IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 SA.No. 547 of 1999(F) --------------------- AS.13/1995 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.278/1991 of MUNSIFF'S COURT,ALUVA .................... APPELLANT(S): APPELLANTS/DEFENDANTS: ------------------------------------------------------------------- 1. ALI, SON OF KUNJU MUHAMMED, MULLASSERI VEEDU, NEDUVANNOOR KARA, CHENGAMANADU VILLAGE. 2. UMMER, SON OF PAREEKUTTY, MULLASSERY VEEDU, NEDUVANOOR KARA, CHENGAMANADU VILLAGE. BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH. RESPONDENT(S): RESPONDENTS/PLAINTIFFS: -------------------------------------------------------------------- 1. KURIAKOSE, SON OF ITTIACHAN, THACHAPPILLY VEEDU, NEDUVANNOOR KARA, CHENGAMANADU VILLAGE. 2. MARY, WIFE OF KURIAKOSE, THACHAPPILLY VEEDU, NEDUVANNOOR KARA, CHENGAMANADU VILLAGE. 3. MARY, WIFE OF DEVASSY, THACHAPPILLY VEEDU, NEDUVANNOOR KARA, CHENGAMANADU VILLAGE. R1 TO R3 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR), SRI.GEORGE VARGHESE KIZHAKKAMBALAM. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Order on CMP.No.1483/1999 in SA No.547/1999 Dismissed 06/04/2011 SD/- P.BHAVADASAN, JUDGE /True Copy/ P.A.to Judge kss P.BHAVADASAN, J. ------------------------------------- SA No.547 of 1999 ------------------------------------- Dated this the 2nd day of June 2011 Judgment Faced with the concurrent findings against them, defendants 1 and 2 before the trial court have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. In this appeal, we are only concerned with the property owned and possessed by the plaintiffs and defendants 1 and 2. It seems, the properties of defendants 3 and 4, during the pendency of the suit, have been sold to the plaintiff and no reliefs are sought in respect of those properties. The complaint of the plaintiffs was that defendants 1 and 2, who owned and possessed property adjacent on the eastern side of the plaint schedule items are excavating soil from the paddy land for the purpose of brick manufacturing, causing threat and danger to the plaintiffs' properties. Pointing out that the plaintiffs are SA 547/99 2 entitled to protect their property, they instituted the suit for mandatory and permanent prohibitory injunctions. 3. Defendants 1 and 2 resisted the suit. They denied the allegations in the plaint. They admitted that they are digging soil for the purpose of manufacturing bricks. They however contended that they do not intend to cause any harm to the property owned and possessed by the plaintiffs. Apart from the said contention, they also contended that the excavation was necessary to prepare the property for paddy cultivation. Controverting the allegations in the plaint, they 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 to 3 from the side of the plaintiffs. Defendants had DW1 examined. No documents were marked by either side. 5. The trial court on the basis of the commissioner's report, found that the grievance of the SA 547/99 3 plaintiffs is justified and accordingly granted a decree in their favour. 6. The disappointed defendants 1 and 2 took up the matter in appeal as AS No.13/1995 before the District Court, North Paravur. The lower appellate court deputed a commissioner and the commissioner's report and plan were marked as Exts.C1 to C2(a). On an appreciation of the materials before it, the lower appellate court found that the conclusions drawn by the trial court were justified and that the plaintiff's grievance was genuine. However, while confirming the decree of the trial court, it was modified and defendants 1 and 2 were directed to put up a retaining wall in their property close to the eastern boundary of the plaint item no.1 with granite stones. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Were the courts below right in granting injunction without actually locating the actual boundary in the facts and circumstances of the case ? SA 547/99 4 2.Were the courts below right in accepting the commissioner's report without examining the Advocate Commissioner on the facts and circumstances of the case ? 3. Were the courts below right in granting injunction without ascertaining the actual boundaries of the properties ? 8. The learned counsel for the appellants pointed out that the trial court granted the decree on the basis of the commissioner's report and plan, which were not marked before it and that is improper. The commission was taken out at the appellate stage and the commissioner's report and plan were marked without examining the commissioner. Though the appellants had filed objections to the report and plan, that was not considered and that has caused considerable prejudice to the appellants and has resulted in miscarriage of justice. 9. The learned counsel for the respondents pointed out that the non-marking of the commissioner's report and plan is only a technicality and it has not caused any prejudice to the defendants 1 and 2 since they had full SA 547/99 5 liberty to assail the commissioner's report and plan. As regards the commissioner's report and plan before the lower appellate court, the learned counsel pointed out that it was necessitated only to ascertain the then existing situation and the decree was not based on that report and plan and therefore, no injury can be said to be caused to the appellants by the marking of the commissioner's report and plan before the lower appellate court. The learned counsel also pointed out that the findings of the courts below are based on evidence on record and no substantial questions of law arise for consideration in this second appeal. 10. There seems to be considerable force in the submissions made by the learned counsel for the respondents. It is true that by an inadvertent omission, the trial court omitted to mark the commissioner's report and plan. Merely because the report and plan were not marked, it does not mean that it cannot be relied on. As per Order XXVI Rule 10 CPC, the report and plan forms part of the SA 547/99 6 records of the court. Both the courts below have found that going by Exts.C1 and C1(a), the grievance voiced by the plaintiffs is true. As far as Exts.C2 and C2(a) are concerned, as rightly pointed out by the learned counsel for the respondents, they were marked only for the purpose of ascertaining the then existing situation and not for ascertaining any new facts. It is also true that the appellants had filed objections to the commissioner's report and plan. One needs to notice that the lower appellate court confirmed the decree not on the basis of Exts.C2 and C2(a), but on the basis of Exts.C1 and C1(a) and on an appreciation of the evidence adduced before it and no new evidence was taken into consideration to confirm the decree. Viewed from that angle, it cannot be said that the marking of the commissioner's report and plan before the lower appellate court without examining the commissioner, has caused prejudice to the appellants. As rightly pointed out by the learned counsel for the respondents, the findings of the courts below are essentially based on appreciation of SA 547/99 7 evidence and are findings of fact. It is not shown that the findings are either perverse or unwarranted by the evidence on record. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 547/99 8