IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 SA.No. 818 of 1997() ------------------------------ AS.24/1996 of SUB COURT, KASARAGOD OS.619/1992 of PRL.MUNSIFF, KASARAGOD .................... DEFENDANTS/ APPELLANT/APPELLANTS ------------------------------------------------------------ 1. RAMAKRISHNA PRABHU, SON OF LINGAPPA PRABHU, KARIMBILA, BADIADKA, PERDALA, KASARAGOD. 2. GOVINDA PRABHU, S/O. LINGAPPA PRABHU, KARIMBILA BADIADKA, PERDALA, KASARAGOD. 3. VASUDEVA PRABHU ALIAS BASA PRABHU, S/O. LINGAPOPA PRABHU, KARIMBILA, BADIADKA, PERDALA, KASARAGOD. 4. UPENDRA PRABHU, S/O. LINGAPPA PRABHU, KARIMBILA, BADIADKA, PERDALA, KASARAGOD. BY ADV. SRI.V.SIVASWAMY SRI.V.V.ASOKAN PLAINTIFF/ RESPONDENT/ RESPONDENT ------------------------------------------------------------- K.KESAVA PRABHU, S/O. SUBRAYA PRABHU, KARIMBILA, BADIADKA , PERDALA, KASARAGOD. BY ADVS. SRI.L.GOPALAKRISHNAN POTTI SRI.B.PURUSHOTHAMA BHAT SRI.DINESH RAO. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.818 of 1997-E ------------------------------------- Dated 23rd July 2010 Judgment An extent of 0.01 acres of land forms the subject matter of this litigation, which started in the year 1992. 2. The plaintiff's suit for injunction was decreed by the Trial Court and upheld by the Appellate Court. The aggrieved defendants have come up in appeal. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 3. The plaintiff claimed to be in absolute possession and enjoyment of plaint A and B schedule properties, having a total extent of 35 cents, on the basis of Exts.A1 and A2 sale deeds. It is pointed out that Plaint A and B Schedule plots lie contiguous to each other. Ever- since the execution of Exts.A1 and A2 deeds, the plaintiff claims to be in absolute possession and enjoyment of the plaint schedule property and has also made certain SA 818/97 2 improvements in the property. It is contended that the third defendant is one of the attestors to the sale deed by which Plaint A and B schedule properties were obtained by the plaintiff. It is stated that originally, the property obtained by him was a paddy field. He conceded that on the western side of the plaint schedule property, is the property owned by the third defendant. Earlier, the properties of the defendants were said to be paddy fields, which they had reclaimed and converted into areca garden. According to the plaintiff, the defendants have no manner of right over the entire 35 cents of property obtained by him under Exts.A1 and A2. The plaint states that out of the 35 cents, 33 cents are comprised in RS No.842/2A and the remaining extent of two cents is comprised in RS No.842/1. Plaint B schedule property is another strip of land, situated in the western side of the plaint A schedule property and in fact, it forms the boundary. 4. The plaint allegation is that on 21.09.1992, the defendants trespassed into plaint B schedule property SA 818/97 3 and attempted to pluck coconuts from the coconut trees standing there. The timely intervention of the plaintiff's children prevented commission of mischiefs by the defendants. Apprehending further trespass into the property, the suit was laid. 5. The suit was resisted by the defendants, pointing out that the boundaries of plaint A schedule property are shown in the plaint incorrectly, with ulterior motives. It is disputed that the plaint A and B schedule properties are lying contiguous to each other. According to them, the plaintiff has no manner of right over plaint B schedule property. It is contended that even before the registration of Exts.A1 and A2 sale deeds in favour of the plaintiff, the defendants were in possession of plaint B schedule properties as cultivating tenants and they had made considerable improvements to the property. The contention of the plaintiff that plaint A schedule property extends into plaint B schedule property, was denied by the defendants. According to them, the property of the plaintiff SA 818/97 4 is confined to RS No.842/2A and he had no property under any other survey number. Pointing out that the plaintiff is not entitled to any reliefs, the defendants prayed for dismissal of the suit. 6. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3(b) from the side of the plaintiff. The defendants examined DW1 and had Exs.B1 to B6(a) marked. Ext.C1 is the Commissioner's report and Ext.C2 is the plan prepared by him. 7. On a consideration of the evidence before it, the Trial Court found that Plaint B schedule property, which has an extent of 2 cents, lies contiguous to the plot owned by the plaintiff and lies distinct and separate from the property owned by the defendants on the western side. Holding that in all probability, the plaint schedule properties must be in the possession of the plaintiff, the suit was decreed in his favour. SA 818/97 5 8. The defendants carried the matter in appeal. The lower Appellate Court, on an independent consideration of the evidence, found that the plaintiff had both title and possession over plaint schedule properties and confirmed the judgment and decree of the Trial Court. The said concurrent findings are assailed in this Second Appeal. 9. The following questions of law are seen formulated in this appeal : a) Can an injunction against trespass be granted at the instance of one in illegal possession against the defendants who are the owners of the property in dispute ? b) Is it proper to construe a boundary described in the document as part of the property assigned under the document ? c) Were the courts below justified in holding that the plaintiff is in possession of the suit property in the face of the evidence afforded by Exts.A1 SA 818/97 6 and A2 ? d) Were the courts below justified in ignoring the title of the defendants to the suit property in the light of the documentary evidence afforded by Exts.B1 to B3 ? e) Should not have the Trial Court frame an issue regarding title to the plaint B schedule property and has not such failure on its part to frame such an issue really caused prejudice to the defendants in their defence ? f) Should not have the Trial Court frame an issue regarding title to the plaint B schedule property and has not such failure on its part to frame such an issue really caused prejudice to the defendants in their defence ?” 10. The learned counsel for the appellants vehemently contended that the courts below have erred both on facts and and on law, in decreeing the suit. According to the learned counsel, the burden was heavy on SA 818/97 7 the plaintiff to prove that plaint B schedule property belongs to him and is in his possession. Emphasis was laid on the fact that even going by the plaint averments and the documents, the properties of the plaintiff are confined to Survey No.842/2B and the plaintiff has no property in any other survey number. Admittedly, one cent of land located by the Commissioner is comprised in Survey No.842/1. 11. The plaintiff never had a case that he had never acquired any property in that Survey number. On the other hand, his case was that the property situated on the western side of the plaint A schedule property belongs to the defendant. So also, it is pointed out that the property owned by the plaintiff is a patta land whereas the one cent located by the Commissioner is in the nature of a paramba. Attention was drawn to the fact that the property on the further west is an areca garden. Therefore, in all probability, the one cent located by the Commissioner must be the property owned by the defendants, it is contended. SA 818/97 8 12. The learned counsel for the respondent, on the other hand, pointed out that both the plaintiff and the defendants purchased the respective properties from the very same vendor, the plaintiff being the prior purchaser. It is clear from the documents that what was intended to be sold to him was 35 cents of land and since emphasis was laid on the extent of land, the said discrepancy in the resurvey number may not be relevant. It is also pointed out that the defendants made no attempt to have their property measured and to show that the one cent of land located by the Commissioner on the eastern side of the property owned by the defendants, belongs to them. Going by the Commissioner's report as well as the other items of evidence, according to the learned counsel for the respondent, it is clear that the one cent located by the Commissioner belongs to the plaintiff. Attention was also drawn to paragraph 9 of the written statement. 13. As already stated, the extent of property involved in this matter is only 1 cent. One may have a look SA 818/97 9 at the Commissioner's report and plan to understand the nature of the dispute. Plaint A schedule property admittedly belongs to the plaintiff. The paddy field which has an extent of 0.34 acres is shown in yellow shade and the blue marked portion is an areca garden comprised in Survey No.842/1. In between the paddy field and areca garden, there is a narrow strip of land which has an extent of 0.01 acres which is marked in green colour, comprised in RS No.842/1. The Commissioner's report says that a bund, which was seen in a destroyed condition, was used for controlling the flow of water. The Commissioner has also noticed that the property owned by the defendants lies at a different level i.e., the one cent of property which is located by the Commissioner and shown in green shade in the plan. It is true that the plaintiff lays claim on the property comprised in RS No.842/1. But, it must be noticed that both the courts below found that the one cent of land located by the Commissioner lies contiguous to the plot owned by the plaintiff. SA 818/97 10 14. As rightly pointed out by the learned counsel for the respondent in this appeal, in paragraph 9 of the written statement, the specific contention taken by the defendants is that their property is situated on the western side of the bund and on the western side of the property owned by the plaintiff. If that be so, the Commissioner's report clearly shows the location of one cent of property which lies contiguous to A schedule property. 15. It is here that the lower Appellate Court found a deficiency in the evidence adduced by the defendants. The lower Appellate Court observed that there was no attempt from the side of the defendants to get their property measured and to show that the one cent located by the Commissioner forms part of their property. It was also observed that the total extent of 35 cents was conveyed to the plaintiff by a common vendor. The lower Appellate Court came to the conclusion that even though there is a difference in the survey number shown in the Commissioner's report and plan, that is of little significance SA 818/97 11 when compared to the extent of property sold to the plaintiff. The lower Appellate Court has also noticed that the purchase of land by the defendants was long after the assignment of lands in favour of the plaintiff. 16. Considering the above facts, it could not be said that the courts below were not justified in decreeing the suit in favour of the plaintiff. The fact that there is level difference between the property owned by the plaintiff and the defendants and the fact that the one cent of property located by the Commissioner lies contiguous to the plots owned by the plaintiff and various other aspects show that the one cent of property located by the Commissioner must be a portion of the property obtained by the plaintiff under Exts.A1 and A2. Moreover, the finding is purely one on facts. There is no substantial question of fact thrown up for consideration in this appeal. It is not shown that the findings of the lower Appellate Court are either perverse or unwarranted by the evidence on record. It is certainly a plausible view. If that be so, this Court will not be justified in SA 818/97 12 interfering with the said view, under S.100 CPC. This Second Appeal is without merits and ti is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA 818/97 13