IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 SA.No. 841 of 2000(A) --------------------- ( AS.168/1996 of ADDL.DISTRICT COURT, THRISSUR OS.667/1995 of II ADDL.MUNSIFF'S COURT,THRISSUR) APPELLANTS/APPELLANTS/PLAINTIFFS: --------------------------------------------------------------- 1. PARVATHY AMMA, W/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. 2. BALAKRISHNAN, S/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. 3. RAMAN, S/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. 4. BALACHANDRAN, S/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. 5. PARAMESWARAN, S/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. 6. LAXMIKUTTY D/O. POTTEKKAT VALAPPIL SANKARAN EZHUTHASSAN, AVANOOR VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.VIJAYA BHANU ADV. SMT.MINI JOHN PAREMALIL RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------------------------------- NARAYANAN, S/O. RAMAN EZHUTHASSAN, POTTEKKAT VALAPPIL HOUSE, AVANOOR VILLAGE, THRISSUR TALUK. BY ADV. SRI.K.S.BABU ADV. SMT.N.SUDHA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.NO. 841 OF 2000 ORDER ON C.M.P.NO. 150 OF 2001 IN S.A.NO. 841 OF 2000 DISMISSED. 01.02.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... S.A. No. 841 OF 2000 ................................................................................... Dated this the 1st February, 2008 J U D G M E N T The plaintiffs in O.S.No.667 of 1995 on the file of the court of the II Addl. Munsiff, Thrissur are the appellants in this Second Appeal. The suit filed by them for permanent prohibitory injunction was dismissed by the trial court. On appeal by them as A.S.No. 168 of 1996, the District Court dismissed the appeal. However, it was observed that the remedy of the plaintiffs is to sue for fixation of boundary or such other reliefs based on the title. 2. The plaint schedule property is having an extent of 39 cents. On the western side of the plaint schedule property, the property of the defendants is situated. There is a well on the boundary separating the two properties . According to the plaintiffs, the well belongs to the plaintiffs as well as the defendants and both of them are entitled to take water from the well. According to the defendants, the well belongs to them and that the plaintiffs have no right over the well. 3. The prayer in the suit is for an injunction restraining the defendants from trespassing upon the plaint schedule property, from cutting and removing the trees and other improvements in the property and from constructing a compound wall or other boundary obstructing the user of the well. The plaintiffs claim title in respect of an extent of 39 cents as per document No. 4197 of 1950 executed in favour of Sankaran Ezhuthassan, the predecessor of the plaintiffs . After the death of Sankaran Ezhuthassan, the plaintiffs are in possession of the property along with two other children of Sankaran Ezhuthassan. It is alleged in the plaint that the well is situated in the boundary separating the property of the plaintiffs and that of the defendants and that the well belongs to both the parties in 2 equal rights. The plaintiffs also contended that they are using the well in question. 4. The defendants contended, inter alia, in the written statement filed by them that a total extent of 70 cents of land was assigned in favour of Krishnan Ezhuthassan. Out of the extent of 70 cents, an extent of 23 ½ cents was assigned by Krishnan Ezhuthassan in favour of the defendants. Thereafter, the rest of the land on the eastern side of the defendants' property came to vest in the possession of the plaintiffs. The defendants also contented that out of the total extent of 70 cents, 1/3 portion came into the possession of the defendants and 2/3 is in the possession of the plaintiffs. Thus, the plaintiffs are in possession of 46 ½ cents and defendants are in possession of 23 ½ cents. The defendants also raised a contention that the well is not in the boundary separating the properties of the plaintiffs and the defendants. According to the defendants, the well belongs to them and the plaintiffs have no right over the well. 5. Since the suit was one for permanent prohibitory injunction, apparently, no question of title was considered by the courts below. Issue regarding the title was also not raised in the suit. Though issue no.2 was raised as: “In whose property, is the well in question situated?”, the trial court has not considered the question of title to the well, but proceeded on the basis of possession. It was held by the trial court that the plaintiffs had not cared to get the properties measured with the help of records and therefore, they are not entitled to get a decree for injunction. On that finding, the trial court held thus: “Under these circumstances, the only probable conclusion is that the well is lying in the property of the defendants themselves.” This was not a decision on the question of title. The trial court was answering the question of possession and was deciding the question as to whether the plaintiffs were entitled to get injunction. 6. The trial court considered the fact that the property was measured by the Taluk Surveyor who was examined as D.W.2. He produced Ext.X1 file which would indicate 3 that the property was measured in accordance with the survey records before the suit was filed and the boundaries were shown to the parties. The plaintiffs suppressed this fact, though notice was received by them before conducting the survey. It was held by the trial court that the plaintiffs did not approach the court with clean hands and that they suppressed material facts. The equitable relief of injunction was thus denied to them. 7. The appellate court held that there is no evidence to show that there is any specific boundary demarcating the property of the plaintiffs and that of the defendants. It was held that though the plaintiffs claimed that they have been taking water from the well in question, there is no reliable evidence to prove the same. It was also held by the appellate court that though the plaintiffs claimed that the measurements made by D.W.2., Taluk Surveyor were incorrect, no steps were taken by them to get the properties measured. Though a Commissioner was appointed, the properties were not measured in accordance with the survey and no steps were taken by the plaintiffs to get a proper report and a plan. The appellate court concluded by holding thus: “The remedy of the appellants is to sue for fixation of boundary or such other reliefs as the case may be, based on the title claimed by them over the disputed portion.” Evidently, this finding was arrived at by the appellate court on the basis that in the present suit for injunction, the question of possession alone was considered by the trial court . The appellate court left open the question of title to be decided in a properly constituted suit. It cannot be said that the courts below committed any error of law in dismissing the suit for injunction. The courts below considered the oral and documentary evidence in detail and held that the plaintiffs have not established the identity of the plaint schedule property correctly and they have failed to prove possession. The relief of injunction was therefore rightly declined. 8. Even after noticing that the remedy of the plaintiffs is to file a suit for fixation of 4 boundary or to file a suit based on title, the appellate court has observed in paragraph 15 of the judgment thus: “There is also no evidence to show that the appellants have any right over the well in question”. The learned counsel for the appellants is right in his submission that having relegated the parties to a properly constituted suit, the appellate court was not justified in making such an observation. In the aforesaid circumstances, I am not inclined to interfere with the concurrent findings of the courts below. The Second Appeal lacks merit and it is accordingly dismissed. However, the aforesaid observation/finding in paragraph No.15 of the judgment of the appellate court as regards the right of the plaintiffs over the well shall stand vacated. K.T. SANKARAN, JUDGE. lk 5 K.T. SANKARAN, J. ........................................................ S.A. No. 841 OF 2000 ......................................................... Dated this the 1st February, 2008 J U D G M E N T