IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 SA.No. 94 of 2000(C) -------------------- AS.55/1992 of II ADDL. DISTRICT COURT, PALAKKAD OS.265/1986 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1. T.P.NARAYANAN, S/O.PANCHANATHA IYER, 2. T.P.KRISHNAN, S/O.PANCHANATHA IYER, BOTH RESIDING AT THAREKKAD,PALGHAT. BY ADV. SRI.T.M.SUNIL, SMT.S.CHITHRA, SHRI A.R.GANGADAS RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- THYLAMBAL, W/O.KALYANA RAMAN, THAREKKAD GRAMAM, PALGHAT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.KRISHNA PRASAD. S THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.94 of 2000 -------------------------------------- Dated this the 4th day of November, 2009. JUDGMENT The Second Appeal arises from judgment and decree of the court of learned Additional District Judge-II, Palakkad in A.S.No.55 of 1992 confirming judgment and decree of the court of learned Principal Munsiff, Palakkad in O.S.No.265 of 1986. That was a suit for injunction, prohibitory and mandatory filed by the respondent/plaintiff claiming that property described in the plaint schedule - seven cents in Sy.No.1380 and five cents in Sy.No.1379/2 with kole measurement of 41 x 3.5 belonged to her as per Ext.A1, assignment deed dated 22.4.1981. She stated that the suit property has well defined boundary on all sides and two country latrines on its western extremity. When she attempted to renovate the fence on the northern side appellants objected and even demolished a portion of it. Hence the suit. Appellants denied that respondent has title or possession of the entire property scheduled. According to them, four cents in Sy.No.1379/2 belonged to appellant No.1 and another one cent in the same survey belonged to appellant No.2. They are in possession and enjoyment of that property. They denied that properties comprised in Sy.Nos.1380 and 1379/2 lie contiguously. There is a fence on the norther side of the suit property. When respondent attempted to put up a new fence on the northern side, they objected. Learned Principal Munsiff found that though going by Ext.A1 respondent is not getting title over the five cents in Sy.No.1379/2 and SA No.94/2000 2 what is assigned to her as per Ext.A1 is only property in Sy.No.1380, evidence revealed that respondent is in possession of the entire suit property and consequently granted decree for prohibitory injunction while, for want of evidence that appellants destroyed the fence, prayer for mandatory injunction was refused. First appellate court has confirmed the judgment and decree of the learned Munsiff. Hence this Second Appeal. Following substantial questions of law are framed for a decision: i. Are the courts below are correct in granting permanent prohibitory injunction without framing and considering the issue regarding title particularly when the respondent asserted that she is in possession of the suit property on the basis of Ext.A1 and appellants asserted that the western portion of the suit property belongs to them as per Ext.B1, partition deed? ii. Having noted that there are discrepancies in the boundaries in Ext.A1 and it differs from the plaint schedule description are the courts below correct in granting a permanent prohibitory injunction without even properly identifying the property in respect of which the injunction is sought? SA No.94/2000 3 iii. Are the courts below correct in granting a decree for permanent injunction from making any obstruction to the peaceful possession of the property when respondent has sought for injunction only in respect of putting up of a fence on the western and northern side of the plaint schedule property? iv. Are the courts below correct in granting reliefs in excess of the reliefs sought for in the plaint? 2. It is argued by learned counsel for appellants that though learned Munsiff did not go into the question of title and even found that as per Ext.A1 respondent is not entitled to get title over the property comprised in Sy.No.1379/2 first appellant court has exceeded its power in observing that respondent has title over the disputed property. Learned counsel complained that in the way first appellate court has disposed of the appeal even a suit on title by the appellants is barred. Further contention of learned counsel is that on the materials on record and in the light of the admitted discrepancy regarding boundaries of the suit property, courts below went wrong in granting relief of prohibitory injunction on the premises that the respondent is in possession of the entire suit property. 3. Learned Munsiff framed issues whether respondent is in possession of the entire suit property and is entitled to get a decree for SA No.94/2000 4 injunction as prayed for. In paragraph No.6 of the judgment learned Munsiff referred to the respective contentions and evidence and came to the conclusion that the suit property which lies contiguous without any boundary in between in possession of the respondent and accordingly granted decree for prohibitory injunction. Though respondent had paid court fee under Section 27(a) of the Court Fees Act requesting an enquiry into title, learned Munsiff did not frame an issue regarding title and instead, considered and answered the question whether respondent is in possession of the suit property and entitled to get a decree for prohibitory injunction. Learned Munsiff has not framed any issue regarding title nor is it required in a suit for injunction. But, it is seen that respondent has paid court fee under Section 27(a) of the Court Fees Act. 4. So far as a suit for injunction is concerned the Supreme Court has held in Anathula Sudhakar v. P.Buchi Reddy (2008 (4) SCC 594) that an enquiry into title is not required except if it is necessary for consideration of the question whether plaintiff is in possession of the property. In this case, learned Munsiff has not framed any specific issue regarding title claimed by the respondent and hence, notwithstanding that respondent has paid court fee under Section 27(a) of the Court Fees Act it is not necessary at this stage to go into the question of title claimed by the respondent. What is required for consideration is only whether respondent was in possession of the suit property on the date of suit. SA No.94/2000 5 5. The boundary description of suit property in Ext.A1 and the plaint schedule except the western boundary are the same. In Ext.A1, western boundary is described as ‘thodika’ while in the plaint schedule the western boundary is stated as ‘thottipatha’. Learned counsel for appellants explained that ‘thottipatha’ means ‘pathway’ while ‘thodika’ means ‘parambu’. Thus there is somr dispute regarding the western boundary of the suit property. But, it is seen from the report (Ext.C1) of the advocate commissioner that on his inspection of the suit property on the date of suit he found fence on all sides of the suit property. On the northern side there was a fence at a small portion and at the remaining portion (on the northern side) commissioner found remnants of the old fence. On the Western side (which is the disputed boundary) commissioner found remnants of a ruined compound wall. There were specific boundaries on all other sides also. Commissioner reported that the house of respondent is situated in the property comprised in Sy.No.1380 and that the disputed portion is the property comprised in Sy.No.1379/2. Commissioner however did not find any boundary demarcating the properties comprised in Sy.Nos.1380 and 1379/2 (which together is described in the plaint schedule). Coupled with that there is evidence of PWs 1 and 2 for the respondent regarding possession. On the side of appellants, DW1 gave evidence and Exts.B1 to B4 marked. Ext.B1, photocopy of the partition deed of the year 1984 deals with the property comprised in Sy.No.1379/2 between the parties thereto. SA No.94/2000 6 6. So far as possession of the suit property is concerned, courts below basing on Ext.C1 held that respondent is in the possession of the property. Learned Munsiff has pointed out that if the respondent had no possession of property comprised in Sy.No.1379/2 as contended by the appellants, necessarily there should have been a boundary on the western side of the property comprised in Sy.No.1380 which was conspicuously absent at spot when inspected by the advocate commissioner. 7. Learned counsel for appellants contended that appellants had no information about the arrival of the advocate commissioner in the suit property on the date of suit. But, it is seen from Ext.C1 that notice was given to the appellants at the spot. Moreover, though commissioner was not examined as a witness Ext.C1 was marked without any objection and hence it must be taken as forming part of the records of the case. Therefore, challenge to the acceptability of Ext.C1 cannot be sustained at this stage. 8. Issue regarding possession is one of fact which the courts below answered in favour of the respondent and that finding is based on the evidence on record including report of the advocate commissioner which I have stated above. High Court in Second Appeal can interfere with a finding of fact only when that finding is perverse or is not supported by any evidence which contingency does not arise in this case. As such I do not find reason to interfere with the finding of the courts below that respondent is in possession of the suit SA No.94/2000 7 property on the date of suit. The relief granted is based on the relief prayed for, to protect possession of the respondent. It is always within the power of the court to mould relief. I am not inclined to think that the trial court has exceeded its power in granting relief. However I make it clear that any observation or finding made by the courts below on the title claimed by the parties over the disputed property will stand set aside leaving it open to them to agitate the same in appropriate proceedings if they are otherwise entitled to that course. Substantial questions of law framed are answered accordingly. The Second Appeal fails. It is dismissed. No cost. THOMAS P.JOSEPH, Judge. cks SA No.94/2000 8 Thomas P.Joseph, J. S.A.No.94 of 2000 JUDGMENT 4th November, 2009.