IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 FAO.No. 93 of 2005() ----------------------------- AS.117/2002 of I ADDL. DISTRICT COURT, PALAKKAD OS.242/1997 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S): RESPONDENTS/ DEFENDANTS ------------------------------ 1. THANOOJA D/O.RADHA AMMA, RESIDING AT LAKSHMI BHAVAN, VADAKKANTHARA AMSOM & DESOM, PALAKKAD TALUK. 2. THANKAPPAN NAIR, (WRONGLY SHOWN AS RAJAPPAN NAIR IN THE ORIGINAL SUIT AND APPEAL), RESIDING AT PORIYANIYIL, MUNDUR AMSOM AND DESOM, PALAKKAD TALUK. BY ADV. SRI.G.SHRIKUMAR RESPONDENT(S): APPELLANT/PLAINTIFF -------------------------- PRABHAKARAN, S/O.THEETHU, MANKARA AMSOM & DESOM, PALAKKAD TALUK, RESIDING AT AVANASSI TALUK, THIRUPUR, TAMILNADU. ADV. SRI.P.R.VENKETESH FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== FAO No.93 OF 2005 ===================== Dated this the 5th day of December 2008 JUDGMENT This first appeal is preferred against the judgment of the District Court, Palakkad in A.S.No.117 of 2002. The said appeal was preferred against the judgment and decree of the Munsiff's Court, Palakkad in O.S.No.242/1997. It was a suit for injunction which has been dismissed by the trial court and in appeal the learned District Judge set aside the judgment and remanded the case for fresh trial and disposal. It is against that decision, the present FAO is preferred. 2. Since it is obligatory on the part of the court to frame a substantial question of law even in an FAO, I frame the following substantial questions of law, viz., (1) Whether the learned District Judge in remanding the case had travelled beyond the scope of the suit by considering the question of title indirectly for the purpose of remand and (2) Whether the finding of the learned District Judge is vitiated under law. 3. Points 1 and 2: The suit is one for permanent injunction. The plaintiff claims right over the property by virtue of a sale deed of the year FAO 93/2005 -:2:- 1996. It relates to his anterior document of the year 1981. According to him, defendants attempted to trespass into the property on 3.4.1997 and therefore he has filed the suit for injunction. Defendants, on the other hand, would deny the averments in the plaint and would contend that the plaintiff has not obtained possession of the property on the basis of the documents claimed by him. Actually the property, as a part and parcel of the land, belonging to their predecessors and the plaintiff does not have any title over the plaint schedule property. 4.In the trial court PW1 and Dw1 were examined. Exts.A1, C1, C!(a), C2 and C3 were marked. The short point that has to be determined in a case of this nature is whether the plaintiff has succeeded in proving his case of possession on the date of the suit. The plaintiff is claiming his right under Ext.A1 document of the year 1996. He claims his right over 19 cents of property comprised in Sy.No.234/2. Defendants, on the other hand, would contend that this 19 cents of property forms a part and parcel of larger extent of property owned by Jameela and transferred in favour of somebody and it is a compact place and the plaintiff has not derived any title to or possession under Ext.A1. I am conscious of the fact that any pronouncement on the question of title will be detrimental to the case of the parties for the reason that the ultimate decision in the suit depends merely FAO 93/2005 -:3:- upon the fact whether the plaintiff has succeeded in proving his possession on the date of suit or not. We find a very considered judgment was written by the learned Munsiff. The learned Munsiff has pointed out that though the plaintiff alleges that he is in possession of the property he did not mount the box to give any evidence in support of his possession. The learned trial Judge also referred to a decision of the Supreme Court in AIR 1999 SC 1441. When a person claims possession of the property it is the paramount duty of him to prove the actual possession on the date of suit. Normally by examining his assignor, he may be able to establish the execution of the document by the assignor in his favour and it will not be a substitute for proof of possession. Thereafter the court below referred to the Commissioner's report and found that the Commissioner was able to find out that the properties claimed by defendants were lying as a compact compound and that he was not able to see any plot separately lying as 19 cents of property. It has to be remembered that it is the case of the defendants that the plaint schedule property is a part and parcel of a larger extent of property claimed by them and that the plaintiff has not obtained possession of any area claimed by him. The court below also found that the plaintiff did not have a case that he had put any barbed fence on any side of his property whereas the Commissioner was able to see the same. FAO 93/2005 -:4:- So, on a threadbare analysis of the materials, the trial court found that the plaintiff has not succeeded in proving his possession. The learned appellate Judge instead of looking into those aspects totally deviated and arrived at a decision that since defendants are not claiming any property in R.S.No.234/2, the plaintiff has got a case and therefore the matter requires reconsideration. It is not correct to hold that survey number governs the act of possession. Survey number, identification of the property, inclusion of the property in the title deed are all matters which may require consideration when a properly constituted suit on title is filed by the party. For deciding the question of possession in an injunction suit what the plaintiff has to do is to satisfy the court regarding the act of possession on the date of the institution of the suit. As found by the trial court it is totally lacking in this case. Therefore, there is no point in making the parties again fighting before the court referring to the documents for the reason that ultimately the result of the suit will depend upon the question whether the plaintiff is in possession of the property or not. The learned Munsiff had entered into a finding by giving cogent reasons that the plaintiff has not succeeded in proving the possession on the date of the suit. Therefore I find that the order of remand is unsustainable and it has to be set aside. I do so. The suit is liable to be dismissed. Therefore I confirm the judgment of the FAO 93/2005 -:5:- learned Munsiff. I make it very clear that the judgment rendered by the courts in this case would not have a binding effect on the question of title if the plaintiff wants to institute a regular suit on title with appropriate reliefs. It is a matter that has to be considered independently basing upon the materials available in that suit and submitted by both sides. With these observations, the FAO is allowed. M.N.KRISHNAN, JUDGE Cdp/-