IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 RSA.No.1098 of 2007 (E) ------------------------------ AS.53/2005 OF SUB COURT, MANJERI. OS.313/99 OF MUNSIFF COURT, MANJERI. .................... APPELLANT (SECOND APPELLANT/SECOND DEFENDANT) ------------------------------------------------------------------ V. N. SAROJINI, W/O KUTTURIYATH KUNHUPPILLA, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. (FIRST-APPELLANT BEFORE THE COURT BELOW WAS REMOVED FROM PARTY ARRAY IN THE FIRST APPELLATE COURT ITSELF) BY ADVOCATE SRI.RAJESH R. KORMATH RESPONDENT (RESPONDENT/PLAINTIFF) ------------------------------------------------- A. V. DAMODARAN, S/O VELAYUDHAN, 'POIKAYIL HOUSE', MUTTIKADAVU, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.1098 of 2007 ------------------------------------------------ Dated this the 4th day of June, 2008 JUDGMENT The second defendant in O.S.313/99 on the file of the Munsiff's Court, Manjeri is the appellant, she having lost her contentions concurrently before the trial court as well as in the first appellate court. The first defendant in the suit who was the first appellant before the first appellate court was removed from the party array. The plaintiff in the suit is the respondent. 2. The respondent filed O.S.313/99 aforesaid for a decree of permanent prohibitory injunction inter alia on the allegation that the scheduled property originally belonged to Nilambur Kovilakam and he obtained an oral lease of the property and later he applied for purchase certificate and obtained the same and thus, became absolute R. S. A. No.1098 of 2007 -2- title holder of the scheduled property; that the scheduled property is having an extent of 2.96 acres comprised in R.S. No.748/5A of Chungathara village; that the defendants jointly possessed approximately 2 acres of land on the eastern side of the plaint schedule property; that a mud wall is situated at the boundary of both the properties which is having a height of 1 to 1.5 metres which was put up by the plaintiff to draw water for the agricultural operation in the scheduled property from the pump house near to the bank of the river on the southern side of the plaint schedule property; that the pump house was constructed in 1970 and thereafter water was being drawn through the boundary of the scheduled property and the mud wall was to facilitate the free flow of water; that the defendants have no manner of right over the mud wall and the plaintiff alone is using mud R. S. A. No.1098 of 2007 -3- wall for agricultural operations in the property; that on 05/06/99 the defendants tried to erect a barbed wire fence over the mud wall in south to north direction and due to the timely intervention of the plaintiff they could not succeed in constructing the fence, but they threatened that they will erect barbed fence over the mud wall and if they do so the plaintiff would be put to irreparable injury and hardship. On the above allegations, plaintiff advanced prayer for a decree of permanent prohibitory injunction restraining the defendants from entering into the scheduled property and from committing any alterations to the mud wall by erecting barbed wire fence through the mud wall and from committing any act of waste in the scheduled property or from causing any interference for the peaceful possession and enjoyment of the property by the plaintiff. R. S. A. No.1098 of 2007 -4- 3. The appellant as also the first defendant who was removed from the party array while the case was pending before the first appellate court had filed written statement contending inter alia that the scheduled property is not in conformity with the actual lie; that without the measurement of the property no relief can be granted; that the mud wall is not part of the property of the plaintiff; that the defendants are having 2 acres of paddy field on the northern side of the plaintiff's property; that they took the said property from Nilambur Kovilakam on lease arrangement and constructed a mud wall through the southern boundary of the said property with a small canal for the purpose of drawing water from the river which is flowing through the eastern side of the property; that the mud wall lies along the entire breadth of the property of the defendants and it reaches up R. S. A. No.1098 of 2007 -5- to the main road; that both the plaintiff and defendants are having right of passage over the ridge; that while defendants and plaintiff were enjoying their respective fields they jointly decided to construct a pump house and to install a pump to irrigate their fields and thus a pump house was constructed at the eastern end of the mud wall and installed a pump by investing funds in equal shares that since the relationship between the plaintiff and defendant was cordial the defendant agreed to permit the plaintiff to use the canal above the mud wall to draw water to his fields; that in 1980 large quantities of clay deposits were removed from the defendants' property and thereby the level and nature of the field changed; that during the above period plaintiff made attempts to block the mud wall which is the only way to the property of the defendants; that by timely intervention of the R. S. A. No.1098 of 2007 -6- defendants, they could defeat the attempt of the plaintiff; that pursuant thereto a mediation took place whereby the defendants agreed to sell their rights over the pump house and the pump set which was jointly put up by the plaintiff and the defendants for the total consideration of Rs.8,000/- and also permitted the plaintiff to use the mud wall as before; that the terms of the agreement was reduced to writing on 21/04/1981; that the agreement will clearly show that the plaintiff has no independent right, title or possession over the mud wall; that the allegation in the plaint with regard to the separation of the property by a temporary fence using cudjan leaves is false; that barbed wire fence is situated at the southern side of the plaint schedule property running close and parallel to the mud wall; that the fence was so put up to prevent the entry of cattle coming from R. S. A. No.1098 of 2007 -7- southern parts and it is not a boundary as claimed by the plaintiff; that the exact location of the property should be identified through a survey plan; and that if a decree of injunction as sought for by the plaintiff is granted, the defendants will be deprived of their right of way. The defendants also raised an alternative plea of right of easement by prescription over the mud wall and however, prayed for a dismissal of the suit. 4. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PW1, PW2 and DW1 and documentary evidence Exts.A1, A2, C1 and C2, decreed the suit. The defendants filed A.S.53/05 before the Sub Court, Manjeri assailing the said decree and judgment and the said appeal was also dismissed confirming the correctness of the judgment and decree passed R. S. A. No.1098 of 2007 -8- by the trial court. It was pending the said appeal that the first appellant/first defendant was removed from party array. Hence, this R.S.A by the second defendant assailing the concurrent verdicts of the courts below. 5. It is vehemently contended before me by the learned counsel for the appellant that the suit as framed was only for a decree of permanent prohibitory injunction and that should not have been decreed when title was in issue and that the property should have been measured and a plan obtained and that in any event an adverse inference for non-production of the agreement entered into between the plaintiff and the defendants in writing on 21/04/1981 should not have been drawn as the document had been produced before the trial court along with counter filed to the injunction petition along with a petition filed by the defendants for an injunction R. S. A. No.1098 of 2007 -9- against the plaintiff. 6. The suit instituted by the plaintiff was only for a decree of prohibitory injunction. The title of the plaintiff over the scheduled property is not in dispute. According to the counsel, when title over the mud wall is challenged, the plaintiff should have prayed for declaration of the title over the scheduled property or at least over the mud wall and paid court fee thereon under Section 27(a) of the Court Fee Act. The contention is devoid of merit as the dispute raised was only in relation to the exact position of the boundary and the question of possession alone requires to be decided in the suit for granting the relief of injunction prayed for. The question of measuring out of the property also did not arise when there existed a boundary and declaration of title had not been prayed for by the plaintiff. R. S. A. No.1098 of 2007 -10- 7. The grievance of the appellant's counsel that adverse inference was drawn for reason of non-production of the agreement dt.21/04/1981 entered into between the plaintiff and the defendants, also is bereft of any merit. According to the counsel for the appellant, when the document is produced along with the injunction petition by the defendants before the trial court, it is a case of production of the document before court and that should disable drawing of adverse inference. It is worthy to note that the best evidence to establish the contentions of the defence was the said agreement. The said agreement if at all it was produced before the trial court was not brought to the notice of the trial court when the trial took place and the said document was not even attempted to be got marked. Before the appellate court also no request at all is made to mark the said R. S. A. No.1098 of 2007 -11- document. Unless a document is marked, court will not be justified in perusing the document. When the defendants have wilfully avoided or abstained from marking that document if at all it had been produced before the trial court in any interlocutory proceedings that would be a case of withholding the documents as the material document which would have proved the defence contention as per the argument advanced before me was not let in evidence. 8. It is seen that some discrepancy in direction of the property has occurred. According to the plaintiff the property of the defendants is on the eastern side of the scheduled property whereas according to the defendants their property is on the northern side of the scheduled property. The courts below did not give much weight on the above discrepancy as the prayer in the suit was only R. S. A. No.1098 of 2007 -12- for an injunction and the dispute was in relation to the common boundary and on that matter there was no dispute between the parties. The courts below have considered the evidence obtained by issuance of a commission who submitted Ext.C1 sketch and Ext.C2 commission report. The defendants have not filed any objection to the said report and sketch and the courts below cannot be found fault with for relying on the commissioner's report and sketch in the above circumstance. It was found by the courts below that an iron wire fence was put up by the defendants on the eastern side of the mud wall as shown in Ext.C1 sketch (eastern if we go by the plaintiff's case and northern if we go by the defendants' case). The courts below found that putting up of an iron wire fence leaving the mud wall within the scheduled property is sufficient indication as regards possession of R. S. A. No.1098 of 2007 -13- the property up to the fence by the plaintiff. The contention that the fence was put up to prevent cattle from trespassing also did not find favour with the courts below for reasons discussed in the judgment. As rightly observed by the courts below, had the agreement entered into between the parties on 21/04/1981 as contended by the defendants been proved in evidence that would have thrown light on the dispute involved in the case, but that was not let in evidence. It cannot but be said that the document was not being let in evidence wilfully for the reason that through the trial court as well as the first appellate court were finding fault with the non-production of that document, the plaintiff did not seek to get the said document marked. If at all there was such an agreement on mediation, the defendant could have cited the mediators who participated in the mediation to prove that R. S. A. No.1098 of 2007 -14- there was such a mediation but that was not done. The courts below also observed that DW1 has admitted that the canal on the mud wall was being used by the plaintiff. Even the contention in the written statement of the defendant is that the mud wall was being used as a passage both by the plaintiff and the defendants. Strangely enough an alternative plea of right of easement by prescription was also advanced by the defendants over the mud wall, though however, no evidence was adduced on that aspect either. Courts below also observed that Ext.C2 report showed that the iron wire fence was there on 19/06/99 just three days after the filing of the plaint as reported in Ext.C2 by the Commissioner and the age of the said fence as disclosed by the defendants to the Commissioner as on the date of the inspection was one month. No objection is filed to the Commissioner's report by the R. S. A. No.1098 of 2007 -15- defendants and therefore, Ext.C2 report has to be accepted on that aspect as well. It was in the above circumstance that the courts below concurrently found that the plaintiff is in possession of the property up to the demarcating boundary fence put up by the defendants and it was consequently that decree of prohibitory injunction was granted in favour of the plaintiff. There is absolutely no substantial questions of law arising for consideration in this R.S.A and this R.S.A deserves to be dismissed in limine refusing admission. 9. In the result, refusing admission I dismiss this R.S.A in limine. K.P.BALACHANDRAN, JUDGE kns/-