IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 SA.No. 337 of 1995(F) -------------------- AS.182/1986 of ADDL.DISTRICT COURT,KOTTAYAM OS.108/1982 of MUNSIFF COURT, VAIKOM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------- CHAKKUNNI KURIAKOSE, VADAKKEKARA VEEDU, FROM KANIYAR KUNNEL IN VADAKARA MURI, VELLOOR VILLAGE, VAIKOM TALUK. BY ADV. SRI.K.REGHU KOTTAPPURAM RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. YOHANNAN CHACKO, MAMPALLIL VADAKARA MURI, VELLOOR VILLAGE, VAIKOM TALUK, KARIPPADOM 2. THOMAS KUTTOMPARAMPIL, EDAVATTOM MURI, KULASEKHARAMANGALAM VILLAGE, MARAVANTHURUTHU, CHEMPU BY ADV. SRI.LEGY ABRAHAM SRI.ROY THOMAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.884/95 IN S.A.337/95 DISMISSED 9/4/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 337 OF 1995 ------------------------------------------ Dated 9th April 2008 J U D G M E N T Plaintiff in O.S.108/1982 on the file of Munsiff court, Vaikom is the appellant. Defendants are respondents. Suit was for injunction. Appellant claimed possession of the plaint schedule property contending that the property belonging to him and on the north of the plaint schedule property is the property belongs to second respondent and though he applied for purchase of kudikidappu right, it was rejected by the Land Tribunal for the reason that he has 60 cents of the property and on the north of plaint schedule property there is a kallumadu and a mud wall and the properties belonging to second respondent was acquired by the Government as excess land and when the properties were measured for acquisition, three survey stones were planted along with the northern boundary prior to the institution of the suit and one of the stones was uprooted by first respondent and when the appellant attempted to cut an SA 337/95 2 anjili tree from the plaint schedule property, it was resisted by first respondent and respondents have no right to claim any portion of the plaint schedule property or to trespass into the property and so they are to be restrained by a permanent prohibitory injunction. 2. First respondent who was the original sole defendant in his written statement contended that appellant is not entitled to 76 cents in survey No.722/10 and the original defendant was residing as kudikidappukaran in entire property. When the properties were measured for acquisition, 10 cents of the properties around the homestead was separated and no boundary stones were planted or uprooted and on the western side of the property of respondent there is a survey stone. Anjili tree mentioned in the plaint was not within the plaint schedule property and it is standing within the property of the respondent and appellant is not entitled to a decree sought for. 3. Learned Munsiff on the evidence of Pws.1 and 2, Exts.A1 and A2, C1 to C3 and Dws.1 to 4 dismissed the suit holding that the dispute is with regard to the anjili tree and appellant did not establish his SA 337/95 3 possession of the disputed portion of the property and therefore he is not entitled to the decree for injunction sought for. Appellant challenged the judgment before Additional District court, Kottayam in A.S.182/1986. Learned District Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. Though notice was issued in the appeal no substantial question of law was formulated. 4. Learned counsel appearing for the appellant and first respondent were heard. 5. Suit is only one for injunction. No issue on title was framed and no finding on issue was also arrived at. Though the decree is in respect of the entire plaint schedule property, actual dispute is with regard to the portion of the property where the disputed anjili tree was standing. Question is whether appellant is in possession of the property or respondents are in possession of the property. Who is in possession of the property is a finding of fact. Trial court on appreciating the evidence found that appellant did not establish his possession of the disputed portion of the property. First appellate court on re-appreciation of SA 337/95 4 evidence confirmed that finding. Argument of the learned counsel appearing for appellant is that the finding arrived on the question of possession is not correct as the identification of the property made by the Commissioner in Ext.C3 plan and Exts.C1 and C2 reports were not properly appreciated. Argument of the learned counsel is that as Exts.C1 to C3 were not set aside, courts below should have granted a decree based on the identification made by the commissioner. Argument of the learned counsel could have been accepted, if the right is claimed based on title or the suit is based on title. Appellant did not even produce his title deed. Trial court rightly specifically found that question of title is not to be decided in the suit. Finding of the trial court on the question of possession is definitely a finding of fact. That finding of fact was confirmed by the first appellate court on reappreciation of evidence. Exercising the powers under Section 100 of Code of Civil Procedure, finding of fact cannot be interfered so long as that finding is based on the evidence on record. As stated earlier, when suit is only for injunction possession of the disputed portion of the plaint schedule property cannot SA 337/95 5 be decided based on the survey boundary. When courts below on appreciation of evidence found that appellant did not establish possession of the disputed portion of the property, he is not entitled to the decree for injunction sought for. I do not find any reason to interfere with the decree. No substantial question of law is involved in the appeal. Appeal is dismissed. Appellant is at liberty to institute a suit based on title. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 337/95 6 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.337 OF 1995 9th April 2008 ============================