IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 SA.No. 137 of 2003() -------------------- AS.31/1993 of DISTRICT COURT, KOTTAYAM O.S..162/1990 of MUNSIFF COURT, VAIKOM .................... APPELLANT(S): APPELLANT/PLAINTIFF ---------------------------------------------------------- SASTHAKULAM TEMPLE KUDAVACHOOR REPRESENTED BY ITS PRESENT MANAGER, N.ARAVINDAKSHA KAIMAL, SYAM BHAVAN, KUDAVACHOOR P.O., VAIKOM. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENTS/DEFENDANTS ----------------------------------------------------------------------- 1. CHELLAMMA, KATTEZHATHU HOUSE, KUDAVACHOOR KARA, VECHOOR VILLAGE. 2. VINDINI, DO DO DO 3. SWAMAKUMARI, DO DO 4. K.R.SUGUNAN @ SURENDRAN, DO DO DO 5. SHYLAKUMAR, DO DO DO 6. AJITHA, DO DO DO 7. ANILA, DO DO DO 8. DEEPA DO DO DO (1ST RESPONDENT IN THE APPEAL SUIT 31/93 IS NOR MORE. SO HER LEGAL HEIRS ARE IMPLEADED AS RESPONDENTS 2 TO 8) R2, R3, R5 TO R8 ADV. DR.K.B.SURESH FOR R1,2,3,5TO8 R4 BY ADV. SRI.M.N.MANMADAN THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... SA .NO.137 OF 2003 ............................................ DATED THIS THE 24th DAY OF MARCH, 2011 JUDGMENT The plaintiff in O.S.No.162 of 1990 on the file of Munsiff Court, Vaikom is the appellant. Respondent is the defendant. Suit was instituted seeking a decree for permanent prohibitory injunction contending that plaint schedule property originally belonged to Bhaskara Kaimal who mortgaged it to the appellant temple under Ext.A1 and under Ext.A2 assignment deed, it was assigned in favour of the appellant by Bhaskara Kaimal and since then, appellant has been in possession of the property and respondents have no manner of right or possession and respondent is attempting to trespass into the property and therefore respondent is to be restrained by a permanent prohibitory injunction. Respondent resisted the suit contending that appellant did not get possession of the property under Ext.A2 as under Ext.A1, the assignor could not transfer possession as the property was earlier transferred by the assignor of Ext.A1 under Ext.B2 gift deed. When Ext.B2 gift deed SA 137 OF 2003 2 was acted upon and accepted, the donor is not competent to cancel the same or assign it under Ext.A1 and as the appellant is not in possession of the property, appellant is not entitled to the decree sought for. 2. Learned Munsiff, on evidence of PWs 1 to 4 and DW1 and Exts.A1 to A6 and B1 to B7(g) dismissed the suit finding that appellant failed to prove possession of entire plaint schedule property. Appellant challenged the judgment before District Court, Kottayam in A.S.No.31 of 1993. Learned District Judge, as per judgment dated 26.8.1998 set aside the judgment of the trial court and remanded the suit for fresh disposal. The legal heirs of the original defendant challenged the judgment before this court in CMA No.210 of 1999. As per judgment dated 28.6.2000, this court remanded the first appeal to the District Court and directed to dispose of the appeal afresh giving findings on all the issues. Learned District Judge thereafter finding that as per the order of remand, the evidence is to be reappreciated to decide the question who is in possession of the plaint schedule property, found that the description of the plaint schedule property is 59 cents in Survey No.375/17A and 19 cents in SA 137 OF 2003 3 Survey No.375/17C and under Ext.B1 sale deed, 37 cents of property belongs to the deceased defendant in Survey No.375/17A and in such circumstances, without demarcating the said 37 cents of property and establishing that appellant is in possession of the property appellant is not entitled to the decree. Learned District Judge also found that to prove the possession of the plaint schedule property appellant examined PWs 1 to 4 and PW1 was the appellant and PW2, former President of NSS Karayogam and the evidence of PW2 disclosed that he has no knowledge about the extent of the property in the possession of the temple and evidence of PW3 shows that he was only 19 years old at the time of his examination and he cannot give evidence with regard to the matters which traversed earlier and his evidence cannot be believed and on the evidence on record held that appellants failed to establish that they are in possession of the plaint schedule property. The appeal was dismissed confirming the judgment of the trial court. This second appeal is filed challenging the judgment. 3. Notice was ordered before admission. Respondents appeared through their counsel. Learned counsel appearing for SA 137 OF 2003 4 appellant was heard. 4. The argument of the learned counsel is that being a suit for injunction, question is only regarding possession and even if the title of appellant is defective, if possession is established, appellant is entitled to the decree sought for. Learned counsel would argue that even if appellant had not taken out a commission, when there is dispute with regard to the identity, it is for the court to appoint a commission and suit cannot be dismissed for failure to identify the property and when the dispute is with regard to the boundary, it is for the court to fix the boundary by appointing a commission. 5. The appellant is claiming possession based on Ext.A1 sale deed. The plaint schedule property admittedly originally belonged to Bhaskara Kaimal and Devaki Amma. Bhaskara Kaimal by settlement deed 2114/1968 gifted 37 cents in favour of Gopalakrishnan. Ext.B2 establishes it. Gopalakrishnan by Ext.B1 transferred that property in favour of the deceased defendant. Bhaskara Karimal, cancelled Ext.B2, by the registered cancellation deed 2980/1968. It is thereafter on the same day Ext.A2 was executed. Therefore appellant could claim SA 137 OF 2003 5 possession of the 37 cents covered under Ext.B1, only if it is established that the gift in favour of Gopalakrishnan Nair under Ext.B2 was validly cancelled and the donor thereunder was in possession of the property. Even if Ext.B6 judgment will not operate as res judicata, as appellant is not a party to the suit, but his assignor was the second defendant in that suit, the judgment shows that the question of validity of the cancellation deed was considered and it was found that the earlier gift deed which was cancelled by registered cancellation deed 2980/68, had taken effect and possession was obtained by the donee. It was also found that portion of the property was transferred in favour of NSS by the donee. In such circumstances, based on Ext.A1 alone, appellant cannot claim possession of the property unless it is established that appellant is in possession of the plaint schedule property. 6. The question of possession is a finding of fact. Courts below did not accept the case of appellant that he is in possession of the entire plaint schedule property. Though it was argued that except the 37 cents of the property covered under Ext.B1, possession of the balance was not disputed and in such SA 137 OF 2003 6 circumstances, a commission should have been issued by this court and suit cannot be dismissed, in a suit for injunction, it is not for the court to fix the boundary. It is upto the plaintiff to take out a commission and establish the identity of the balance property in his possession. Without establishing it, appellant is not entitled to the decree. Hence dismissal of the suit is correct. If the dispute is with regard to fixation of boundary as canvassed by the appellant, appellant is entitled to get the boundary fixed in a proper suit. If suit is instituted for fixation of the boundary and part of the property is not in his possession, remedy is to seek a recovery of possession of that property based on title. No substantial question of law is involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk SA 137 OF 2003 7 M.SASIDHARAN NAMBIAR, J S.A.137 OF 2003 JUDGMENT 24.3.2011