IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 SA.No. 130 of 1995(F) -------------------- AS.106/1989 of D.C & SESSIONS COURT,TRIVANDRUM OS.490/1983 of Ist ADDL.M.C.,TRIVANDRUM .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------- PONNAMMA VASUNDHARA AMMA ELLUVILA PUTHEN VEEDU, VATTIYOORKAVU, RANDAMADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.KESAVAN NAIR SRI.P.BENNY THOMAS RESPONDENTS/APPELLANTS/DEFENDENTS: ------------- 1. BHAGAVATHY AMMA RAJAMMA, KOTTAKKONAM PUTHEN VEEDU, THIRUMALA, ARAMADA VILLAGE, THIRUVANANTHAPURAM. 2. RAJAMMA AMBIKAKUMARI AMMA, ELLUVILA PUTHEN VEEDU, NEAR VAYALIKKADA MUKKU, VATTIYOORKAVU, RANDAMADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.SUBHASH CYRIAC THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA NO.130/1995 ORDER ON CMP NO.395 OF 1995 IN SA NO.130 OF 1995 DISMISSED SD/- 11.3.2008 M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S. TO JUDGE JP M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 130 OF 1995 ............................................ DATED THIS THE 11th DAY OF MARCH, 2008 JUDGMENT Plaintiff in O.S.490 of 1983 on the file of Munsiff Court, Thiruvananthapuram is the appellant. Defendants are the respondents. Appellant instituted the suit for permenent prohibitory injunction, restraining respondents from trespassing into the plaint schedule property and to put up a boundary separating the property of appellant and respondents. Plaint schedule property is 20 cents in Survey No.2131/1 of Randamada Village. According to the appellant, plaint schedule property originally belonged to Kesava Pillai and on his death it devolved on his daughter, the mother of appellant, who executed a mortgage in respect of 50 cents in 1119 ME in favour of Divakaran Nadar and later he released the mortgage right and the mother executed a sale deed in respect of 20 cents of the mortgaged property to Divakaran Nadar and the remaining 30 cents has been in the possession of mother of the appellant and while so, he executed Ext.A1 gift deed in respect of the plaint schedule property and put her in possession and the remaining 10 cents was transferred to the sister of the mother and SA 130/1995 2 appellant has been in possession of the property since then. It was contended that 25 cents of the property adjacent to the western side of the property is now in the possession of respondents and there is no specific boundary separating the property of appellant and respondent and with a view to reduce the plaint schedule property into her possession, first respondent instituted O.S.11 of 1991, which was dismissed and thereafter respondents attempted to trespass into the plaint schedule property and they have no right to do so and therefore appellant is entitled to a decree for injunction and also entitled to put up a boundary separating the two properties. Respondents in their written statement contended that the property belonged to Narayana Pillai and not Kesava Pillai and in 1110 ME, Narayana Pillai executed a gift deed in favour of Bhagavati Amma, the grandmother of the appellant and mother of respondents and Bhagavati Amma executed a settlement deed in favour of her seven children in 1117 ME and the mother of appellant was alloted 50 cents on the north of the property and first respondent was alloted 50 cents as C schedule on the south of the property alloted to the mother of the appellant and description of the plaint schedule property is not correct and appellant has no right over the plaint schedule property and she is not entitled to SA 130/1995 3 the decree sought for. It was contended that though O.S.11 of 1981 was filed, A.S.14 of 1983 filed against the judgment is pending and respondents have no property on the west of the property of appellant. 2. Learned Munsiff, on the evidence of PWs 1 & 2, Ext.A1, B1 and B2, C1 and C1(a), found that O.S.11 of 1981 filed by first respondent was dismissed under Ext.B1 judgment and plaint schedule property was identified by the Commissioner in Ext.C1 report and C1(a) plan and Ext.A1 establishes that appellant obtained the plaint schedule property, which is marked by the Commissioner as plot ABCF in Ext.C1(a) plan and appellant is in possession of that property and she is entitled to put up a boundary separating the said property and respondents are not entitled to trespass into the property. The suit was decreed. Appellant was permitted to put up a boundary on the western side of the property and respondents were restrained by a permanent prohibitory injunction from trespassing into that property. 3. Respondents challenged the judgment before District Court, Thiruvananthapuram in A.S.106 of 1989. Before the first appellate court, defendants, appellants in the first appeal, produced the certified copy of the judgment in A.S.114 of 1993 SA 130/1995 4 setting aside Ext.B1 judgment of the trial court. It was received as additional evidence and marked as Ext.B3. Learned Additional District Judge, finding that plaint schedule property in O.S.11 of 1981 is in respect of the very same plaint schedule property in this suit, found that in view of Ext.B3 judgment, appellant is not entitled to the decree. The appeal was allowed and suit was dismissed. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1)Whether in a suit for injunction court can dispose the suit without considering the question of possession. 2)Whether in a suit where title and possession of plaintiff is not disputed, court is justified in dismissing the suit. 3)Whether first appellate court is justified in ignoring the evidence showing the location of the property and possession. 5. Though respondents originally appeared through a counsel, when appeal was taken up for argument, there was no representation for respondents. Learned counsel appearing for appellant was heard. Appellant has produced copy of the decree in O.S.11 of 1981, along with I.A. 317 of 2008, an application under Rule 27 of Order XLI of Code of Civil Procedure to receive the same as additional evidence, contending that the said decree SA 130/1995 5 will show that the suit property in O.S.11 of 1981 is different from the plaint schedule property in the present suit. Learned counsel argued first appellate court, without considering the crucial question whether O.S.11 of 1981 is in respect of the plaint schedule property herein or in respect of a different property, set aside the finding of the trial court when in fact the decree in O.S.11 of 1981 establish that the properties are different. Learned counsel argued that even as per the written statement, mother of appellant has 50 cents as per the settlement deed executed by Bhagavati Amma and so first appellate court was not justified in holding that appellant has no property. It was argued that though respondents in the written statement contended that plaint schedule property was obtained by first respondent under settlement deed executed by Bhagavati Amma in 1117, that settlement deed was not produced and no attempt was made to get the property identified with reference to the said settlement deed to prove 50 cents of the property, which according to respondents belong to the mother of appellant, is not the plaint schedule property. It was also argued that though the Commissioner identified the plaint schedule property and submitted Ext.C1 report and C2 plan, the Commissioner was not examined and no evidence was adduced SA 130/1995 6 by respondents to prove that identification made by the Commissioner is not correct. It was also argued that respondents did not adduce any oral evidence and the only evidence adduced is Ext.B1 judgment in O.S.11 of 1981 and the deposition of the appellant in that suit and on the evidence, first appellate court was not justified in reversing the decree granted by the trial court. 6. Ext.A1 shows that appellant obtained 20 cents of property gifted to her by her mother in 1970. The case of the appellant was that since the date of Ext.A1 gift deed, she has been in possession of the property and respondents have no right to trespass into the plaint schedule property. Though respondents contended that appellant did not obtain any right under Ext.A1, it was admitted by respondents in the written statement that mother of the appellant was alloted 50 cents, which lies on the northern portion of the entire property in the possession of Bhagavati Amma, who obtained the entire property from Narayana Pillai. But that settlement deed of 1117 was not produced. The admission in the written statement shows that mother of the appellant, who executed Ext.A1 was alloted 50 cents by Bhagavati Amma, under whom respondents also claim right. Even though appellant applied for a Commission to SA 130/1995 7 identify the plaint schedule property with reference to Ext.A1, respondents did not produce the settlement deed under which according to respondents, mother of the appellant was alloted 50 cents, to prove that 50 cents alloted under settlement deed of 1117 is different from the 50 cents, a portion of which is transferred under Ext.A1. Even at the time of evidence, respondents were not examined to prove that 50 cents alloted to the mother of appellant was not this property but some other property. In such circumstances, trial court found that appellant is entitled to the decree sought for. 7. First appellate court reversed the judgment based on Ext.B3. True, Ext.B3 judgment shows that the property did not originally belonged to Kesava Pillai as claimed by appellant but to his brother, Narayana Pillai. It is admitted case that Bhagavati Amma was the common wife of both the brothers. When appellant claimed that the property belonged to Kesava Pillai, respondents contended that the property belonged to Narayana Pillai. Though under Ext.B1 judgment, case of first respondent was not upheld, in the appeal under Ext.B3 judgment, it was finally found that the property originally belonged to Narayana Pillai and not Kesava Pillai. Therefore appellant could claim title only under Narayana Pillai. Viewed from that angle, the title SA 130/1995 8 claimed under Ext.A1 may not stand. But even according to respondents, mother of the appellant is entitled to 50 cents. Ext.A1 shows that 20 cents gifted to appellant is part of the 50 cents belonging to the donor thereunder. The question then is which is the 50 cents to which the donor under Ext.A1 is entitled. When the settlement deed was not produced and properties were not identified, it is not possible to decide the question of title as such in this suit. 8. But when the suit is one for injunction and in the absence of any other evidence and finding of the trial court that appellant is in possession of the property, question is whether first appellate court was justified in reversing the findings. As pointed out by learned counsel appearing for appellant, first appellate court was persuaded to reverse the judgment of the trial court on the contention of respondents that the suit property in O.S.11 of 1981 is the same suit property in the present suit. The decree in O.S.11 of 1981 was not produced before the courts below and therefore the courts below could not find out whether the properties are the same. Though the judgment in O.S.11 of 1981 was produced before the trial court and marked as Ext.B1 and the judgment in its first appeal(A.S.14 of 1983) was produced before first appellate court, the decree SA 130/1995 9 was not produced. As it is necessary to decide the question whether it is in respect of the same property. Though the judgment in A.S.14 of 1983 was produced by respondents before the first appellate court and the decree was not produced, it is necessary to receive the additional document produced along with I.A.317 of 2008 as it is necessary to pronounce a better judgment. That petition is allowed and the document is received as additional evidence under Order XLI Rule 27 of Code of Civil Procedure. It is marked as Ext.A2. 9. A perusal of Ext.A2 shows that the plaint schedule property in this suit is not the plaint schedule property in O.S.11 of 1981. If that be so, when first appellate court interfered with the decree on the basis that the properties are the same, the judgment of the first appellate court will not stand. When the evidence establish that appellant is in possession of the plaint schedule property, trial court was justified in granting a decree for injunction and first appellate court was not correct in interfering with that decree without proper appreciation of evidence. As the judgment of the first appellate court was without considering the question whether plaint schedule property in O.S.11 of 1981 is in respect of the very same property herein, the judgment of the first appellate court is set SA 130/1995 10 aside. 10. Appellant is entitled to the decree granted by trial court. But it is made clear that the decree will not prevent respondent from claiming title to the property available to him under the settlement deed, as ultimate title will vest only under the settlement deed executed by Bhagavati Amma. Hence though appellant is permitted to put up a boundary by the trial court, it can only be subject to the final decision on title in appropriate proceedings. Appeal is allowed. The judgment in A.S.106 of 1989 on the file of District Court, Thiruvananthapuram is set aside. O.S.490 of 1983 on the file of Munsiff Court, Thiruvananthapuram stands decreed as follows. Respondents/defendants are restrained by a permenent prohibitory injunction from trespassing into the plaint schedule property. Appellant is entitled to put up a boundary but subject to the condition that the boundary so fixed is subject to the final decision on the question of title in appropriate suit. M.SASIDHARAN NAMBIAR, JUDGE lgk/-