IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 SA.No. 468 of 1996() -------------------- AS.25/1989 of SUB COURT, OTTAPPALAM OS.139/1986 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S)/1ST RESPONDENT/1ST DEFENDANT: -------------- PRABHAKARAN, S/O.CHAKKAPPARAMBIL VELAYUDHAN, KOONATHARA AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE SRI.D.NARENDRANATH RESPONDENT(S)/APPELLANTS AND RESPONDENTS 2 AND 3/ PLAINTIFFS AND DEFENDANTS 2 AND 3: --------------- 1. LAKSHMI, W/O.NARAYANAN, ERUMBRASSERY, KPOONATHARA AMSOM, PANAYAR DESOM, OTTAPALAM TALUK. 2. BABU, S/O.LAKSHMI, ERUMBRASSERY, -DO- -DO- 3. KOTHA, S/O.ERUMBASSERY PARAMBIL AYYAPPAN, KOONATHARA AMSOM AND DESOM, OTTAPALAM TALUK. 4. KOTHA, S/O.PADINJARETHIL AYYAPPAN, KOONATHARA AMSOM AND DESOM, OTTAPALAM TALUK. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1 & R2 SRI.KODOTH PUSHPARAJAN FOR R1 & R2 SRI.P.RAMACHANDRAN FOR R3 AND R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/2/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.468 of 1996 -------------------------------------- Dated this the 23rd day of February, 2010. JUDGMENT Following substantial questions of law are framed for a decision in this Appeal at the instance of defendant No.1 in the suit: i. In a suit for injunction, when the plaintiffs claims right and possession over an item of property, on the basis of a document and when the defendants dispute the extent, boundary and measurements as also the survey number of the property, can a decree be granted in favour of the plaintiffs upholding their claim of possession without the plaintiffs taking out a commission and getting the property measured and demarcated? ii. In a suit for injunction is not possession as on the date of suit alone material and whether in the light of Ext.C2, report which shows that the fence on the east of disputed Etha was in existence on the date of filing of the suit the plaintiffs are entitled to a decree for injunction? iii. In a suit for injunction whether the plaintiffs are entitled to a decree without proving possession of the disputed property as on the date of suit and whether such possession of the plaintiffs can be inferred? iv. Is not the decision of the lower appellate court vitiated by reason of misreading of the pleadings and the evidence on record, particularly Exts.C1 and C2? SA No.468/1996 2 v. Whether under the facts and circumstances of the case, the decree granted by the lower appellate court is sustainable? Respondent Nos.1 and 2 sued appellant and respondent Nos.3 and 4/defendant Nos.1 to 3 for a decree for prohibitory injunction to restrain them from trespassing into the suit property or interfering with the eastern boundary of the property which respondent Nos.1 and 2 claimed is a small ridge and old fence put up on it. They claimed that Narayanan, husband of respondent No.1/plaintiff No.1 purchased the property from one Saraswathi Amma as per Ext.A1, assignment deed dated 7.7.1966 and that they inherited the same on the death of the said Narayanan. Property on the east of the suit property belong to appellant and respondent Nos.3 and 4 (respective plots on the east of the suit property). Respondent Nos.1 and 2 apprehended trespass by appellant and respondent Nos.3 and 4 into the suit property and hence filed suit on 5.6.1986. Appellant and respondent Nos.3 and 4 resisted the suit contending that description of the suit property is not correct and that the small ridge and fence over it claimed by respondent Nos.1 and 2 do not actually belong to them. Instead, that ridge and fence formed part of property of appellant and respondent Nos.3 and 4. Property of respondents Nos.1 and 2 lie at a lower level. Respondent Nos.1 and 2 tried to trespass into the property of appellant and construct a fence. Appellant obstructed it and removed part of the fence. The advocate commissioner appointed in the case inspected the properties on 6.6.1986 and 14.6.1986 and submitted Ext.C2, report on 25.6.1986. In that report he stated that towards east of the suit property he found a fence recently SA No.468/1996 3 constructed facing towards property of appellant and respondent Nos.3 and 4 and remnants of an old fence at a length of about five feet, three feet east of the new fence which was constructed facing westwards (facing the suit property). Further east of remnants of the old fence commissioner found portions of the old fence and bamboo poles which respondent Nos.1 and 2 claimed was part of the old fence and which was allegedly demolished by appellant and respondent Nos.3 and 4 on 7.5.1986 and 25.5.1986 after filing of the suit. Alleging interference with the existing boundary after filing of the suit respondent Nos.1 and 2 amended the plaint incorporating prayer for mandatory injunction to direct appellant and respondents Nos.3 and 4 to restore the old fence to its original position and to recover damages from them. Appellant and respondent Nos.3 and 4 filed additional written statement denying that there was any such trespass or mischief committed by them and asserting the contentions they had already taken in the original written statement. Trial court took the view that without a proper measurement of the property based on Ext.A1, sale deed claim of respondent Nos.1 and 2 for mandatory injunction cannot be allowed. Consequence was a dismissal of the suit. Respondent Nos.1 and 2 took up the matter in appeal. First appellate court was of the view that the suit is for a decree for injunction based on possession and as such a measurement of the property as per Ext.A1 was not essential. First appellate court was of the view that relief could be granted based on possession of respondent Nos.1 and 2 as on the date of suit, found that on the east of the property in the possession of respondent Nos. 1 and 2 there was an old fence a portion of which was SA No.468/1996 4 demolished by appellant and respondent Nos.3 and 4 after filing of the suit and based on that finding prohibitory and mandatory injunction were granted. That is under challenge in this Second Appeal at the instance of defendant No.1. It is contended by learned counsel for appellant that the suit is primarily and basically one for fixation of boundary which involved title and possession and hence without a proper measurement of the property belonging to respondent Nos.1 and 2 as per Ext.A1 first appellate court went wrong in granting relief of mandatory injunction. It is also the contention of learned counsel that evidence of PWs 1 and 4, respondent Nos.1 and advocate commissioner was not properly appreciated by the first appellate court. Learned counsel would argue that there was no reason or occasion for the first appellate court to interfere with the finding of the trial court which is based on a proper appreciation of the evidence. Learned counsel for respondent Nos.1 and 2 contended that on the evidence on record first appellate court was justified in protecting possession of respondent Nos.1 and 2 over the suit property. 2. I am unable to accept the contention that the suit is for fixation of boundary in view of the factual situation emerging in the case. Though a prayer for mandatory injunction to restore the fence on the eastern side was incorporated by amendment of the plaint and granted by the first appellate court, reason for that is that according to respondent Nos.1 and 2 the existing boundary was tampered with after filing of the suit. Otherwise as it was filed on 5.6.1986 suit was merely for decree for prohibitory injunction based on possession of the suit property claimed by respondent Nos.1 and 2. To grant SA No.468/1996 5 decree for prohibitory injunction based on possession it was not absolutely necessary that the suit property had to be measured with reference to the title deed of respondent Nos.1 and 2. It was well within the power of court to grant prohibitory injunction based on possession of respondent Nos.1 and 2 over the suit property. If after filing of the suit the existing boundary was tampered with, it was well within the power of court to protect possession of respondent Nos.1 and 2. Hence the mere fact that suit property was not measured with reference to Ext.A1 cannot be a reason to non-suit respondent Nos.1 and 2. 3. According to respondent Nos. 1 and 2 their eastern boundary is the old fence constructed facing westwards (towards the suit property indicating that the fence belonged to respondent Nos.1 and 2) and that was destroyed by appellant and respondent Nos.3 and 4 after filing of the suit. In Ext.C2, advocate commissioner (PW4) has stated that he found a new fence towards east of the suit property and three feet further east of that new fence remnants of the old fence at a length of five feet. That old fence was seen constructed facing westwards (towards the suit property). It is further east of remnants of the old fence that portion of the old fence (demolished) was seen by the advocate commissioner and which respondent Nos.1 and 2 represented to the advocate commissioner as part of the old fence (seen three feet east of the existing new fence) and destroyed by appellant and respondent Nos.3 and 4. Respondent No.2/plaintiff No.2 has given evidence as PW1 in support of his case and the alleged demolition of eastern old fence by appellant and respondent Nos.3 and 4 SA No.468/1996 6 on 7.5.1986 and 25.5.1986. PW2 is the husband of Saraswathi Amma who assigned suit property in favour of predecessor of respondent Nos.1 and 2. He stated that he had constructed fence on the eastern side of the suit property but he was of the opinion that better information regarding that could be given by his wife. PW3 stated that he constructed the fence (remnants of which was seen three feet east of the existing fence )about 8-10 years back and that the fence at that portion was put up at the instance of respondent Nos.1 and 2. In cross examination he stated that he is enmical towards Balan, brother of appellant. PW4, advocate commissioner has given evidence in tune with Exts.C1 and C2. He stated that the (new) fence he saw on the east of the suit property was seen facing westwards and that the fence was seen on the same line with the fence on the east of suit property separating it from property of Vasu Chettiar (who is not a party to this proceeding). It is also the evidence of PW4 that suit property as well as the property of appellant and respondent Nos.3 and 4 had level difference, suit property being at a lower level. Appellant gave evidence as DW1 when he had no difficulty to concede that there was remnants of the old fence east of the new fence put up by appellant and respondent Nos.3 and 4 (defendants in the suit) and that the old fence was put up by respondent Nos.1 and 2/plaintiffs. 4. There is evidence to show that as on the date of the institution of the suit, suit property had an old fence on the eastern side (portion of which was seen by the advocate commissioner three feet east of the new fence). SA No.468/1996 7 Appellant or respondent Nos.3 and 4 have no case that they constructed that old fence. DW1 admitted that the old fence was put up by respondent Nos.1 and 2. Thus there is evidence to show that after institution of the suit appellant and respondent Nos.3 and 4 constructed new fence west of the old fence a portion of which they demolished. Certainly that having been done after institution of the suit respondent Nos.1 and 2 are entitled to get it restored as on the date of suit. I think even in the absence of prayer for mandatory injunction incorporated by amendment, if as on date of suit on the eastern extremity of suit property there existed an old fence which formed physical boundary of that property which appellant and respondent Nos.3 and 4 demolished, it was well within the powers, may, duty of the court to direct restoration of the fence as on date of the suit. Viewed in that line I am persuaded to think that first appellate court was justified in granting prohibitory and mandatory injunction as prayed for. 5. Learned counsel for appellant submits that the decree may not affect right of appellant to seek fixation of boundary or seek other reliefs based on the title he claims. I stated that the suit as originally filed was for decree for prohibitory injunction to protect possession of respondent Nos.1 and 2 and that mandatory injunction was necessitated on account of subsequent developments. On going through the judgment of the first appellate court I do not find any finding regarding title of respective parties. Hence there is no reason why the appellant should have an apprehension that judgment and decree of the first appellate court or this Court are based on title claimed by the SA No.468/1996 8 respective parties. I make it clear that it will be open to the parties to establish their title in case circumstances warranted that. The substantial questions of law framed above are answered as above. With the observation made above, the Second Appeal is dismissed. No cost. C.M.P.No.1095 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.468/1996 9 Thomas P.Joseph, J. S.A.No.468 of 1996 JUDGMENT 23rd February, 2010.