IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 RSA.No. 32 of 2005(D) --------------------- AS.180/2002 of ADDL.DISTRICT COURT, THRISSUR .................... APPELLANTS ------------------------------ 1. JOSE,S/O. KARAMKARIPARAMBIL THOMAS, VADAKKETHARA VILLAGE,THALAPPILLY TALUK. 2. LISA,D/O.KARUVARAMTHADATHIL ANTONY PAPPACHAN,W/O. JOSE,RESIDING -DO- BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.VINOD RAVINDRANATH RESPONDENT(S): ------------------------------ PETER MANIKUTTY, S/O.MANIKUTTIVEETTIL KURIAN, VADAKKETHARA VILLAGE,THALAPUZHA TALUK. ADV. SRI.V.M.KURIAN FOR R1 SRI.A.V.THOMAS FOR R1 SRI.MATHEW B. KURIAN FOR R1 SRI.K.T.THOMAS FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.32 of 2005 = = = = = = = = = = = = = = Dated this the 30 th day of October, 2008 JUDGMENT The plaintiffs in O.S.No.264 of 1998 on the file of the Subordinate Judge's Court, Thrissur, are the appellants in this second appeal. The said suit was one for perpetual injunction restraining the defendant from trespassing upon the plaint schedule property described as having an extent of 1 acre 20 cents. According to the plaintiffs, who are husband and wife, they are in possession of the plaint schedule property pursuant to Ext.A1 sale deed dated 19.4.93 in favour of the 1st plaintiff and they have paid the tax in respect of the 1 acre 20 cents. 2. The defendant who is in charge of a Christian Congregation by name 'Norbertine Fathers” resisted the suit contending, inter alia, that the plaintiffs have neither title nor possession over the disputed portion identified as plot DCBF in Ext.C3(a) plan and that the plaintiffs are in R.S.ANo. 32 of 2005 2 possession only up to the line CB in Ext.C3(a) plan and their claim that they are in possession of the land up to the line DF is not correct. The defendants had also contended that after the plaintiffs obtained an ex-parte injunction, the plaintiffs had put up a barbed wire fence along the line DF. 2. On the side of the plaintiffs, Exts.A1 to A15 were marked and four witnesses were examined as PWs.1 to 4 of whom PW3 is the Advocate Commissioner. On the side of the defendant Exts.B1 to B13 were marked and 7 witnesses were examined as DWs.1 to 7 of whom DW4 is none other than the assignor of the 1st plaintiff under Ext.A1. 3. The learned Subordinate Judge, after trial, as per judgment and decree dated 11.12.2000 dismissed the suit. On appeal preferred by the plaintiffs as A.S.No.180 of 2002 before the District Court, Thrissur, the lower appellate court has dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this second appeal. R.S.ANo. 32 of 2005 3 4. The learned Senior Advocate appearing for the appellants/plaintiffs made the following submissions before me in support of the appeal:- Ext.C1, although an ex parte report obtained at the instance of the plaintiffs, will categorically show the existence of a reasonably old barbed wire fence along the line DF in the plan and this will clearly indicate that the southern boundary of the plaint schedule property is not along the line CB as contended by the defendant. The defendant has no case that the plaintiffs had deliberately put up the barbed iron fence along the line DF. This coupled with the subsequent reports submitted by the Advocate Commissioner namely Exts.C2 and C3 will go to show that while plaintiff's property on the north is slopping from north to south and the same topography is to be found in the disputed portion also, the southern property of the defendant slopes from east to west. The subsequent reports of the Commissioner will clearly show that there was a R.S.ANo. 32 of 2005 4 deliberate act on the part of the defendant to obliterate the evidence noted under Ext.C1 by removing the barbed wire fence along the line DF. When the plaintiffs have been shown in possession of the property upto the line DF (which is the southern extremity of the plaint schedule property) as on the date of institution of the suit, the courts below ought to have given due weight to the same. The suit was for perpetual injunction simplicitor and reliance placed on the state of affairs brought into existence after the visit of the ex parte commission should not have been made. This is a case where the 1st report of the Advocate Commissioner has been clearly overlooked by the courts below. A wrong appreciation of evidence also gives rise to an error of law justifying interference in second appeal. 5. I am afraid that I cannot agree with the above submissions. It is true that on 3.5.98 when the ex parte commission visited the property he noted the existence of the barbed wire fence along the line DF which runs east- R.S.ANo. 32 of 2005 5 west parallel to the line CB. But then the defendant had a definite case that this was stage managed by the defendants on the eve of filing the suit. The courts below have accepted the said case of the defendant and has considered various facts and circumstances to finally conclude that the plaintiffs have failed to prove their possession of the disputed portion CBFD on the date of the suit. 6. Following are the factors taken into account by the courts below:- i). While Ext.A1 sale deed dated 19.4.93 in favour of the 1st plaintiff shows the extent as 1.20 acres, the previous title deed Ext.A3 dated 11.5.92 would go to show that the plaintiffs' assignor had only 1 acre of land. This was reinforced by the testimony of DW4 who is none other than the plaintiff's assignor who deposed before the court that he had assigned only 1 acre of land to the plaintiff and that he did not measure the property at that time. ii) The difference in age of the rubber trees in the R.S.ANo. 32 of 2005 6 disputed plot and the northern property of the plaintiff as well as the same age of the rubber trees in the southern property of the defendant as those in the disputed plot was clearly noted by the Commissioner. iii) While the rubber trees in the defendant's property on the south and the rubber trees in the disputed plot were in line, the rubber trees in the northern property in the possession of the plaintiff were not in line with the said rubber trees. iv) While the rubber trees found in the disputed plot and the southern plot of the defendant were of the same age, the rubber trees situated in the property of the plaintiffs to the north of the line CB were of lesser age. v) The presence of bean cultivation in the disputed plot as well as in the southern property of the defendant and the absence of the same cultivation in the property lying to the north of disputed plot CBFD, probabilised the case of the defendant. R.S.ANo. 32 of 2005 7 vi) The admission by the 2nd plaintiff before the congregation of Fathers in Ext.A1 application to the effect that eventhough she had purchased 1 acre 20 cents as per Ext.A1 the congregation was in possession of a portion of her property, falsified the plaintiffs' case. vii) The similar type of markings found on the trees in the disputed plot as well as in the southern property of the defendant in contra distinction with the absences of such markings on the rubber trees in the property to the north of the line CB would also improbabilise the plaintiffs' case. 7. It was after considering all the above facts and circumstances that the courts below came to the conclusion that the plaintiffs had failed to prove possession of the disputed portion namely plot DCBF on the date of the suit. It is a pure finding of fact. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in R.S.ANo. 32 of 2005 8 this second appeal which is accordingly dismissed in limine. 8. It is needless to mention that the observations regarding the title of the plaintiffs were made only incidental to the finding regarding the possession and the findings and observations regarding the title may not be taken as binding in as much as the suit was only for injunction simplicitor and no court fee had been paid under section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959. Dated this the 30th day of October, 2008. V. RAMKUMAR, JUDGE sj