IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 SA.No. 48 of 1997(E) -------------------- AS.34/1993 of SUB COURT, QUILANDY OS.21/1985 of MUNSIFF COURT, QUILANDY .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------------- VARANKAL UNNERA, S/O. CHATHAN RESIDING AT PANNIKUZHITHAZHA JUNIYIL, CHEMANCHERRY AMSOM. BY ADV. MR.M.K.S.MENON RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------- VARANKAL KUNHIKANARAN, S/O.CHATHAN, KURUVANGAD AMSOM & DESOM. ADV. MR.PARTHASARATY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 48 of 1997(E) ORDER ON C.M.P.NO.2158/2000 IN S.A.NO.48/1997 DISMISSED. 1.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.48 Of 1997 ---------------------- Dated this the 1st day of June, 2010. J U D G M E N T The defendant in O.S.No.21 of 1985 on the file of the Munsiff Court, Koilandy is the appellant. The suit was filed for permanent prohibitory injunction. The trial court decreed the suit as prayed for and the defendant and his men are permanently restrained from trespassing into the plaint schedule property and taking income therefrom and not alter the boundaries of the suit property or from causing destruction to the kuzhikoors and improvements in the suit property. The defendant preferred appeal. The appellate court confirmed the decree and judgment passed by the trial court. Hence the appeal. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff and defendant are brothers. They are in possession and enjoyment of the properties by virtue of gift deeds obtained from their father. Plaintiff is claiming possession and enjoyment of the plaint schedule property on the strength of S.A.No.48 Of 1997 ::2:: Ext.A1 gift deed of the year 1969. The defendant is in possession of the property lying on the west of the plaint schedule property. The defendant obtained the said property by virtue of Ext.A2 gift deed dated 22.1.1981 from his father. It is the case of the plaintiff that the defendant influenced his aged father and got a document executed with respect to a small strip of land and on the strength of the said document, which is marked as Ext.B1, the defendant is trying to trespass and encroach into the plaint schedule property. 3. The appellant/defendant contested the suit and denied the allegations in the plaint. According to the defendant the entire property belonging to the plaintiff and defendant is known as Varankal paramba and that was in possession and enjoyment of Chathan, father of the plaintiff and defendant and western portion of Varankal paramba was gifted to the defendant by the father and eastern portion to the plaintiff. It is also contended that there is a small strip of land lying in between the property of the plaintiff and defendant and the said plot was assigned to the defendant by his father for a consideration of Rs.300/-. It is S.A.No.48 Of 1997 ::3:: contended by he defendant that, the said strip of land is in his possession and the plaintiff has no manner of right, title or possession over the said extent. The plaintiff and defendant adduced evidence, both oral and documentary before the trial court. The trial court appreciated the evidence tendered by the parties. The court below observed that the parties are not disputing the gift deeds executed by their father. The dispute is only with respect to the small strip of land, which is the subject matter of assignment deed executed by the father in favour of the defendant in the year 1985, marked as Ext.B1. It is the plaintiff's case that there is no such land in possession of their father after he executed gift deeds in favour of plaintiff, defendant and Velu, brother of the plaintiff and defendant. There is a latrine on the western side of the plaint schedule property which is used by the plaintiff. 4. The defendant is claiming right over the property on the strength of Ext.B1 document. Ext.B1 is an assignment deed executed by the father in respect of the balance property, which according to the defendant was not assigned to any of the three S.A.No.48 Of 1997 ::4:: sons. Plaintiff's case is that the entire extent owned and possessed by their father was gifted to the plaintiff, defendant and another brother, Velu on three occasions and there is no property left behind by the father which is the subject matter of Ext.B1 assignment. The trial court disbelieved the evidence tendered by the defendant. The trial court examined the boundaries of the property covered by Exts.A1 and A2. After appreciating the evidence on record, the trial court held that the father Chathan had already gifted the entire property in his possession to his three sons and there is no portion on Varankal paramba left with him to be assigned to defendant in 1985 ie., three months prior to his death. The trial court found that the plaint schedule property is possessed and enjoyed by the plaintiff and that the plaintiff has right, title and possession over the plaint schedule property. The suit is for permanent prohibitory injunction. The only question to be decided in a suit for injunction is the question of possession and not title. The enquiry should have been limited to the question of possession. The first issue framed is whether the plaintiff has got title and possession S.A.No.48 Of 1997 ::5:: of the plaint schedule property. Since the suit is filed for injunction simplicitor, the findings recorded by the court can only be relates to the question as to which party is in possession of the plaint schedule property. The trial court on facts found that the plaintiff is in possession of the plaint schedule property. The appellate court confirmed the findings on merits. I do not find any reason to interfere with the findings of facts recorded by the courts below. No question of law much less any substantial question of law arises for consideration in the appeal. At the same time, it is observed that the findings recorded by the trial court which was confirmed in appeal is confined to the question of possession. The question of title with respect to the small strip of land covered by Ext.B1 title deed is left open. In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-