IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 SA.No. 946 of 1996(D) --------------------- AS.2/1992 of SUB COURT, HOSDRUG OS.9/1989 of MUNSIFF COURT, HOSDRUG .................... DEFENDANT(S): RESPONDENTS/APPELLANTS --------------------------------------------------- 1. THAMBURAN VALAPPIL AMBU alias MOOLAKKAL AMBU S/O.AMBADI, KADAMKODE CHERUVATHUR VILLAGE HOSDRUG TALUK ,P.O. KADAMKODE, KASARAGOD DISTRICT.(Died)LRS IMPLEADED. ADDL.APPELLANTS 3 TO 8 IMPLEADED. 2. MOOLAKAL ERUVADI, W/O.AMBU, -DO- -DO- BY ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN SRI.N.C.JOSEPH PLAINTIFFS/APPELLANTS /RESPONDENTS --------------------------------------------- 1. K.V.CHIRUDEYI, D/O.CHIRI AMMA, KADAMKODE, CHERUVATHUR VILLAGE, HOSDRUG TALUK, P.O.KADANKODE, KASARAGOD DISTRICT. 2. K.V. MANI, D/O.K.V.CHIRUDEYI -DO- -DO-(DIED) 3. K.V.VALIYA NARAYANI, D/O. -DO- -DO- 4. K.V.NARAYANI, D/O. -DO- -DO- ADV. SRI.T.SETHUMADHAVAN FOR R5 SRI.PUSHPARAJAN KODOTH FOR R5 SRI.K.JAYESH MOHANKUMAR FOR R5 LRS OF DECEASED A1 ------------------------- ADDL.A3. MOOLAKKAL BALAN, KADAMKODE, CHERUVATHUR VILLAGE, HOSDURG P.O. KADAMKODE, KASARGOD DIST. A4. MOOLAKKAL KAUSALLYA, -DO- -DO- A5. P. RAJENDRAN -DO- -DO- A6. DEVADAS -DO- -DO- A7. M.SHYLAJA, -DO- -DO- A8. M.SHYAM -DO- -D0- ADDL.APPELLANTS 3 TO 8 IMPLEADED AS THE LEGAL HEIRS OF DECEASED FIRST APPEALLANT AS PER ORDER DATED 26.11.08 IN I.A.45/07 IN S.A.946/96. LRS OF R2 ------------ ADDL.R5. K.V.KARTHYAYANI, D/O.MANI, KADAMKODE, CHERUVATHUR VILLAGE HOSDRUG TALU, KASARGOD DIST. ADDL.5TH RESPONDENT IMPLEADED AS THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT AS PER ORDER DATED 23/6/2009 IN I.A.531/09 IN S.A. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 946 OF 1996 =========================== Dated this the 2nd day of February,2010 JUDGMENT Defendants in O.S.9/1989 on the file of Munsiff Court, Hosdrug are the appellants. Plaintiffs are the respondents. Respondents instituted the suit for a permanent prohibitory injunction restraining the appellants from trespassing into the plaint schedule property. The plaint schedule property originally shown in the plaint was 25 cents in R.S.133/4 of Chervathur Village by name Kadamkode Kovilakam. As per the boundaries, it lies to the west of the property of first appellant to the north of the pathway to the east of the properties of first respondent, and Moolakkal Kunhikannan and to the south of properties of respondents and T.P.Moidu. The plaint schedule property admittedly originally belonged to Madian Koolam S.A.946/1996 2 Devaswom. Respondents contended that the plaint schedule property was obtained on oral lease from the Devaswom and subsequently Vannathi Chirudeyi, the first plaintiff, purchased the jenm right from the Land Tribunal as per order in O.A.9332/1976 and Ext.A1 purchase certificate was issued in her favour and while she has been in possession of the property, she executed Ext.A3 gift deed in favour of the respondent in 1982 and as there was a mistake in the survey number, Ext.A4 rectification deed was executed later and respondents have been in possession of the property and appellants attempted to trespass into the property and therefore they are to be restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. Respondents paid court fee under section 27(c) of the Court Fees and Suit Valuation Act. Even after framing the issue on title, no court fee under section 27(a) was paid. Appellants filed a written statement S.A.946/1996 3 contending that respondents are not in possession of the disputed portion of the plaint schedule property and the second respondent obtained 80 cents in R.S.133/4 from Madian Koolam Devaswom on kuzhikanom right and thereafter he purchased jenm right from the Land Tribunal as per order in O.A.1052/1976 and has constructed a house in the property and is residing therein and the eastern portion of the property in R.S.No.133/4 extending 80 cents is in the possession of the second respondent and there is a stone boundary wall to separate the property of respondents from that of the appellants and respondents are not entitled to the decree sought for. After the Commissioner submitted Exts.C1 and C3 reports and Exts.C2 plan, respondents got the plaint amended altering the plaint schedule property as 15 ½ cents in R.S.No.133/4 and 12 cents in R.S.No.495/1, without altering any of the boundaries, so as to make it in accordance with the plaint schedule property as S.A.946/1996 4 identified and marked in Ext.C2 plan by the Commissioner. 2. Learned Munsiff on the evidence of Pws.1 and 2, D.W1 and Exts.A1 to A4 and B1 to B4 and C1 to C3 dismissed the suit finding that respondents failed to establish their possession of the plaint schedule property and as court fee was not paid under section 27(a) of Court Fees and Suit Valuation Act, the question of title need not be decided. Respondents challenged the decree and judgment before Sub Court, Hosdrug in A.S.2/1992. Learned Sub Judge on reappreciation of evidence reversed the decree and granted a decree for injunction in favour of respondents. Second Appeal is filed challenging the said decree. 3. Second Appeal was admitted formulating the following substantial questions of law. 1. Was the first appellate court justified in reversing the decree of the trial court, when there was S.A.946/1996 5 no material or document to prove that respondents have possession or title to the disputed property? 2. Survey numbers having been corrected, and when they have no case that respondents have title or possession over the property in R.S.No.495/1, are they entitled to a decree when part of the disputed property lies in R.S.No.495/1? 3. Was the court below justified in acting on Exts.A5 and A6 produced before the appellate court which are not received as additional evidence and that too without granting opportunity to respondents to canvass their correctness and relevancy? 4. Learned counsel appearing for the S.A.946/1996 6 appellants and respondents were heard. 5. Though an issue on title was framed, learned Munsiff found that no court fee was paid under section 27(a) of Kerala Court Fees and Suit Valuation Act and as the suit is only one for injunction and court fee was paid only under section 27(c), question of title need not be decided in the suit. That finding was not challenged by the respondents, before the first appellate court. Hence the only question is whether respondents have established their possession of the plaint schedule property, as found by the first appellate court. 6. Respondents are claiming right and possession to the disputed portion of the plaint schedule property based on Ext.A1 purchase certificate and Exts.A3 and A4 gift deed and the rectification deed. The jenm right of the property of respondents as well as the appellants originally belonged to the Devaswom. Both claim S.A.946/1996 7 under oral lease. Ext.A1 purchase certificate shows that jenm right in respect of 16 cents in R.S.495/2 and 50 cents in R.S.133/4 was assigned in favour of the first plaintiff, as per order in O.A.9332/1996. It is pursuant to that order, Ext.A1 purchase certificate was issued. The Commissioner identified the plaint schedule property and the disputed property in Ext.C2 plan. Plot A B C D E having an extent of 22 ½ cents is found to be in the undisputed possession of respondents under Ext.A1 purchase certificate. So also plot C Q P 0 N G F C is admittedly in the possession of the appellants, under their purchase certificate. The disputed portion of the property is plot A B C F G H L J. Plot J L H G N M L K which lies further to the south of the plot A B C F G H L J is also claimed by appellants. The disputed property falls both in R.S.133/4 and R.S.No.495/1. Ext.A1 shows that the property assigned to respondents includes 16 cents in S.A.946/1996 8 R.S.No.495/2. R.S.No. 495/1 is not shown in the purchase certificate. Even in Ext.A3 gift deed executed by the first plaintiff in favour of appellants or in Ext.A4 rectification deed, the Survey No.495/2 is not retained. By Ext.A4 rectification deed, instead of R.S.No.495/1,R.S. No. 133/4 was substituted. By such substitution, the property in R.S.No.495/1 is taken away and R.S.No.133/4 is substituted thereby the property in R.S.No.495/2 is retained as the property covered by Ext.A3 gift deed. If respondents have not derived any right in R.S.No.495/1, they cannot claim any right over major portion of the disputed property. 7. Learned Munsiff dismissed the suit finding that respondents failed to establish their possession of the disputed property. Learned Munsiff also found that as is clear from Ext.C1 and C3 reports, there is a stone wall on B C and A B line which could only be the demarcating boundary between the properties. Learned Sub Judge on the S.A.946/1996 9 other hand found that when B C line is not extended further upto the northern point Q, it cannot be the boundary wall. Unfortunately learned Sub Judge omitted to take note of the fact that property of respondents ends on the northern C D line and they cannot construct a compound wall towards the north of that plot including from point C upto Q as the property which lies to the west of CQ line and to the north of C D line belongs to a third party Moidu. In such circumstances, the absence of extension of B C compound wall further to the north upto point Q cannot be taken as a valid ground for holding that the stone on walls A B and B C lines are not demarcating boundary wall. 8. It is true that the purchase certificate obtained by appellants also do not show that they have any right in R.S.No.495/1. But for the failure to prove the title of the appellants to the disputed property, a decree cannot be granted in favour of the respondents without establishing S.A.946/1996 10 their possession. Even otherwise when the title deed of respondents do not have any right in R.S.No.495/1, absence of R.S.No.495/1 in the title deed of the appellants makes no difference and cannot be taken as a ground to grant the decree. Though respondents had contended that there was a mud ridge on G F and C F line, demarcating the remaining property of appellants from the disputed property and based on that it is contended that the said property is in their possession and the ridge was demolished by appellants, subsequently it is seen that when DW1 was examined he was not cross examined on this aspect. It is not known how the Commissioner has fixed J L H G as the southern boundary of the property covered by Exts.A1 to A3. The southern boundary shown in Exts.A3 and A4 is a public way. Ext.A1 does not show the southern boundary as a public way. Instead all the four boundaries are shown as paramba. Therefore with reference to the boundaries in Ext.A2, the disputed S.A.946/1996 11 property cannot form part of the property. 9. As rightly pointed out by learned counsel appearing for the appellants, learned Sub Judge should not have accepted the additional evidence at the appellate stage without passing a specific order, as provided under Rule 27 of Order XLI of Code of Civil Procedure. It is seen that I.A.336/1996 was filed in the first appeal by the respondents under Rule 27 of Order XL1 of Code of Civil Procedure to receive the copy of the order in O.A.9232/1976 and the copy of the application filed by the first plaintiff which was numbered as O.A.9232/1976 as additional evidence. The affidavit shows that in the purchase certificate boundaries and all survey numbers are not shown in accordance with the application filed and it was not known to the appellants before filing the appeal and therefore it could not be produced earlier and hence the documents are to be received as additional evidence. The application only shows S.A.946/1996 12 that it was posted for objections. There is not even an order in the petition to show that they were received in evidence much less as additional evidence, as provided under Rule 27 of Order XLI of Code of Civil Procedure. Therefore reliance was placed on those documents was illegal. Even if it is taken that those documents were properly received, they will not make any material difference. The boundaries shown in the application filed before the Land Tribunal are west property of the library, south public way north property of Moidu and east property of the second defendant. The property is shown as 16 cents in R.S.No.495/2 and 50 cents in R.S.No.495/1. As per the northern boundary, no part of the plaint schedule property lies to the south of the admitted property of the appellants. Ext.C2 plan shows that the property which lies to the north of C F line in R.S.No.133/4 is admittedly that of the appellants. If that be so, if the disputed property has been in S.A.946/1996 13 the possession of respondents, the northern boundary of the property would have been shown as not only the property of Moidu, which lies to the north of the C D line, but also the property of the appellants which lies to the north of C F line. It is an indication that even when O.A was filed respondents have not been in possession of the property which lies to the south of C F line. Therefore even if the additional evidence which were illegally received by the Sub Judge were considered they will not enable the respondents to get a decree for injunction which was rightly denied by the learned Munsiff. The house of the appellants marked H2 in Ext.C2 plan is in R.S. No.133/4, the portion which lies on the east of F G line. PW1 admitted that the electric line to that house is drawn from post P1 marked in Ext.C2 plan which is in the disputed property. Ext.B4 order of the District Collector with the evidence of PW1 and DW1 establish that when respondents sought to draw S.A.946/1996 14 electric line from post P1, it was objected to by the appellants on the ground that line cannot be drawn along their property. If the disputed property was in the possession of respondents they would not have allowed to install post P1 in the disputed property or to draw a line along their property to supply electric connected to house H2. That fact is sufficient to disprove the possession claimed by the respondents. When the disputed property cannot be identified as part of the property covered under Ext.A1 or Ext.A3 gift deed or Ext.A4 rectification deed and the physical existence of a stone compound wall on B C line and A B line indicate that the property of respondents do not extent further to the south of A B line or to the east of B C line and when the respondents do not claim any property which lies to the south of C F line, before the Land Tribunal, respondents are not entitled to the decree for injunction based on possession. The decree granted by the learned S.A.946/1996 15 single is therefore not sustainable. The appeal is therefore allowed. The decree and judgment passed by the Sub Judge, Hosdrug in A.S. No.2/1992 are set aside and the decree and judgment passed by the Munsiff, Hosdrug in O.S.9/1989 are restored. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006