IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 SA.No. 466 of 1999(E) ------------------- AS.55/1996 of SUB COURT, HOSDRUG OS.320/1994 of MUNSIFF COURT, HOSDRUG ............... APPELLANTS (RESPONDENTS / DEFENDANTS): -------------------------------------------------------------------- 1. MELATH LAKSHMI AMMA. 2. MELATH NARAYANAN NAIR. 3. MELATH SARADA. 4. MELATH SAROJINI. 5. MELATH NARAYANI THE 1ST APPELLANT IS THE WIDOW AND APPELLANTS 2 TO 5 ARE THE CHILDREN OF KOOKAL KUNHIKANNAN NAIR. APPELLANTS 1 TO 4 ARE RESIDING AT BANGAT THANNIKAL, PANAYAL VILLAGE, POST PANAYAL, VIA. BEKAL AND 5TH APPELLANT IS RESIDING AT KAMMATTUNGALVEEDU, THEKKIL PARAMBA, THEKKIL VILLAGE, POST CHATTENCHAL. BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARI SHARMA SRI.T.P.ELDHOSE RESPONDENT (APPELLANT / PLAINTIFF): ------------------------------------------------------------ KOOKAL RAGHAVAN NAIR, S/O. PATTI AMMA, KODAVALAM, PULLUR VILLAGE, HOSDRUG TALUK, POST HARIPURAM. BY ADV. SRI.KODOTH SREEDHARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 466 of 1999(E) -2- ORDER ON C.M.P. NO. 1198/1999 IN SA. NO. 466/1999 DISMISSED 25/01/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 466 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2011. JUDGMENT The defeated defendants are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was in respect of two items of properties. Item No.1 consists of 40 cents and item No.2 consists of 25 cents. The plaintiff claims to have obtained the properties as per Exts.A1 and A2 respectively. The predecessor in interest of the defendants was allotted the plaint schedule property as per partition deed, which is on the north of item No.1. Alleging that the defendants were trying to trespass into the property, the suit was laid. 3. The defendants resisted the suit. They challenged the validity of Ext.A1 partition deed, on the basis of which the plaintiff laid claim to item No.1. S.A.466/1999. 2 According to them, 10 acres of land comprised in Sy. No.84/1D was outstanding on lease with Kunhikannan Nair, the predecessor in interest of the defendants, and he had obtained Ext.B1 purchase certificate. That property was fraudulently included in the partition deed evidenced by Ext.A1 deed and the plaintiff was not derived any right over the suit property. They therefore prayed for a dismissal of the suit. 4. It appears that there was a subsequent amendment to the plaint. The defendants also filed additional written statement. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendants examined D.W.1 and had Exts.B1 to B6 marked. Exts.C1 and C2 are the commission report and plan. The trial court, mainly based on the commission report Ext.C1 and Ext.C2 plan came to the conclusion that the plaintiff was unsuccessful in establishing possession over the suit S.A.466/1999. 3 property and accordingly dismissed the suit. The plaintiff carried the matter in appeal as A.S.55 of 1996. The lower appellate court found that the trial court was not justified in coming to the conclusion that the plaintiff had no possession over the suit property and accordingly reversed the finding of the trial court and decreed the suit. 5. Notice is seen issued on the following questions of law: “1. In a suit for injunction simplicitor, is not possession of the property alone material and unless the plaintiff establishes possession as on the date of suit, should not the suit entail a dismissal, even assuming that the plaintiff has been able to trace title to the property? 2. When a decision rendered by a Court was taken up in appeal and when a compromise decree was passed in such appeal, will it not have the effect of effacing the decision of the trial court and does not the principle of merger apply in such circumstances. 3. When a decision rendered by a Court is taken up in appeal and when the said appeal S.A.466/1999. 4 culminates in a compromise decision, and when the decision of the former court thus merges with that of the latter court, can the decision of the former court be relied on for any purpose? 4. When a family arrangement or partition is under serious attack on various grounds including fraud, whether the existence of such family arrangement/partition by itself would be sufficient to uphold title and possession of the properties thereunder. 5. Is not the impugned decision vitiated by reason of misreading of the pleadings and the evidence? 6. Whether under the facts and circumstances, the impugned decree is sustainable?” 6. Learned counsel appearing for the appellants contended that the lower appellate court was not justified in reversing the judgment and decree of the trial court. The trial court had come to the conclusion that the plaintiff has miserably failed to establish his possession over the suit property. Being a suit for injunction, the only issue that S.A.466/1999. 5 arose for consideration was whether the plaintiff is in actual physical possession over the suit property as on the date of suit. Even assuming that they had title to the suit property as per Exts.A1 and A2, that will not be sufficient. Learned counsel for the appellants drew the attention of this court to Ext. C1 commission report which shows that there is no clear boundary separating the property of the plaintiff from adjacent properties. The commission report also shows that the properties are lying contiguously. It is therefore contended that the lower appellate court judgment and decree are unsustainable in law. 7. Learned counsel for the respondents contended that there may not be any confusion regarding the property obtained by each of the sharers as per Ext.A1 since a plan is appended to Ext.A1. Nobody has a case that the said plan is either wrong and the sharers, who had allotted with shares had not taken possession of the respective properties. The predecessor in interest of the defendants being a party to Ext.A1, it comes with little grace from the defendants S.A.466/1999. 6 now to say that the partition deed is not binding on them and it has no effect. In fact they conveyed a portion of the property allotted to them under the partition deed. The plea of fraud cannot be sustained because there was an earlier suit between the predecessor in interest of the plaintiff and defendants, in which the partition deed was put forward. That was a suit of the year 1974. If as a matter of fact the predecessor in interest of the defendant had any case that the partition deed is a fraudulent one, he could have taken steps to set it aside. Since that has not been done, there is no merit in the contention that Ext.A1 is not binding. Learned counsel also pointed out that the lower appellate court has considered the issue in the proper perspective and no grounds are made out to interfere with the finding of the lower appellate court. 8. Ext.A1 partition deed is the document of title of both the parties. The defendants have a contention that their predecessor in interest, who was illiterate, was defrauded by including the properties in his possession in S.A.466/1999. 7 the partition deed Ext.A1. They have a contention that the partition deed is not binding on them. 9. This contention, to say the least, is totally unacceptable. The predecessor in interest of the defendants namely Kunhikannan Nair was a party to Ext.A1 document of the year 1967. In 1974 there was a suit between the predecessor of the plaintiff and the predecessor in interest of the defendants. That was based on Ext.A1 partition deed. Therefore Kunhikannan Nair was fully aware of the fact that the properties covered by Ext.B1 were subject matter of the partition as per Ext.A1. Nothing was done by him in that regard. Further, the defendants are not enjoying the properties obtained by Kunhikannan Nair as per Ext.A1 partition. 10. There can be no difficulty in identifying the property allotted to each of the parties as per Ext.A1 since a plan is appended to the deed showing the shares allotted to each of the sharers. The trial court heavily relied on the commission report and plan to hold against the plaintiffs. S.A.466/1999. 8 The lower appellate court has considered this aspect in considerable detail and had come to the conclusion that the reliance placed on Exts.C1 and C2 is not justified. Of course, it is true that the plaintiff was not able to give complete details about the property, but the fact remains that he sued in respect of the properties obtained by him in the partition evidenced by Ext.A1 and an assignment deed from one of the sharers under the same deed. There is no case for the defendants that the properties in respect of which the suit is laid is not the property covered by Ext.A1. 11. It is also interesting to note that the plaintiff had filed objection to the commission report and had prayed that it may be remitted to the commissioner. The specific allegation is that commission report and plan are incorrect and contrary to the plan appended to Ext.A1. That does not appear to have been considered at all and the trial court relied on that report and plan. 12. As rightly noticed by the lower appellate court, there is no question of any crisis in the identity of the S.A.466/1999. 9 properties since as already noted, a plan is appended to the partition deed. There is no case for the defendants that the plan is either erroneous or the allocation is not as per the deed. The lower appellate court, in the facts and circumstances of the case, was therefore fully justified in accepting the principle that possession follows title in the peculiar facts and circumstances of the case. There is no justification to interfere with the finding of the lower appellate court, which is based on an appreciation of the evidence on record. The finding is essentially one of fact. No question of law, much less any substantial question of law, arises for consideration in this Second Appeal. This Second appeal is without merits. Accordingly, it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.