IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 SA.No. 822 of 1996(F) --------------------- AS.78/1989 of ADDL.DISTRICT COURT, KOZHIKODE OS.424/1985 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------- V.K.RAGHAVAN, JUNIOR TELECOMMUNICATION OFFICER, (JTC), QUARTER NO.7, HEAD QUARTERS HOSPITAL PO., KANNUR. BY ADV. MR.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE MR.K.MOHANA KANNAN RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. SRAMBIKKAL MALU ALIAS KUTTIATHA, D/O.CHOYI, RESIDING IN KUMARANELLUR AMSOM ALLI DESOM KOZHIKODE TALUK. 2. SRAMBIKKAL SOUBHAGYAVAN, S/O.KORU, RESIDING IN KUMARANELLUR AMSOM & DESOM, KOZHIKODE TALUK. 3. SRAMBIKKAL KOMALAVALLY, D/O. -DO- -DO- 4. SRAMBIKKAL RAVEENDRAKUMAR, S/O. KORU, -DO- -DO- -DO- 5. SRAMBIKKAL JAYAPRAKASH, -DO- -DO- -DO- ADV. MR.MKS.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.822 Of 1996 ---------------------- Dated this the 17th day of June, 2010. J U D G M E N T The plaintiff in O.S.No.424 of 1985 on the file of the Additional Munsiff Court, Kozhikode is the appellant. The suit was filed for a permanent injunction restraining the defendants from interfering in any manner with the possession of the plaintiff and enjoyment of the plaint schedule property or its four boundaries including the fence and silk cotton trees on the northern boundary. The trial court dismissed the suit. The appellate court confirmed the decree and judgment . Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The dispute in this case is really a boundary dispute. Of course, it is for the plaintiff to prove the description of the plaint schedule property beyond any shadow of doubt. Whether the plaintiff has valid title over the plaint schedule property by virtue of Ext.A1 title deed is not a question to be decided in a suit for injunction. The question to be decided is whether the plaintiff S.A.No.822 Of 1996 ::2:: is in possession of the plaint schedule property lying within the boundaries shown in the plaint. While the plaintiff was examined as PW1, he testified before the court that he is possessing the property on the basis of four boundaries. That does not mean his possession of the plaint schedule property is not on the basis of the title deed and possession of property on the basis of four boundaries. The commissioner's report and the evidence on record throws light on the contentions raised by the plaintiff that he is possessing the area marked as KDEICJ in the commissioner's plan. In Ext.C2 report, the commissioner has noted a raw of bush and a line of trees standing on the EI line. the chal in existence on the western side of the property shown as KEDICJ in the commissioner's plan demarcating the same and the property situated on the west belonging to the defendant as well as the bush and the trees on the northern boundary i.e., on The EI line show that the portion shown as EICJK is lying separated from the other property of the defendants. The defendants have admitted that there are compound walls existing on the HJ. GF and GHIC lines only. They further admitted that S.A.No.822 Of 1996 ::3:: there is no compound wall existing on the FEI line. It is also admitted by them that the compound wall running through HIC line further runs towards south from the point C. The trial court observed that the aforesaid facts will show that the compound wall existing on the IC line is not constructed by the defendants but by the owners of the Kavaloram Estate situated on the east of the property. Trial court also noted that the defendants have not filed any objection against the statement of the commissioner in this regard. 3. Trial court also observed that defendants did not construct any compound wall on the DC line. The trial court further observed that the said facts shows that the contention of the plaintiff that he is in possession of the entire area up to EI line is true. The trial court also noted the fact that the plaintiff asserted in the box that he has put up a wicket barrier or a stile on the point I. The commissioner noted a fence on the point I. The trial court further held that the existence of a wicket barrier or stile will got to show that the plaintiff possesses the land up to the IE line. S.A.No.822 Of 1996 ::4:: 4. The commissioner in his first report reported that the property marked as KDEICJ is lying separately from the rest of the properties possessed by the defendants. Various facts reported by the commissioner after visiting the site as well as the other circumstances brought out in evidence by the plaintiff shows that the plaintiff is in possession of the property shown as KDEICJ in the survey plan. The trial court on a perusal and discussion of the commissioner's report concluded that the plaintiff is in possession of the property shown as KDEICJ in the survey plan. 5. The trial court also found that the suit was filed based on a valid cause of action. But, the trial court refused to grant a decree because according to the learned Munsiff the property shown in the plaint do not strictly tally with the measurements and survey numbers of the property shown as KDEICJ in the survey plan. The learned Munsiff found fault with the plaintiff in not chose to amend the plaint in accordance with the commissioner's plan and report. So, after recording the finding on the basis of the commissioner's report and on the basis of the S.A.No.822 Of 1996 ::5:: materials on record that the plaintiff is in possession of the property shown as KDEICJ in the survey plan, the learned Munsiff failed to pass a decree in favour of the plaintiff for failure of the plaintiff to amend the plaint. 6. Before the appellate court the appellant/plaintiff pleaded for a remand for amendment of the plaint. The lower appellate court did not afford opportunity to the plaintiff to amend the plaint. In the light of the findings recorded by the trial court and on the basis of evidence on record the request of the appellant should have been considered in the positive way. In the interest of justice, this Court feels that an opportunity shall be given to the plaintiff to amend the plaint so as to suit the plaint in accordance with the commissioner's plan and report. In the result, the appeal is partly allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for fresh consideration. The appellant/plaintiff shall be given an opportunity to amend the plaint. Parties shall be given an opportunity to adduce further evidence, if any. The trial court shall dispose of the case within a S.A.No.822 Of 1996 ::6:: period of nine months from the date of receipt of a copy of this judgment, untrammelled by any of the observations made by any courts. Parties shall appear before the court below on 14.7.2010. The counsel shall inform the parties. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-