IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 SA.No. 430 of 1998(A) AND CROSS OBJECTION -------------------- AS.97/1996 of SUB COURT, KASARAGOD OS.430/1992 OF MUNSIFF COURT, KASARAGOD ................... 1ST APPELLANT / 1ST RESPONDENT / 1ST DEFENDANT : --------------------------------------------------------------------------------- 1. THE GENERAL MANAGER, THE PLANTATION COPORATION OF KERALA LTD., REGIONAL OFFICE, WEST HILL POST, KOZHIKODE – 5. 2ND APPELLANT / 2ND RESPONDENT / 2ND DEFENDANT : ------------------------------------------------------------------------------------- 2. THE CASHEW PLANTATION CORPORATION, MULIYAR DIVISION, KASARAGOD PO, MULIYAR, MULIYAR VILLAGE, KASARGOD. 3RD APPELLANT / 3RD RESPONDENT / 2ND DEFENDANT : ----------------------------------------------------------------------------------- 3. THE MANAGING DIRECTOR, THE PLANTATION CORPORATION OF KERALA LTD., KOZHIKODE POST, KOZHIKODE. BY ADVS. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI. A. KUMAR RESPONDENT / 1ST APPELLANT / PLAINTIFF : ------------------------------------------------------------------- 1. BEEPATHUMMA KODIMOOLE HOUSE BOVIKANAM TOWN KASARGOD TALUK, POST MULIYAR. ...2/- -2- SA.No. 430 of 1998(A) AND CROSS OBJECTION RESPONDENT / 2ND APPELLANT / PLAINTIFF : ------------------------------------------------------------------- 2. B.K. ABDULKHADER -DO- RESPONDENT / 3RD APPELLANT / PLAINTIFF : ------------------------------------------------------------------- 3. A. ABDUL ASHRAF ALIAS, B.K. ABDUL ASHRAF -DO- R1 TO R3 BY ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2011 , ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 430 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011. JUDGMENT The defendants, who suffered a decree at the hands of the lower appellate court, are the appellants. Plaintiffs have chipped in which a cross-objection. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was laid in respect of three items of property, namely item No.1 comprised in Sy. No. 388/1B having an extent of 1.12 acres, item No.2 comprised in Sy. No.389/1 having an extent of 1.56 acres and item No.3 comprised in Sy. No. 387/3B having an extent of 2.24 acres. Complaint of the plaintiff was that the employees of the defendants have come to his property and have numbered the trees. He thereafter found Ext.A4 publication informing that the trees numbered shall be cut. That necessitated the suit. S.A.430/1998. 2 3. The defendants confined their contentions mainly to item No.3. As regards item Nos.1 and 2 they raised only a formal objection. As regards item No.3, it was contended that even though the document of title of the plaintiffs show 2.24 acres, the actual extent is only 2.03 acres. They also disputed that their employees had numbered the trees. They therefore prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants did not adduce any oral evidence but marked Exts.B1 to B3. Exts.C1 and C2 are the commission report and plan. 5. The trial court on an evaluation of the evidence found that the plaintiffs are in possession of item Nos. 1 and 2 and also 2.03 acres of land in Sy. No.387/3B. But relief was declined to the plaintiffs on two grounds, namely, the plaintiffs have not proved the cause of action and also the S.A.430/1998. 3 description of item No.3 is not correct. The plaintiffs carried the matter in appeal as A.S. 97 of 1996. The lower appellate court granted a decree in favour of the plaintiffs in respect of item Nos. 1 and 2. But as regards item No.3 the lower appellate court confirmed the reason given by the trial court. The defendants have come up in appeal against the decree granted against item Nos. 1 and 2. The plaintiffs have filed the cross objection challenging that part of the decree, which declined relief to them as regards item No.3. 6. Notice is seen issued on the following questions of law: “i) Whether or not the Lower Appellate Court was correct in its finding that Item Nos.1 and 2 of plaint A schedule properties have been correctly identified by the Commissioner and if so whether the plaintiff is entitled to an injunction. ii) Whether or not the lower appellate court was justified in entering into a finding that item Nos.1 and 2 of plaint A schedule properties were properly identified by the Commissioner in the absence of a correct sketch and plan. S.A.430/1998. 4 iii) Whether or not the lower Appellate Court could have decreed the suit in favour of the plaintiff by granting an injunction in respect of item Nos. 1 and 2 of plaint A schedule properties when item No.3 itself which was lying contiguously with item Nos1 and 2 has not been properly identified. iv) Whether the lower appellate court was right in holding that the plaintiff had cause of action for the suit, in the absence of any evidence on the same. v) Has not the lower appellate court acted irregularly and in excess of its appellate powers in interfering with the judgment of the trial court.” 7. Learned counsel appearing or the appellants pointed out that the lower appellate court was not justified in granting relief to the plaintiffs especially when there was nothing to show that they had any cause of action against the defendants. It was also pointed out that there was no attempt from the employees of the defendants to number any of the trees comprised in plaint schedule items and the S.A.430/1998. 5 allegations to the contrary are false and incorrect. No relief ought to have been granted to the plaintiffs. 8. In the cross objection, the plaintiffs have pointed out that the commissioner has identified item No.3 and has shown the same specifically in the plan. It is true that in the plaint the extent shown is 2.24 acres, but the actual extent available is 2.03 ares. Merely because a larger extent is shown, that is not a ground to deny relief to the plaintiffs, since they are seeking a lesser relief, which is permissible in law. It is therefore contended that relief ought to have been granted in respect of item No.3 also. 9. Coming to the appeal by the defendants, at the outset itself it has to be said that the appeal is without any merits whatsoever. There is no dispute regarding item Nos.1 and 2 and the dispute relates to item No.3 alone as noticed by the lower appellate court. It is true that the plaintiffs had shown item No.3 as having an extent of 2.24 acres comprised in Sy. No.387/3B. The commissioner has identified all the 3 items. The commission reports shows S.A.430/1998. 6 that the third item is actually comprised in R.S. No.387/4, earlier it was Sy.No.387/3B. The commissioner has also noticed that the extent is only 2.03 acres. It needs to be noticed that 2.03 acres lies within a fencing eructed by the plaintiffs. 10. As far as item Nos.1 and 2 are concerned, the commissioner has identified the properties. The defendants have no serious dispute regarding item Nos.1 and 2 and therefore the decree of the lower appellate court granting relief in respect of item Nos. 1 and 2 is only to be confirmed. 11. Coming to item No.3, as noticed earlier, the commissioner has identified the property giving side measurements also. It is also stated by the commissioner that it is an areca garden and lies within a fencing. The commissioner has also pointed out that the trees standing outside the fencing is of a different nature. Merely because the plaintiff has shown the extent as 2.24 acres in the plaint, that was not a ground to reject relief in respect of item No.3. When it is found that on resurvey the extent of land is 2.03 S.A.430/1998. 7 acres, which is admitted by the defendants, there was no justification in declining to grant relief in respect of item No.3 also. 12. The claim of the defendants that there was no cause of auction is incorrect. The lower appellate court has noticed that some of the trees standing in item Nos. 1 and 2 have been numbered, though learned counsel for the appellants contended that there was nothing to show that the numbering was done by the employees of the defendants, it can only be so. There is no reason why the plaintiffs should number their own trees. May be that those trees were not included in Ext.A4 publication. But numbering was sufficient to cause a reasonable apprehension in the mind of the plaintiffs. Therefore it could not be said that there was no cause of action. 13. As regards item No.3 there is serious dispute regarding the extent and it was found by the commissioner that the extent available was only 2.03 acres. There is nothing to show that item No.3 is not identifiable. The S.A.430/1998. 8 commissioner has reported that item No.3 lies within a fencing and the extent is only 2.03 acres. Ext.A2 is the document of title in respect of item No.3. The lower appellate court was not justified in declining relief to the plaintiffs as regards item No.3. The result is that the appeal will have to fail and the cross appeal will have to succeed. Hence the appeal sands dismissed and the cross appeal stands allowed. There will be an injunction in respect of item No.3 as identified by the commissioner and as prayed for in the plaint. Ext.C2 plan shall form part of the decree. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.