IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 RSA.No. 617 of 2008() --------------------- AS.68/2004 of ADDL.SUB COURT, ALAPPUZHA OS.4/2002 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/RESPONDENTS 2 & 3 & 5 TO 9/DEFENDANTS 2 &3 & 5 TO 9: ------------------------------------------------------ 1. SARASWATHY, W/O.LATE KUMARAN, VELYIL VEEDU, PATHIRAPPALLY, MARARIKULAM SOUTH PANCHAYATH. 2. OMANA, D/O.KUMARAN, DO. DO. 3. LALITHAMBIKA, D/O.LATE KUMARAN, DO. DO. 4. BHUVANESWARI, W/O.LATE KUMARAN, DO. DO. 5. SHIBU, W/O.LATE KUMARAN, DO. DO. 6. SHARMILA, D/O.LATE KUMARAN, DO. DO. 7. NISHANTH, S/O.LATE KUMARAN, DO. DO. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN RESPONDENTS: APPELLANT & 4TH RESPONDENT/PLAINTIFF & 4TH RESPOND --------------------------------------------------------------- 1. V.VISWANATHAN NAIR, CHERUKATTUVELI, KANJIKUZHY, S.N.PURAM, ANAPPUZHA. 2. BHUVANACHANDRAN, S/O.LATE KUMARAN, VELIYIL VEEDU, PATHIRAPPALLY, MARARIKULAM SOUTH PANCHAYATH. BY /- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ==================== R.S.A.No.617 of 2008 =========================== Dated this the 18th day of September, 2008. J U D G M E N T Defendants 2,3 and 5 to 9 in O.S.No.4/2002 on the file of Additional Munsiff's Court, Alappuzha are the appellants in this second appeal. The said suit instituted by the 1st respondent herein, was one for perpetual injunction restraining the defendants from trespassing upon the plaint schedule property which was described as 10 cents of land and excess land. 2. According to the plaintiff, plaintiff purchased 50 cents of land under Ext.A1 sale deed dated 15.3.1968 and out of the said 50 cents, he had gifted 40 cents to his daughter as per Ext.A3 gift deed dated 15.9.2000 and he was in possession of the balance extent of 10 cents and excess land, which is the plaint schedule property. The plaintiff, would have it that the defendants on the strength of laying an illegal claim over the plaint schedule property, were trying to trespass into the same by forcibly removing the northern fence and that on 19.12.2001, they along with their henchmen made an attempt to remove the R.S.A.No.617 of 2008 2 fence. But due to the timely intervention of the plaintiff, the said attempt was foiled. Hence the suit. 3. The defendants resisted the suit contending inter alia that the plaintiff does not have title or possession over the plaint schedule property, that the plaintiff had only obtained 50 cents of land and after Ext.A3 gift deed, the plaintiff was in possession of only 10 cents of land and he had no excess land in his possession, that on 21.12.2001, the plaintiff had constructed a fence partly along the northern boundary of the said 10 cents and taking advantage of the same the suit has been filed making a false claim over the property belonging to the defendants. 4. The learned Munsiff, after trial, as per judgment and decree dated 12.3.2004 found that since the plaintiff had no case that as per Ext.A1 sale deed, he had obtained any property in excess of 50 cents, his contention that he was in possession of 10 cents and excess land after Ext.A3 gift of 40 cents from Ext.A1 property could not be true and accordingly dismissed the suit. On appeal preferred by the plaintiff, the lower appellate court decreed the suit for injunction. Hence this second appeal. R.S.A.No.617 of 2008 3 5. The lower appellate court has rightly observed that in a suit for injunction, the only question relevant is whether the plaintiff is in possession of the property as claimed by him. It may be true that the plaintiff has title only over 10 cents of land after Ext.A3 gift of 40 cents from Ext.A1 property admeasuring 50 cents. In a suit for injunction, the only question germane for consideration is as to whether the plaintiff has possession of the plaint schedule property. The question of title over the plaint schedule property is foreign to the enquiry. The lower appellate court has relied on Ext.C1 and C1(b) to show that the property over which the relief is claimed by the plaintiff is lying within the fence on all the four sides with some discontinuous fence on the northern side. The property of the defendants is further to the north of the plaint schedule property. Going by the report and plan of the commissioner, the property lying within the fence on the all four sides is being enjoyed by the plaintiff as compact plot with improvements of similar age. Such being the factual scenario, it is futile for the defendants to contend that the plaintiff has not established his title over the property claimed by him. R.S.A.No.617 of 2008 4 6. Learned counsel appearing for the appellants/defendants contended that the trial court had refused their application to measure out the property on the basis of survey measurement and if the respective properties were identified with survey assistance it would have clearly shown that the plaintiff had actually encroached upon a portion of the defendants' property. According to him, the trial court was not right in rejecting the application filed by the defendants to appoint an advocate commissioner for measuring their properties. 7. The suit was one for injunction simplicitor and there was no counter claim as well. Hence the only question germane for consideration was the possession of the plaintiff over the property claimed by him on the date of the suit. The lower appellate court was convinced that the property over which the injunction is sought for was in the possession and enjoyment of the plaintiff and lying within the boundaries on all the four sides except for some portion on the northern side. If, according to the defendants, the plaintiff has trespassed upon a portion of their property, they can very well sue the plaintiff for recovery of R.S.A.No.617 of 2008 5 possession of the strength of their title. The finding of the lower appellate court was in the right perspective. The trial court had proceeded as if it was a suit on title. That is not the proper perspective in which the rival contentions should have been appreciated. I find no ground to interfere with the decree passed by the lower appellate court. No question of law much less any substantial question of law arises for consideration in this second appeal which is accordingly dismissed. V.RAMKUMAR JUDGE. bkn/-