extent of property. It needs to be noticed that there are improvements in the property. Of course, PW2 would say that it was the plaintiff who was taking usufructs from the trees standing in the disputed portion of property while DW2 would say that it was he, who was allowed to take usufructs from the property. 11. The reasons given by the lower appellate court to disbelieve DW2 are not acceptable. The trial court has categorically found that the plaintiff was in possession of the disputed portion and granted reliefs in that regard to SA 798/96-C 8 the plaintiff. The approach of the lower appellate court does not appear to be correct. One fails to understand as to how the appellate court would have come to such a conclusion when the defendants did not disown Ext.A8 at all. The trial court had given convincing reasons to hold that the plaintiff was in possession of the disputed property. There is no justification for the lower appellate court to have interfered with the judgment and decree of the trial court. 12. True, this court is sitting in second appeal over the finding of a fact by the lower appellate court. But, one thing has to be noticed. The lower appellate court has erred itself in appreciating the evidence in the case and has come to wrong conclusion which are not warranted by the available records. To state an example, the lower appellate court has found fault with the trial court for relying on Ext.A8 as if the defendants disown the said document. In fact, it is a document on which the defendants relied on. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set SA 798/96-C 9 aside and that of the trial court are restored. The parties will suffer their respective costs in the second appeal. P.Bhavadasan, Judge sta SA 798/96-C 10