IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 SA.No. 798 of 1995 (C) -------------------- (AS.55/1989 of SUB COURT, CHERTHALA OS.427/1986 of PRL.MUNSIFF COURT, CHERTHALA) .................... APPELLANTS/RESPONDENTS 2 AND 4 – DEFENDANTS 2 AND 4: ----------------------------------------------------------------------------------------- 1. VADTHYAN KUTTY, S/O.BOUSING KATTUPURAKKAL, RESIDING AT LAKSHAM VEEIL, CHERTHALA, VADAKKUM VILLAGE. 2. KUNJUKUNJU, RESIDING AT LAKSHAM VEETIL OF DO. BY ADV. SRI.V.N.SWAMINATHAN RESPONDENTS (APPELLANTS AND 1ST RESPONDENT – PLAINTIFFS AND 1ST DEFENDANT) : ----------------------------------------------------------------------------------------------------------------- 1. REETHA MARIYAM, W/O.JEROME, RESIDING AT PALLYATH THAYYIL, VADAKKUM MURI, CHERTHALA NORTH VILLAGE. 2. JEROME ALIAS CHINGAPPAN, S/O.JESSENJU RESIDING AT – DO. DO. 3. CHERTHALA SOUTH PANCHAYAT, REPRESENTED BY ITS EXECUTIVE OFFICER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 798 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010. JUDGMENT Defendants 2 and 4 in O.S. 427 of 1986 are the appellants before this court. The trial court dismissed the suit while the lower appellate court reversed the same and granted a decree in favour of the plaintiffs. The parties and facts are herein after referred to as they are available before the trial court. 2. The suit was one for injunction. According to the plaintiffs, they obtained 33 cents of property in Sy. No.12/25B as per Ext.A1 dated 28.2.1963. According to them, the property lies within well defined boundaries. The property of the plaintiffs and the defendants, going by the plaint averments, is separated by a thodu. According to the plaintiffs, there are two coconut trees, two arecanut trees and one Anjili tree standing in the property. They submit that they are taking usufructus from the trees standing in the property. According to the plaintiffs, the defendants S.A. 798/1995. 2 issued two notices to them alleging that they have encroached into the puramboke property and they were constrained to lay the suit. 3. The defendants resisted the suit. They admitted that the plaintiffs have got 33 cents in Sy. No.12/25B. According to them, the description of the plaint schedule property is incorrect. The plaintiffs' property lies on the northern side of the thodu and they have no property on the southern side. The Panchayat has acquired the property on the south western side of the thodu for Lekshom Veedu colony. It is pointed out that the plaintiffs' as well as the defendants' property is separated by the thodu, which is being maintained by the Panchayat, and that is sufficient to show that the plaintiffs have no property further to the south of the said thodu. The defendants also contended that the disputed portion of two cents actually belong to the Panchayat, which has been subsequently assigned in favour of defendants 2 and 4. They therefore prayed for a dismissal of the suit. S.A. 798/1995. 3 4. Necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4. The defendants examined D.Ws.1 to 5 and had Exts. B1 to B9 marked. Exts. C1 and C1(a) are the commission report and plan. 5. The trial court after an elaborate consideration of the evidence before it came to the conclusion that the plaintiffs had miserably failed to establish the possession, which is sine qua non in a suit for injunction and therefore dismissed the suit. Plaintiffs carried the matter in appeal. The lower appellate court held that the panchayat has not produced any document to show that they were taking income from the trees standing in the disputed portion of the property, and decreed the suit as prayed for. 6. The said judgment and decree are assailed in this appeal. 7. The following questions of law have been formulated in the memorandum of Second Appeal: S.A. 798/1995. 4 “A. Whether the lower appellate court committed an illegality in not dealing with the reasons given by the trial court while reversing the finding of trial court. B. Since the thodu marked in Ext.C1(a) plan was treated as puramboke, whether the court below justified in granting a decree in respect of property south of thodu.” 8. Learned counsel appearing for the appellants points out that the lower appellate court has not adverted to the various aspects considered by the trial court in its judgment, which is a well considered judgment, whereby it dismissed the suit. Learned counsel drew the attention of this court that when the suit is one for injunction, the principal question is one of possession. There was absolutely no evidence to show that the plaintiffs exercised any act of possession over any portion of the disputed property. Merely because the defendants did not produce any documents to show that they have taken income from the property, that by itself is not sufficient to grant a decree in favour of the plaintiff. S.A. 798/1995. 5 9. There seems to be considerable force in the above submission. Admittedly the disputed property has an extent of 2 cents. It is true that the Commissioner in his report has shown that the disputed property lies in Sy. No. 12/15. But one must notice that the Panchayat had issued two notices to the plaintiffs saying that they are in unauthorized occupation of the puramboke property and that proceedings are sought to be initiated against them. What is significant is that in the commission report, the thodu, which is shown in blue colour, lies in Sy. No.12/15. The disputed property lies on its southern side. The second plaintiff as P.W.1 had admitted that the thodu, which is shown in blue colour, is being maintained by the Panchayat. If as a matter of fact the thodu belongs to the plaintiffs, one fails to understand as to why the Panchayat should maintain the same. 10. Further, the lower appellate court has noticed the evidence furnished D.Ws.1 to 5. From the evidence, the lower appellate court has found that the thodu, which is S.A. 798/1995. 6 shown in brown shade in the commission report, had been reclaimed and the suit property lies in between the blue shaded thodu and the long before reclaimed thodu. Going by the commission report, there are trees standing in the disputed property. One must remember that the plaintiffs have claimed that an Anjili tree is standing in the disputed property. The commission report is very clear that there is no Anjili tree at all. 11. True, as already stated, the plaint schedule property, which is shown to have 33 cents may takes in the disputed property. But that by itself is not sufficient to give a decree in favour of the plaintiffs. 12. There is absolutely no evidence at all to show that the plaintiffs had ever taken usufructus from the trees standing in the disputed property. It is also rather odd to hold that when there is a thodu, which is admittedly maintained by the Panchayat, on the southern side of the plaintiffs' property, they could still have property on the southern side of the thodu. One is not forgetting the fact S.A. 798/1995. 7 that the Commission report does show that the thodu now in existence is in Sy. No. 12/15. The Commissioner has also noticed that there is a coconut tree standing on the reclaimed portion of the thodu, the Panchayat has produced Ext. B7 measurement book. Ext.B7(a) entry in the said book will show that the thodu now seen in blue shade in the plan is now being maintained by the Panchayat, and the oral evidence furnished by D.Ws. 1 to 5 will clearly reveal that the acts of possession are being exercised by the defendants. It was taking into consideration these aspects that the trial court dismissed the suit. 13. As rightly pointed out by the learned counsel for the appellants reliance placed on the decision reported in S.V.R. Mudaliar v. Rajabu F. Buhari (AIR 1995 SC 1607) by the lower appellate court is inappropriate. The lower appellate court did not consider the various aspects, which persuaded the trial court to dismiss the suit. The lower appellate court has gone by the title, which was not the issue at all, and the question was one of possession. The S.A. 798/1995. 8 reason for the trial court to hold that the plaintiffs have not been able to prove their possession has already been discussed. Before the appellate court there was nothing to show that the plaintiffs have exercised any act of possession over the disputed property. 14. The Panchayat claims to have acquired the property as per Ext.B6. D.W.1 is the predecessor in office of the Panchayat. He has categorically stated that he has been taking usufructus from the disputed property. 15. The lower appellate was therefore not justified in reversing the judgment and decree of the trial court, which was rendered after considering the entire evidence on record. Merely because the Panchayat has not produced any document to show that they have been taking the income from the disputed property does not mean that the plaintiffs are in possession. As rightly noticed by the trial court, there is nothing to show that the plaintiffs have exercised acts of possession over the suit property. S.A. 798/1995. 9 16. May be that the plaintiffs are entitled to the suit property. But they have not been able to prove acts of possession over the suit property especially when it is noticed in the commission report and accepted by the court below that there is a thodu separating the two properties. For the above said reasons, the judgment and decree of the lower appellate court is set aside and the judgment of the trial court is restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.