IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.S.GOPINATHAN MONDAY, THE 13TH DAY OF JULY 2009/22ND ASHADHA 1931. SA.No. 506 of 1994 ( ) ---------------------- (AGAINST THE JUDGMENT IN AS 125/1993 of MUNSIFF COURT, THALASSERY, DATED 20-10-1993) (AGAINST THE JUDGMENT IN OS 165/1987 of MUNSIF COURT, KUTHUPARAMBA, DATED 31-03-1993) APPELLANTS/DEFENDANTS 3 TO 8 AND 11/RESPONDENTS 1 TO 6:- ------------------------------------------------------- 1. PANAYADAVEETTIL KADATHANADAN KUNHIMATHA @ MADHAVI, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, TELLICHERRY. 2. OORALIKANDY KADATHANADAN PREMAN, DO. DO. 3. PREMA, DO. DO. 4. PRASANNA, DO. DO. 5. PREETHA, DO. DO. 6. ALAKKAT JANU, ELAYATHIL HOUSE, KUTHUPARAMBA, NARAVOOR, TELLICHERRY. 7. SAJEEVAN, DO. DO. RESPONDENTS/PLAINTIFF & DEFENDANTS 9 & 10/APPELLANT AND RESPONDENTS 7 & 8:- ------------------------------------------------------------------------- 1. MANGADAN KUTTAMPALLY RAGHAVAN, KUTHUPARAMBA AMSOM, NARAVOOR, TELLICHERRY. 2. MANOJ, ELAYATHIL HOUSE, DO. DO. 3. VIMALA, W/O.MOHANAN, KARIPPACHERRY HOUSE, DO. DO. R1 BY ADV.SRI.R.PARTHASARATHY R2 BY ADV.SRI.BEPIN VIJAYAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kvs/- P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.506 of 1994. = = = == = = = = = = = = = = = = = = Dated this the 13th day of July, 2009. J U D G M EN T The appellants are the defendants 3 to 8 and 11 in OS.No.165 of 1987 on the file of the Munsiff Court, Kuthuparamba. The respondents are the plaintiff and defendants 9 and 10. The first respondent who was the plaintiff before the trial court instituted the above suit against two defendants namely, Cheruvalath Ooralikandy Achuthan and Ellayathil Thayath Kunhikannan. Pending suit they died. Their legal heirs were impleaded as supplementary defendants 3 to 11. The first respondent in his plaint contended that the plaint schedule property was obtained to him by virtue of Ext.A1 assignment deed executed in his favour by the mother who was a lessee of the plaint schedule property and that thereafter the first respondent obtained Ext.A2 purchase certificate and he had become the absolute owner and had been enjoying the property. The deceased defendants were in possession of a property lying west of the suit property, based on the decree passed in the partition suit OS.No.40/1954 and that the property of the plaintiff and the defendant were lying separate with SA.No.506 of 1994. -: 2 :- demarcated boundaries and that the defendants had absolutely no manner of right over the plaint schedule property. But they had been attempting to trespass into the plaint schedule property and that the first respondent/plaintiff was not in a position to resist the high-handed action. Hence he sought for a decree of permanent prohibitory injunction. 2. The deceased defendants filed a written statement contenting that they got their properties by virtue of the final decree in OS.No.40/1954 and it was lying separate with demarcating boundaries and had been in their absolute possession. It was further contended that the group consisting of first respondent's mother was allotted the property on the southern side and that she had got no property in or around the defendant's property that the plaint schedule property is not identifiable and that the plaintiff had no cause of action and prayed for dismissal of the suit with costs. 3. After raising the issues, the parties were sent for trial. On the side of the first respondent, Pws.1 and 2 were examined and Exts.A1 to A8 were marked. On the side of the defendants, Dws.1 to 3 were examined. Dw1 is the 4th defendant. Exts.B1 to B7 were marked. Three reports and plans submitted by the commissioner were marked as Exts.C1 to C6. The trial court on appraisal of reports arrived at a conclusion that no reliance can SA.No.506 of 1994. -: 3 :- be given to Ext.A2 purchase certificate and that the first respondent had miserably failed to prove his case as well as the identity of the plaint schedule property. Consequently the suit was dismissed. 4. Assailing the above said judgment and decree, the first respondent preferred an appeal as AS.No.125 of 1993. By judgment and decree dated 20.10.1993 the lower appellate court reversed the judgment and decree of the trial court by holding that the first respondent had succeeded to establish that the plots marked A2 to A6 as shown in Ext.C6 plan is the plaint schedule property, over which the defendants had no manner of right. Consequently the appeal was allowed. While setting aside the judgment and decree of the trial court, the suit was decreed as prayed for in respect of plots A2 to A6 in Ext.C6 plan. Assailing the above judgment and decree, this second appeal was preferred. 5. Following are the substantial questions of law raised in the appeal memorandum. (i) Was the lower appellate court justified in finding plaintiff's title in respect of plot A2 to A6 without any identification of the property with reference to the particulars contained in Ext.A1? (ii) Is the attempt of the lower appellate court to identify the suit property with reference to Ext.A7 and C6 by a SA.No.506 of 1994. -: 4 :- superimposition of Ext.A7 on Ext.C6 legal and justifiable? (iii) Is the reliance placed by the appellate court on the recital regarding boundary in Ext.A8 to which the defendants are not parties legal and justifiable? (iv) Has not the lower appellate court wrongly cast the burden on the defendants to make out that the suit property is included in the properties allotted to their predecessors as per the final decree in OS 40/57? (v) Was the lower appellate court justified in interfering with judgment and decree of the trial court? 6. The appellant filed IA.No.2078/2008 whereby the following additional questions of law were also raised. (i) Was the lower appellate court justified in finding plaintiff's title in respect of plot A2 to A6 without any identification of the property with reference to the particulars contained in Ext.A1? (ii) Is the attempt of the lower appellate court to identify the suit property with reference to Ext.A7 and C6 by a superimposition of Ext.A7 on Ext.C6 legal and justifiable? (iii) Is the reliance placed by the appellate court on the recital regarding boundary in Ext.A8 to which the defendants are not parties legal and justifiable? (iv) Has not the lower appellate court wrongly cast the burden on the defendants to make out that the suit property is included in the properties allotted to their predecessors as per the final decree in OS.No.40/57? SA.No.506 of 1994. -: 5 :- (v) Was the lower appellate court justified in interfering with judgment and decree of the trial court? 7. The learned counsel on either side were heard in detail. The dispute is regarding the identity of the plaint schedule property and not with regard to the title. According to the learned counsel for the appellant, to succeed in a suit for prohibitory injunction, the plaintiff shall prove his case and would not be entitled to succeed for the failure of the defendants to establish their defence. Reliance was also placed in the decision reported in MMB Catholicos v. M.P.Athanasium (AIR 1954 SC 526). It was further argued that the trial court had correctly dismissed the suit and the trial court's decree was interfered by attempting to identify the property with reference to the title of the defendants without considering the possession of the first respondent and thus the appellate court had gone wrong and the decision rendered by the appellate court based upon the case set up by the defendants is perverse and not sustainable. It was also argued that though the defendants had disputed the title of the first respondent, he had not amended the plaint to declare his title and the identification of the property by the lower appellate court with reference to the so called title deeds which was challenged by the appellants is illegal and not justified. SA.No.506 of 1994. -: 6 :- 8. The learned counsel for the first respondent, on the other hand, submitted that the first respondent had not sought for any declaration of any title but he had attempted to trace out the possession with reference to the title deed in his favour over which the appellants had no manner of right and that the property acquired by the appellants and the first respondent are entirely separate and under separate title deeds and that the commissioner had properly identified the property with the help of the surveyor and absolutely there is no dispute regarding the identity of the property over which the first respondent claims possession. 9. Having heard either side, I find that though the dispute is with regard to the identity of the property and it is mainly a question of fact, which in the ordinary course is not entertainable in second appeal, the lower appellate court had committed serious error and illegality in appreciating the evidence as well as in identifying the property and a portion of the property identified as that of the first respondent is really not that of his and by granting decree of injunction in respect of a portion over which the first respondent has no right, there is miscarriage of justice. 10. The plots A1, A2, A3, A4 , A5 and A6 in Ext.C6 were identified by the first respondent as his property covered by Exts.A1 and SA.No.506 of 1994. -: 7 :- A2. On the other hand, the case of the appellants is that they obtained the property by virtue of the final decree in OS 40/1954 and Ext.A7 plan, which is not disputed by the first respondent. The commissioner had located the plaint schedule property with reference to Ext.A7. A look at Ext.C6 would show that plot A1 in Ext.C6 is part and parcel of plot A in Ext.A7. For that reason, the lower appellate court omitted that plot. Regarding that, the first respondent has no quarrel. The lower appellate court found that plots A2 to A6 in Ext.C6 are the properties claimed by the first respondent. At the same time, a scrutiny of Ext.C6 would show that the plots A2 and A3 are part of plot B in Ext.A7. Pw1 in unambiguous term deposed that plot B in Ext.A7 was obtained to his mother and others and it was alienated by virtue of Ext.A8. There is no case for the first respondent that he had got any title or possession over plot B in Ext.A7 plan. If that be so, the first respondent could not claim any possession over plots A2 and A3 as it is part and parcel of plot B in Ext.A7. So, the finding of the lower appellate court regarding plots A2 and A3 is contrary to the evidence on record and is not sustainable. 11. Coming to the possession regarding Exts.A4, A5 and A6 it is seen that it is beyond south of the plot B in Ext.A7. The plots A and C in Ext.A7 are lying on the north of plot B. The predecessors of the appellants SA.No.506 of 1994. -: 8 :- unambiguously stated that the property claimed by them is plots A and C in Ext.A7. They had also been fair to make request that their property may be demarcated and they do not want any other property. The side measurements of plots A and C in Ext.C6 would show that it exactly tallied with the side measurements of plots A and C in Ext.A7. Those plots are lying beyond north of plot B. So, it would no way form part of plots A4, A5 and A6 in Ext.C6 plan. Since the claim of the appellants is only on plots A and C in Ext.A7 and having those plots remaining far away from plots A4, A5 and A6 in Ext.C6, it could be safely concluded that plots A4, A5 and A6 now claimed by the first respondent as his property covered by Exts.A1 and A2 is not the property claimed by the appellants. 12. According to the learned counsel for the appellants, Ext.A1 assignment deed is basing upon an oral lease and that Pw1 had deposed that he was not aware of any lease transaction, namely, what was borne out in Ext.A1 and so, no reliance can be given to Ext.A2 purchase certificate or the title or possession of the first respondent. The learned counsel had also submitted that the production of the tax receipts namely, Ext.A3 series also cannot be treated as a piece of evidence regarding possession. But the suit being one for prohibitory injunction and there is no prayer for declaration of SA.No.506 of 1994. -: 9 :- title, it is needless to go into the title of the first respondent over the disputed property under Exts.A1 and A2. In my opinion, having the disputed property identified by surveying the property with reference to the available documents and having found that the property claimed by the appellants on the strength of Ext.A7 are lying at a distant location, it need be looked into as to whether the possession in respect of plots A4, A5 and A6 tallies with the evidence adduced by the first respondent. The lower appellate court had already on appraisal of evidence arrived at a conclusion that plots A4, A5 and A6 along with plots A2 and A3 are in the possession of the first respondent. In arriving at a conclusion the lower appellate court had noted that on the western side of plots A2 and A3, there is a mud wall demarcating the property and that plots A4, A5 and A6 are lying contiguous with plots A2 and A3 and that in plots A4 and A5, there is a foundation of the house and a well. The lower appellate court believed the evidence of Pw1 that the well was dug by him and that the foundation was constructed by him. The appellants had no counter case. Though the case of Dw1 is that plots A4, A5 and A6 are the part of plots A and C in Ext.A7, that did not appear to be correct because as I mentioned earlier, plots A4 to A6 in Ext.C6 are lying separately from plots A, B and C in Ext.A7. So, in respect SA.No.506 of 1994. -: 10 :- of plots A4, A5 and A6, as against the evidence of Pw1 that those items are in his possession, there is no contra evidence. According to the first respondent, the property possessed by him measures one acre. But plots A4, A5 and A6, altogether measures 63 cents as per Ext.C3. But it is crucial to note that in he plaint, the first respondent had conveniently omitted the total extent of the property. However, plots A2 and A3 in Ext.C6 plan being part and parcel of plot B in Ext.A7 and the first respondent having no claim over that plot in Ext.A7, plots A2 and A3 could not be added to plots A4 to A6 to make good the deficit in extent. In the above circumstances, on going through the judgment of the lower appellate court and the evidence on record, I find that by no stretch of imagination, the plots A2 and A3 would become part of the property claimed by the first respondent, whereas plots A4, A5 and A6 in Ext.C6 plan forms part of the disputed property and the appellants had no manner of claim over those portions. The finding of the lower appellate court that the first respondent succeeded to establish possession over plots A2 and A3 in Ext.C6 is perverse and unsustainable. 13. To conclude, I find that the first respondent had succeeded to establish his possession over plots A4, A5 and A6 alone in Ext.C6 and not over plots A2, A3, A4, A5 and A6 as found by the lower appellate Court. SA.No.506 of 1994. -: 11 :- So, the judgment and decree of the lower appellate court require interference to that extent. In the result, this appeal is allowed in part. While modifying the judgment and decree of the lower appellate court, the injunction granted in favour of the first respondent is confined to plots A4, A5 and A6 in Ext.C6 plan. Ext.C6 would form part of the decree. The suit would stand decreed as above. The parties are directed to suffer their respective costs. Sd/- P.S.GOPINATHAN, JUDGE. Kvs/- // True copy //