IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 SA.No. 445 of 2000(C) & CROSS OBJECTION) ------------------------------------- AS.238/1992 of I ADDL. DISTRICT COURT, PALAKKAD OS.114/1988 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------ DHANUSLAUS, PAZHANIYARPALAYAM, KOZHINJAMPARA VILLAGE, CHITTUR TALUK PALAKKAD DIST. BY ADVS. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SMT.M.MEENA JOHN RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. ALPHONSE, PAZHANIYARPALAYAM, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 2. PUSHPARAJ, DO. DO. 3. MARIAM JAYASEELI, DO. DO. 4. RAJASEKHARAN, DO. DO. 5. RAJIS GNANAMIRATHAM, DO. DO. 6. RAJENDRAN, DO. DO. 7. SEBASTIAN, DO DO. 8. SOURIAR, DO. DO. BY ADVS. SRI.V.CHITAMBARESH SRI.S.KRISHNA PRASAD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 445 of 2000(C) ------------------------------- ORDER ON CMP 1210/2000 IN SA 445/2000 DISMISSED 23.6.2011 Sd/- P.BHAVADASAN, JUDGE / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ------------------------------------------------- SA No.445 of 2000 & Cross Appeal ------------------------------------------------- Dated this the 23rd day of June 2011 Judgment The plaintiff, who was non-suited by both the courts below, is the appellant. The suit was one for injunction in relation to plaint C schedule property. The plaintiff obtained plaint C schedule property as per Ext.A1 partition deed. According to him, he is in possession of plaint B schedule property also. The allegation was that the defendants are trying to cut and remove a tree standing in B schedule property and they have no right to do so. Since the defendants were continuing their mischievous acts, the suit was laid. 2. The defendants resisted the suit. They disputed the right of the plaintiff over B schedule property. According to them, it is being used a burial ground and the plaintiff has no exclusive right over the same. It is also pointed out that they have no intention to cut and remove any trees standing in B schedule property and the suit is SA 445/2000 2 misconceived and is liable to be dismissed. 3. On the basis of the above pleadings, necessary issues were raised by the courts below. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and no documents were marked. Exts.C1 and C2 commissioner's report and plan were also marked. 4. The trial court found that the plaintiff has no exclusive possession of plaint B schedule property and he is not entitled to any relief whatsoever and dismissed the suit. 5. The disappointed plaintiff carried the matter in appeal as AS No.238/92 before the District Court, Palakkad. The lower appellate court confirmed the judgment and decree of the trial court reserving the right of the plaintiff to use the southern extreme portion of B schedule property as a pathway for gaining access to his property. Hence the second appeal. SA 445/2000 3 6. Notice is seen issued on the following questions of law raised in the second appeal : 1.Has not the lower appellate court erred in law in granting a decree for egress and ingress of the plaint B schedule property without specifying the extent and identification. 2.Have not the courts below erred in law when the defendants who are only members of a community have no manner or right, title or interest exclusively over plaint B schedule property ? 3.The exemption under Section 83 of the Kerala Land Reforms Act can be confined only to the public purpose for which it is dedicated by the land owner and for no other purpose. Have not the courts below erred in law in overlooking this point in law ? 7. The learned counsel for the appellant pointed out that both the courts below have omitted to notice that the plaint B schedule property dealt with in Ext.A1 partition deed and the defendants have no right over the same. In fact, a portion of B schedule property is being used as a way for gaining access to his property and the courts below have omitted to notice these vital aspects. The reliance SA 445/2000 4 placed on the order passed by the Taluk Land Board, which examined only a portion of the property, is without any basis and foundation. The non-consideration of these aspects, according to the learned counsel, has resulted in miscarriage of justice. 8. After going through the records, the judgment and decree of the courts below and after hearing the learned counsel, I find no merit in the contentions raised by the appellant. The commissioner's report shows that B schedule property is used as a burial ground and for conducting other rituals. The defendants have made it clear that they have no intention to cut and remove any trees standing thereon. There is no dispute regarding the fact that the property is being as a burial ground by the members of the Vanian Christian community. In a suit for injunction, it is trite that the plaintiff should prove and have exclusive possession of the property. Obviously, in the case on hand, he cannot claim exclusive possession of the property and the defendants have stated that they have no SA 445/2000 5 intention to cut and remove any trees from the property. Further, the lower appellate court has safeguarded the interest of the plaintiff regarding the use of the pathway made mention of by the commissioner in his report and shown in the plan. It appears that there is a cross objection filed by the defendants regarding the observation of the lower appellate court with respect to the pathway. It was pointed out by the learned counsel for the respondent that the plaintiff is using the pathway indiscriminately so as to damage the same. That affects the rights of the defendants. There is nothing to indicate as of now that the plaintiff is tampering with the use of the property as cemetery. However, it is made clear that the plaintiff is entitled to make use of the pathway, as noticed by the Commissioner, without altering its nature and lie. Subject to the above observations, the second appeal and the cross appeal are dismissed. No costs. P.Bhavadasan, Judge SA 445/2000 6 sta SA 445/2000 7