IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 SA.No. 609 of 1998(E) ------------------------------- AS.44/1993 of DISTRICT & SESSIONS COURT, ALAPPUZHA OS.56/1991 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 3: --------------------------------------------------------------------------------- 1. SOSAMMA VARGHESE, PUTHENPARAMBIL HOUSE, VALANJAVATTOM, KADAPRA. 2. ANNAMMA IYPE, PUTHIYOTHU KALEEKAPARAMBIL, NIRANAM. BY ADV. DR.P.S.KRISHNA PILLAI RESPONDENT/APPELLANT/PLAINTIFF: --------------------------------------------------------- P.O. GEORGE, PALLIKKAVILPOOVAMVELIL HOUSE, NIRANAM VADAKKUM BHAGAM MURI,KADAPRA VILLAGE, THIRUVALLA TALUK. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MRS.ROSAMMA MAMMAN,KELAMPARAMBIL THOPPIL HOUSE, PALIYAKKARA, THIRUVALLA. BY ADV. SRI.K.ANAND (A.201) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------- S.A.No.609 of 1998 --------------------------------- Dated this the 8th day of February, 2011 JUDGMENT Defendants 1 and 3 in O.S.56/1991 before the Additional Munsiff's Court, Alappuzha are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaint schedule property is one acre and 36 cents of paddy lands. The plaintiff claimed the property on the basis of Ext.A2 sale deed of the year 1976. The plaintiff is in possession and enjoyment of plaint schedule 1.36 acres of property comprised in Survey No.356/1A1 of Thalavady Village. Alleging that the defendants are attempting to trespass into the plaint schedule property and to obstruct the plaintiff's peaceful possession and enjoyment of the same, the plaintiff sought for a perpetual injunction restraining the defendants from the above said illegal acts. Hence the suit was filed. 3. The defendants 1 and 3 resisted the suit. It is pointed out that the property shown in the plaint schedule forms part of the one acre property in survey No.355/1 belonging to the first defendant and the 91 cents of property in survey No.356/1A belonging to the third defendant by virtue of the gift deed No.1262 dated 15.09.1983. The defendants 1 and 3 have been in actual possession and enjoyment of the entire S.A.No.609 of 1998 2 portions of the said properties ever since the date of the gift deed. The plaintiff had not been in possession and enjoyment of the property described in the plaint. Hence, they prayed for dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts. A1 to A11 from the side of the plaintiff. The defendants had DWs 1 to 4 examined and Ext.B1 marked. The trial court holding that in a suit for injunction the question of possession alone is relevant and since the plaintiff has not been able to prove his possession , dismissed the suit. 5. The plaintiff carried the matter in Appeal as A.S.44/1993 before the District Court, Alapuzha. The lower appellate court reversed the judgment and decree of the trial court and granted the injunction prayed for to plaintiff with costs. Hence the second appeal. 6. Notice has been issued on the following substantial questions of law: 1. In the light of the contentions of defendants 1 and 3 regarding the identity of the property described in the plaint schedule as also regarding the genuineness and validity of the title deed relied on by plaintiff was the lower appellate court correct or justified in simply relying on Ext.A2 sale deed relied on by the plaintiff, extending the benefit of the presumption that S.A.No.609 of 1998 3 possession follows title and in granting the injunction prayed for to plaintiff ? 2. On the facts and in the circumstances of the case and in the light of the contentions of defendants 1 and 3 in their written statement regarding the identity of the property described in the plaint, was the lower appellate court justified in decreeing the suit without identifying the plaint item ? 3. On the materials on record, has the plaintiff discharged the burden of proving his possession of the property described in the plaint schedule ? If not, is he entitled to the injunction prayed for ? 7. Learned counsel for the appellants pointed out that the lower appellate court was unjustified in decreeing the suit overlooking the reasons given by the trial court in dismissing the suit. The principle that possession follows title has no application to the facts of the case and has been misapplied by the lower appellate court. It is contended that the lower appellate court had omitted to note that the title of the property had been disputed and so also possession as claimed by the plaintiff. There was absolutely no evidence at all to show that the plaintiff ever had possession of the said property. Attention was also drawn to the inconsistency in the plaint and evidence adduced by the plaintiff. S.A.No.609 of 1998 4 8. Learned counsel for the respondent pointed out that sale deed in favour of the plaintiff namely Ext.A2 states that possession has been given. The defendants relied on gift deed for claiming rival title and possession, but they have not adduced any evidence to establish this claim. The plaintiffs have produced sufficient evidence to show that they have been enjoying the property ever since Ext.A2 sale deed. On the other hand defendants have no evidence to show that they have title or possession of the suit property. The lower appellate court has considered the evidence in the right perspective and has come to a conclusion which is justifiable both on facts and in law. 9. The plaint schedule property having an extent of 1 acre 36 cents belonged to the father in law of the power of attorney holder of the plaintiff. As per Ext.A2 dated 24.11.1976 a sale deed was executed by Mathew in favour of the plaintiff. Though it is difficult to accept the reasoning of the lower appellate court, the conclusion is supportable on other grounds. The plaintiff has clearly given evidence as PW1 and by virtue of Ext.A2 sale deed, plaintiff was put in possession. There is nothing to show that the recital in the document is false. S.A.No.609 of 1998 5 10. Of course, the defendants have a case that the property has not been identified. The extent of 1 acre and 36 cents is assigned in favour of the plaintiff. There is no case for the defendants that Ext.A2 is either erroneous or the property is not in existence. Neither side had any misapprehension about the identity of the property. Parties set up the rival title and possession. In the light of that fact it was unnecessary for the plaintiff to get proper identification of the property through a commissioner. Further, the case of the defendants is that property is covered by gift deed in their favour. Surprisingly, they have not produced the same and no reason have been given for the omission. Though it cannot be said that the plaintiff has produced independent evidence to show acts of possession he has produced this document of title which shows the possession has been handed over. 11. Probably the plaintiff could have produced more evidence. The sale deed in favour of the plaintiff assumes importance in the context and the recitals indicate that the plaintiff was put in possession. At any rate, plaintiff has produced some acceptable evidence to show his title and possession to the suit property. Once it is found that plaintiff had been put in possession by virtue of the sale deed, his possession will be deemed to have continued unless S.A.No.609 of 1998 6 shown otherwise. The defendants except for Ext.B1 which serves no purpose have not cared to produce even the document of title in support of their contention. Therefore, though the reasons given by the appellate court for decreeing the suit seems to be unjustifiable, the conclusion seems to be fully justified. Since both sides have adduced evidence the burden of proof recedes to the background and the case will have to be decided on the basis of preponderance of probability. The Second Appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln