IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 SA.No. 288 of 1997(A) --------------------- AS.50/1993 of SUB COURT, PAYYANNUR OS.158/1992 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT/RESPONDENT/DEFENDANT: ------------------------------------------- KOLANGARAKATH PURAYIL LAKSHMANAN, S/O. SREEDHARAN, AGRICULTURIST, PARIYARAM AMSOM IRINGAL DESOM, P.O POYYIL, TALIPARAMBA, CANNANORE DT. BY ADV. MR.K.V.SOHAN RESPONDENTS/APPELLANTS/PLAINTIFFS: --------------------------------------------- 1. VALIYAPURAYIL KELU PANICKER, (DIED) S/O.DERMAN PANICKER, HOUSE NO.69, PARIYARAM AMSOM, IRINGAL DESOM, CANNANORE DT. 2. VALIYAPURAYIL SREEDEVI (DIED) D/O.CHANDU PERUMALAYAN, -DO- -DO- *3. NANI, S/O.LATE KELU PANICKER, VALIYAPURAYIL, P.O POYYIL, PARIYARAM - 670502 *4. KELU, S/O. -DO- -DO- *5. PARVATHI, D/O. -DO- -DO- *6. KRISHNAN, S/O. -DO- -DO- *7. VANAJA, D/O. -DO- -DO- *8. BALAN, S/O. -DO- -DO- *9. CHANDRAN, S/O. -DO- -DO- *ADDL. RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED RESPONDENTS 1 & 2 AS PER THE ORDER DATED 16.02.2010 IN I.A.NO.1115/2008. ADV. MS.VIDHYA. A.C FOR SUPP.R3-9 MR.A.C.VENUGOPAL FOR SUPPL.R3-9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.288 Of 1997 ---------------------- Dated this the 13th day of July, 2010. J U D G M E N T The defendant in O.S.No.158 of 1992 on the file of the Munsiff Court, Thaliparamba is the appellant. Suit was filed for perpetual injunction restraining the defendant from trespassing in to plaint A schedule property and alternatively prayed for recovery of possession of 35 cents. Trial court dismissed the suit. The lower appellate court reversed the findings and granted a decree for perpetual injunction. Parties are hereinafter referred to as the plaintiffs and defendant as arrayed in the suit. 2. Plaintiffs claimed title and possession over the plaint schedule property. According to them they obtained the property on an oral lease in 1956 from Narikkott illam. Plaintiffs effected several improvements in the property. The Land Tribunal issued patta in the year 1975. The suit was filed on the allegation that on 10.3.1992 the defendant and his supporters trespassed into the property and cremated a dead body on the northern side of the plaint A schedule property. The northern side of the plaint A schedule property is described as plaint B schedule property. It S.A.No.288 Of 1997 ::2:: is further averred that the defendant and his supporters attempted to mark the boundary in the plaint B schedule property to the burial ground which lies on the immediate north of plaint A schedule property. 3. The defendant denied the plaint averments and prayed for dismissal of the suit. He denied the averment that he committed trespass in to the property and cremated a dead body on 10.3.1992. According to the defendant the thiyya community is in possession of 1.40 acres of land in R.S.No.52/1 and the said property is being used as a burial ground and the plaintiffs have not right over the said property which exclusively belongs to the thiyya community. 4. The parties adduced oral and documentary evidence. A commissioner was deputed to identify the property. The total extent scheduled as plaint A schedule property is 1.75 acres. The commissioner filed Ext.C1 report and C2 plan. The commissioner has marked plots A, B, C, D & E in C2 plan. Plots A & C are now portions of Panchayath road. Plot B admittedly is in the possession of the plaintiffs. The plaintiffs are residing in the S.A.No.288 Of 1997 ::3:: house situated in plot B. Plot D is on the north of C and south of E. Plaintiffs claimed title and possession over plots A, B, C & D and 35 cents of land in plot E. The total extent of plots A, B, C & D is 1.50 acres. Plot E is having an extent of 1.15 acres. Plaintiffs claimed title and possession over 1.75 acres. One of the reasons stated by the trial court for dismissing the suit is that the total extent of the land scheduled in the plaint is 1.75 acres, but the commissioner found that plots A, B, C, D & E together is only 1.50 acres. The trial court held that the though plaintiffs have got title over 1.75 acres taken part in plot E, it is not proved up to which point in plot E is the plaintiffs' extent. Another reason stated by the trial court is that there is an association by name Smasana Samrakshana Samithy. The plaintiffs have not impleaded the said Samithy as a defendant. 5. The appellate court examined the materials on record. The appellate court decreed the suit for the following reasons. (1) Plots A, B, C & D marked is found to be plaint A schedule property. (2) The red line pointed out as a demarcating boundary between the plots D & E was fixed as the S.A.No.288 Of 1997 ::4:: boundary line between the properties of the plaintiffs and defendant as per the lie and position of the respective properties. The red line shown as boundary between plots D & E is accepted by the lower appellate court for the reason that the remaining portion was taken possession by Thiyya community as burial ground. (3) The report of the commissioner was relied on by the lower appellate court which would go to show that the plaintiffs are in possession of the plots A, B, C & D. The plaintiffs have been paying revenue for the 1.75 acres of land. The commissioner reported that the entire western boundary of plot D is bounded by compound wall on the west and this compound wall does not extent further north which is the western boundary of plot E. The learned Sub Judge observed that it is an indication of the fact that the plaintiffs are in possession of the plot D as well. (4) The commissioner reported that several improvements like coconut tree, cashew tree, tamarind tree, thanni etc. are in plot D and that plot D & E are slanting towards south. After noting the improvements the lower appellate court held that the nature of the improvement give an indication of the fact that the plaintiffs are in possession of plots C & D S.A.No.288 Of 1997 ::5:: and they have effected improvements in the entire plots B & D. The above mentioned facts are taken by the appellate court which probabilise the case of the plaintiffs that plot D is also in the possession of the plaintiffs. 6. The lower appellate court relied on the commission report. Commissioner found only one body having been buried. The one dead body buried is almost in the northern boundary of plot D. The lower appellate court also took note of the pleadings in the plaint. The defendant and others cremated dead body in their property. The court held that the report of the commissioner justified the allegation made by the plaintiffs. Commissioner noted that partly burnt firewood and a mud ridge were found on the northern boundary of plot D. The lower appellate court re-appreciated the facts, evidence and circumstances and concluded that the plaintiffs are in possession of plots B & D. The lower appellate court also held that the denial of relief to the plaintiffs by the trial court on the ground that the plaintiffs failed to identify 1.75 cents is not justified. The present suit is a suit for injunction. Though the plaintiff was not S.A.No.288 Of 1997 ::6:: able to prove possession over the entire extent covered by their title deed namely, Ext.A1, the plaintiffs were able to prove that they are in possession of the properties identified by the commissioner as plots B & D. The lower appellate court rightly held that there is no justification for the trial court in denying a decree to the plaintiffs stating that the Samithy is not made a party. The reasons stated by the trial court for dismissing the suit are found to be not valid. The reasons stated by the lower appellate court are based on facts, evidence and circumstances. This Court finds that the appellant has not made out any valid grounds to interfere with the findings of the lower appellate court. No question of law muchless any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-