IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 RSA.No. 167 of 2011 --------------------------------- AS.119/2007 of II ADDL. DISTRICT COURT, PALAKKAD OS.196/2005 of ADDL. MUNSIFF COURT, PALAKKAD .................... APPELLANT/RESPONDENT/PLAINTIFF: SUBRAMANIAN, S/O. LATE KARUPPASWAMY, VADAKETHERUVU, PALAYAM, THIRUNELLAYI P.O., PIRAYIRI, PALAKKAD TALUK & DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/APPELLANT & R2/DEFENDANTS: 1. KRISHNAN, S/O. CHAMIYAPPAN, AS SHOWN IN THE SUIT - (LATE MARIYAPPAN CHETTIAR, PEZHAMKARA, KALAMPUZHA, MEPPARAMBU, MEPPARAMBU P.O., PALAKKAD TALUK & DISTRICT, PIN-678 001. 2. VELU, S/O. CHAMIYAPPAN, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.167 of 2011 -------------------------------------- JUDGMENT Plaintiff in O.S.No.196/2005 on the file of Munsiff's Court, Palakkad is the appellant. Defendants are the respondents. The suit was instituted for a permanent prohibitory injunction contending that plaint schedule property originally belonged in jenm right to Karuppaswamy, his father, who assigned that right in his favour under Exhibit A1 registered assignment deed 27/1997 and since then, he has been in possession and enjoyment of the property. Subsequently, after the death of Karuppaswamy, his legal heirs executed Exhibit A2 correction deed as there was mistake in the survey number and extent of the property. Respondents have no manner of right in the plaint schedule property and as they are attempting to trespass into the plaint schedule property, they are to be restrained by a permanent prohibitory injunction. Respondents resisted the suit by disputing the right claimed by the appellant. 2. Learned Munsiff, on the evidence of PW1, DW1, Exhibits A1 to A5 and C1 and C2, granted a decree in favour of the RSA 167/11 2 appellant. First respondent challenged the judgment and decree before District Court, Palakkad in A.S.No.119/2007. Learned Additional District Judge, on re-appreciation of evidence, set aside the findings of the learned Munsiff and dismissed the suit. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that first appellate court interfered with the decree granted by the trial court based on the finding that plaint schedule property was not identified as Exhibit A1 assignment deed shows that it is fifty eight cents in Sy.Nos.557 and 558 and under Exhibit A2 correction deed, the extent is reduced to thirty two cents and the survey number is modified to R.S.No.232/1B. It is argued that identity as such was not disputed and evidence of DW1 establishes the identity and being a suit for injunction, the only question is regarding possession and possession is established by the evidence of PW1 and Exhibits A1 to A5. It is argued that Exhibit A4 possession certificate with Exhibits A3 and A5 tax receipts establish that appellant has been in possession of the plaint schedule property and when respondents have no right over the property and RSA 167/11 3 evidence of DW1 shows that he claims right only up to the southern bund, first appellate court was not justified in reversing the decree. 5. Appellant is claiming right, title and possession over plaint schedule property under Exhibit A1 assignment deed. Exhibit A1 assignment deed was executed in his favour by his father Karuppaswamy. Though Karuppaswamy claimed that he has jenm right in plaint schedule property, Exhibit A1 does not show how he got right over the property. Though appellant, as PW1, claimed that Karuppaswamy was a tenant of the property, Exhibit A1 does not support the said claim. Though Exhibit A1 shows that Karuppaswamy was paying tax, no tax receipt was produced. If Karuppaswamy was paying tax and the property which was assigned thereunder was the property for which he was paying tax, that property could only be in Sy.Nos.557 and 558 and cannot be in R.S.No.232/1B. Argument of the learned counsel is that evidence of PW1 clarifies why Exhibit A2 correction deed was executed. It was submitted that when appellant sought a possession certificate from the Village Office and the property was measured, it was found that survey number RSA 167/11 4 is not 557 and 558, but 232/1B and therefore, Exhibit A2 correction deed was executed by the legal heirs of Karuppaswamy. Evidence of PW1 establishes that even during the life time of the father Karuppaswamy, property was measured and a sketch was prepared. If that be so, it is not open to the appellant to contend that his father was not aware of the mistake in the survey number. In such circumstances, based on Exhibit A2, appellant cannot claim right or possession over plaint schedule property. If the evidence is appreciated in this respect, I do not find any reason to interfere with the finding of fact rendered by the first appellate court. It is not for the defendants to establish their right or possession in a suit for injunction, but it is for the plaintiff. When plaintiff failed to establish his right and possession over plaint schedule property, he is not entitled to the decree sought for. No substantial question of law is involved in the appeal. Appeal is dismissed. 24th February, 2011 (M.Sasidharan Nambiar, Judge) tkv