IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 SA.No. 758 of 1997(F) -------------------------- AS.45/1992 of III ADDL.SUB COURT, KOZHIKODE OS.440/1986 of ADDL.MUNSIFF COURT,KOZHIKODE-II .................... APPELLANT(S): RESPONDENT/PLAINTIFF ------------------------------------------------ M.P.BALACHANDRAN, AGED 39 YEARS, S/O. KANNAN NAIR, KUNNAMANGALAM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S):APPELLANT/PLAINTIFF ------------------------------------------------ 1. AMBALAKANDIYIL UNICHOYI (DEAD) AGED 71, S/O.CHERIYAKKAN, KUNNAMANGALAM AMSOM AND DESOM, KOZHIKODE TALUK. 2. JANARDHANAN A., AMBALAKANDIYIL, CHETTUKAVU P.O., KUNNAMANGALAM, KOZHIKODE. 3. A.SADANANDAN, AMBALAKANDIYIL, CHETTUKAVU P.O., KUNNAMANGALAM, KOZHIKODE. 4. A. GOPALAN, AMBALAKANDIYIL, CHETTUKAVU P.O., KUNNAMANGALAM, KOZHIKODE. 5. A. BABU, AMBALAKANDIYIL, CHETTUKAVU P.O., KUNNAMANGALAM, KOZHIKODE. ADDITIONAL 6. A. SREEMATHY, (LEGAL REP. OF R1) W/O. A. SURENDRAN, ACHAMVEETTIL, P.O. POOCHATTU PARAMBU, KOZHIKODE. svs .........2/-... ...2... SA.No. 758/1997(F) 7. A. THANKAM (LEGAL REP. OF R1) W/O.CHANDUKUTTY, KUZHIKKARAM KUZHIYIL P.O., NANMANDA, KOZHIKODE. 8. A. MALATHI (LEGAL REP. OF R1) AMBALAKANDIYIL, CHETTUKAVU, KUNNAMANGALAM, KOZHIKODE. 9. A. RAMANI, (LEGAL REP. OF R1) W/O. RAVEENDRANATH, MELARPOYIL P.O., VELLI PARAMBU, KOZHIKODE ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------------- S.A.No.758 of 1997 --------------------------------- Dated this the 31st day of January, 2011 JUDGMENT The plaintiff in O.S.No. 440/1986 before the Munsiff's Court, Kozhikode-II, who was non-suited by lower appellate court is the appellant. 2. The plaintiff is in possession and enjoyment of the plaint schedule property. There is a compound wall on the western side of the plaint schedule property. The adjacent land on the western side of the plaint schedule property belongs to the defendant. The above compound wall separates the plaint schedule property from the defendant's property. There is an old jack tree standing in the plaint schedule property on the western side adjacent to the compound wall. On 18.06.1986 defendant demolished a portion of the compound wall and made attempts to take possession of the jack tree. Hence the suit for prohibitory and mandatory injunction. 3. Defendants resisted the suit by pointing out that they have not demolished any portion of the compound wall belonging to the plaintiff. The compound wall collapsed due to passage of time. The jack tree referred to in the plaint is also standing in the defendants property. Therefore, they prayed that the suit may be dismissed. S.A.No.758 of 1997 2 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Ext.A1 from the side of the plaintiff. DW1 was examined from the side of the defendants. Exts. C1 and C2 are the commission report and plan. 5. Based on the evidence available in the case, the trial court came to the conclusion that the plaintiff is in actual possession of the property and he is entitled to have his possession protected. The trial court decreed the suit. However, the prayer for a mandatory injunction as well as damages were disallowed. 6. Defendants carried the matter in appeal as A.S.No.45/1992 before the Sub Court, Kozhikode. The lower appellate court reversed the judgment and decree of the trial court and dismissed the suit. Hence the Second Appeal. 7. Notice has been issued on the following substantial questions of law: 1. Whether injunction order can be passed against the defendant, if the plaintiff is able to prove that, he is in legal possession of the property. 2. Whether the principle laid down by the Honourable Supreme Court in Premji Ratansey Shah and other Vs. Union of India and others (1994(5) SCC 547) is applicable in the present case. S.A.No.758 of 1997 3 8. The learned counsel appearing for the appellant contended that the lower appellate court was not justified in reversing the finding of the trial court and is based on conjunctures and surmises. 9. The defendants property is situated towards the west of the plaint schedule property and that there is a compound wall separating the plaint schedule property from the defendants property. It is further stated that the defendants have no right over the plaint schedule property situated on the east of the compound wall. The lower appellate court found that the plaintiff had failed to prove his title to the compound wall and therefore, is not entitled to any relief. According to the learned counsel, the finding is perverse and there was no justification for interfering with the trial court decree. 10. Per contra, the learned counsel for the respondents contended that from the commissioner's report and sketch, it is clear that the disputed wall as well as the jack tree are situate in the property comprised in survey No.445/2A1, which belongs to the defendants. The lower appellate court dismissed the suit mainly on the basis that the evidence before the court would show that the plaintiff did not have title to the disputed property. 11. It is here that one has to remember that the suit is one for injunction simplicitor. The defendants have specifically stated in their written statement that they had no intention to interfere with the compound wall put up by the plaintiff. The trial court has also relied S.A.No.758 of 1997 4 on the deposition of DW1 where he has admitted that he has no right over the wall or land situated on the east of the wall. Moreover, the court has found that the northern end of the wall extends only till the north-western corner of the plaintiff's property and the disputed wall does not extend till the northern end of the of defendants property. Towards south the disputed wall extends beyond the defendants property. Title document was necessary only if the defendant had disputed that the compound wall had been put up by the plaintiff. It is conceded that the compound wall belongs to the plaintiff. Under such circumstances one fails to understand as to how the lower appellate court had non suited the plaintiff. 10. The learned counsel for the appellant is justified in the circumstances there was no justification for the lower appellate court to upset the decree of the trial court. The conclusion that was possible on the basis of evidence available was that plaintiff was in possession the disputed portion. Therefore, this appeal is allowed, the impugned judgment and decree are set aside and judgment and decree of the trial court are restored. P.BHAVADASAN, JUDGE. ln