IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 SA.No. 654 of 1996(C) --------------------- AS.80/1992 of SUB COURT, PAYYANNUR OS 44./1990 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- KOTTAKKAT KIZHAKKE MATATHIL GOVINDAN NAMBISSAN, S/O.PARAMESWARI AMMA, RESIDING AT KOROME AMSOM & DESOM. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.K.P.SANTHI RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. VATTIAN VEETTIL MANICKAM, D/O.CHIRI, RESIDING AT KOROME AMSOM & DESOM. 2. BHASKARAN, S/O.MANICKAM, RESIDING AT -DO- -DO- 3. GANGADHARAN, S/O.MANICKAM, LORRY DRIVER, RESIDING AT -O- -DO- 4. VATTIAN VEETTIL KARTHIYAYANI, D/O.MANICKAM, RESIDING AT -DO- -DO- 5. PUTHIYA PURAYIL CHANDRAN, S/O.KELU, RESIDING AT -DO- -DO- 6. VATAKKE VEETTIL RAGHAVAN, S/O.CHANDRAN KUNHI, BLACK SMITH, RESIDING AT KOROME AMSOM & DESOM. ADV. SRI.T.A.RAMADASAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.654 of 1996 -------------------------------------- Dated this the 19th day of March, 2009. JUDGMENT The following substantial questions of law arise for a decision in this Second Appeal at the instance of the plaintiff who lost successively in the courts below: (i) Whether in a suit for injunction simplicitor, the court below is justified in recording a finding on the title of the plaintiff over the plaint schedule property, and whether the finding on title of the plaintiff is unnecessary in law? (ii) Whether the courts below committed illegality in recording a finding on the title of the plaintiff over the plaint property when the court held that the plaintiff has not taken out a commission to identify the plaint schedule property, in which case, is it necessary further for the appellate court to record a finding on the title and possession of the plaintiff over the plaint property and whether such finding of the court below is illegal? (iii) Whether on the facts and circumstances of the case, should not the court below remand the suit to the trial court giving an opportunity to the appellant to take out a commission to identify the plaint schedule property, or in SA No.654/196 2 case that course is not resorted to by the appellate court, should not the court below leave open the question of title of the plaintiff over the plaint property to be agitated in a subsequent suit for recovery of the plaint schedule property? 2. Suit as originally filed is for a decree of permanent prohibitory injunction claiming that appellant/plaintiff is in possession of the suit property and paying the court fee under Section 27(a) of the Court Fees and Suits Valuation Act (for short, “the Act”). Appellant claimed that he acquired the property on kuzhikkanam right from Kunhiveettil Kammaran as per registered assignment deed No.799 of 1973 (Ext.A1 is its certified copy). It is also his case that though Ext.A1 referred to R.S.No.3/1A, he learnt that the correct re-survey number of the property is 3/1C. Alleging that respondents/defendants are attempting to trespass into the suit property he laid the suit. Respondents contended that neither the appellant nor his predecessor had any right, title, interest or possession of the suit property and that the appellant had not acquired any right as per Ext.A1, assignment deed. It is also the contention of the respondents that the suit property is not identifiable. Property referred to in the plaint schedule belonged to Vatyam Veedu tharawad (hereinafter referred to as “tharawad”) of the respondents. In respect of the properties belonging to the tharawad, a preliminary decree was passed in O.S.No.133 of 1972. Application for final decree is pending. According to the respondents, property described in the plaint schedule is also included in that preliminary decree. As per the preliminary decree the said property is allotted to the share of the respondents, SA No.654/196 3 Saraswathi and Radha. Pursuant to the contentions raised by the respondents as to the title claimed by the appellant, plaint was amended and the relevant Section of law for payment of court fee was amended as Section 27(a) of the Act as if an enquiry into the title of the property was required. In the courts below, appellant gave evidence as PW1 and proved Exts.A1 to A5. Exts.A2 to A4 are receipts for payment of revenue. PW2 is one of the attestors in Ext.A1 and said to be owning property on the north of the suit property. He stated that appellant is in possession of the suit property. Respondent Nos.2 and 5 gave evidence as DWs 1 and 2. They proved Exts.B1 to B12. DW3 is the advocate commissioner in O.S.No.133 of 1972. He proved Exts.B13 to B22, the C.C. of sketch plan in O.S.No.133 of 1972. DW3 was appointed as commissioner for division of the properties in the final decree proceedings. He stated that he inspected the property comprised in R.S.No.3/1C (over which the appellant is now attempting to lay hands) and that the suit property is marked as plots C and D in Ext.B20 and allotted to respondents 13 to 18 in O.S.No.133 of 1972. Learned Munsiff found that the identity of the suit property is not established and that evidence adduced by the appellant is quite insufficient to prove the title and possession claimed by him. Accordingly, suit was dismissed. First appellate court has agreed with the said findings of the learned Munsiff. 3. It is contended by the learned counsel for appellant that the findings entered by the courts below are erroneous. Learned counsel contended that the courts below found against the title and possession claimed by the SA No.654/196 4 appellant as no commission was taken out to identify the suit property and as the prior documents of Ext.A1 are not produced. Learned counsel submits that the prior documents are produced in the Second Appeal along with C.M.P.No.790 of 2002. Learned counsel therefore, requested that the case may be remitted to the trial court to give the appellant an opportunity to take out an advocate commission to identify the property and to prove the documents produced along with C.M.P.No.790 of 2002. Learned counsel for respondents contended that evidence of appellant as PW1 would show that he has neither title nor possession of the suit property and that as rightly found by the first appellate court, he is only a tool in the hands of PW2. Learned counsel placed reliance on the decision of the Apex Court in Gurdev Kaur v. Kaki (AIR 2006 SC 1975) that this Court is not justified in interfering with the findings entered by the courts below in so far as no question of law and much less any substantial question of law is involved and however wrong or grossly inexcusable is the finding of fact entered by the courts below, interference in Second Appeal is not warranted. 4. Though the suit is one for a decree of prohibitory injunction based on possession claimed by the appellant, he has paid court fee under Section 27(a) of the Act in view of the dispute on title raised by the respondents inviting an enquiry into the title. Therefore, courts below were obliged to enquire into and enter a finding on the title claimed by the appellant. In spite of the respondents specifically contending that the suit property is not identifiable, SA No.654/196 5 appellant has not taken steps to get the property identified with the assistance of a surveyor. A commission was taken out at the instance of the appellant but that was only to ascertain the market value of the property for payment of court fee under Section 27(a) of the Act. Even at that stage the appellant did not take steps to get the property identified with reference to his title deed. Merely because the advocate commissioner stated in the report that he identified the property with the assistance of the appellant, it cannot be said that property is identified and covered by Ext.A1. Though in Ext.C1, report it is stated that the appellant was present on the spot at the time of inspection, at the time of examination he stated that he had no notice about the inspection, he was not present and that he had not shown the suit property to the commissioner. But it is seen that PW2 (he is one of the attestors in Ext.A1) who spoke in favour of the appellant about his title and possession of the suit property and who allegedly owned property on the north of the disputed property was present at the time of inspection. It has come in evidence that PW2 was a witness in a criminal case initiated at the instance of the appellant against the respondents on the allegation that they trespassed into the disputed property and conducting quarry and as per evidence, that case ended in acquittal. Going by the evidence of PWs 1 and 2, PW2 was more vibrant in giving evidence about the case of the appellant while the appellant remained almost dormant. It is also seen from the evidence of PW1 that he has no idea about the suit property, nor even about his prior documents of title. His evidence shows that he has not conducted any enquiry about the title of his assignor, nor has he seen atleast a SA No.654/196 6 copy of those documents (it is those documents which are now pressed into service vide C.M.P.No.790 of 2002). Ext.A1 is only a certified copy of the assignment deed dated 6.8.1973. Appellant is not in possession of the original of Ext.A1. Interestingly, it is PW2 who took the original of Ext.A1 from the office of the Sub Registrar. When the appellant is not in possession of the original of Ext.A1 which PW2 collected from the office of the Sub Registrar, one is tempted to think that the original continued to be in the custody of PW2. There is merit in the contention of the respondents that PW2 who admittedly is a member of the tharawad and who is an executant in Ext.B2, partition deed is the man behind the whole show. Appellant as PW1 states that Menavan told him that the suit property is comprised in R.S.No.3/1C but he has not enquired about that also. Exts.A2 to A5 show that appellant paid revenue for the land comprised in R.S.No.3/1C but, the resurvey number in Ext.A1, assignment deed continues to be 3/1A. Appellant (PW1) is not even aware as to when onwards the adjoining owners are holding properties on the boundary of the suit property. He is also not aware of the total extent of the land in R.S.No.3/1A or R.S.No.3/1C. 5. On the other hand, respondents have produced documents to show that the property including the one comprised in R.S.No.3/1C is the subject matter of O.S.No.133 of 1972 and preliminary decree was passed in respect of the said property as well. Ext.B20 shows that the property comprised in R.S.No.3/1C was partitioned by DW3, advocate commissioner in O.S.No.133 of SA No.654/196 7 1972 and plots are allotted to some of the defendants in O.S.No.133 of 1972. True, DW3 stated in cross examination that he does not know whether his report was accepted and DW1 (respondent No.2) admitted that the application for final decree was dismissed as not pressed. That does not mean that the report prepared by DW3, advocate commissioner was not accepted by the court in O.S.No.133 of 1972. It is based on the above evidence that the courts below found that the appellant failed to prove title and possession over the suit property. 6. Next question is whether the prayer for reception of additional evidence is to be allowed at this stage. As per C.M.P.No.790 of 2002, some of the prior documents of Ext.A1 are produced but, there is no sufficient explanation why those documents were not produced in the trial court or atleast in the first appellate court. What is discernible from C.M.P.No.790 of 2002 is that the appellant was advised when the Second Appeal was pending that the prior documents of Ext.A1 are required and thereon he obtained copies of the relevant documents. That is not a justifiable reason to bring additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. Moreover, I stated from the evidence of the appellant as PW1 that he had no idea about the suit property, he had not seen any of the prior documents of title, nor even the original of Ext.A1 which is seen collected by PW2 from the office of Sub Registrar. In the circumstances, a remand as requested cannot be entertained. SA No.654/196 8 Parties are fighting over this property for the last 19 years. I do not think that a remand under any circumstances is required. There is no illegality or irregularity in the findings of the courts below. 7. No other point is raised for consideration. Resultantly, this Second Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH, Judge. cks SA No.654/196 9 Thomas P.Joseph, J. S.A.No.654 of 1996 JUDGMENT 19th March, 2009.