IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 RSA.No. 1030 of 2009() ---------------------- AS.346/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.182/1999 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. GOVINDANKUTTY, S/O.SANKARANAYANAN, AGED 67 YEARS, CHERIYA VADAKKEPATTU HOUSE, ANJUMOORTHY, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. RADHAKRISHNAN, S/O.SANKARANAYANAN, AGED 46 YEARS, -DO- -DO- BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- SARADA, W/O.SIVADASAN, AGED 53 YEARS, THRIKKADIKKUNNATHU HOUSE, ANJUMOORTHY, MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1030 of 2009 -------------------------------------- Dated this the 13th day of November, 2009. JUDGMENT The Second Appeal arises from judgment and decree of learned Additional District Judge-I, Palakkad in A.S.No.346 of 2003 confirming judgment and decree of learned Munsiff, Alathur in O.S.No.182 of 1999. Respondent sued appellants for a decree for prohibitory injunction describing the suit property as 25.5 cents in survey No.317/7A and acquired by her as per Ext.A1, assignment deed No.1315 of 1978. She claimed that property of the appellants is situated on the south and west of the suit property. On the apprehension that appellants might trespass into the suit property respondent laid the suit. Appellants contended that suit property is not identifiable and disputed title and possession of respondent over it. They claimed that appellant No.2 and her sister, Usha, Lokanayaki and brothers acquired and are in possession of 71 cents in re-survey Nos.317/2 and 317/7A as per Ext.B2, assignment deed No.2956 of 1974. They also claimed that if any portion of that property comes within description of the suit property, respondent has no title or possession over that portion. Trial court found from the evidence that respondent is in possession of the suit property which on measurement by the advocate commissioner with the assistance of the Taluk Surveyor was found to be 28 cents in extent and granted injunction against appellants. First appellate court confirmed the RSA No.1030/2009 2 finding of learned Munsiff and dismissed the appeal. Hence the Second Appeal raising by way of substantial question of law whether in the light of the description of the property in Ext.A1, courts below are justified in holding that respondent is in possession thereof and granting a relief particularly in the light of Exts.B1 and B2 produced by the appellants. 2. The suit being one for decree for injunction alone, what is relevant for a decision is only whether respondent is in possession of the suit property. Except where the property involved is vacant land where title may have to be referred to for the purpose of deciding possession or for the limited purpose of tracing possession reference to the title deed is necessary, it is not necessary to conduct enquiry into title when the suit is merely for injunction based on possession. It is not the case of appellants that the suit property is vacant land so that enquiry into title is necessary for a decision on the issue of possession. Ext.A1 is the title deed produced by the respondent. Exts.A2 and A3 are its prior documents. Respondent has produced Ext.A4, series, receipts for payment of revenue for the suit property for the period from 1970. On the opposite side appellants have produced Exts.B1 to B15. Ext.B2 is the assignment deed in favour of appellants and others and Ext.B1, its prior document. Appellants have produced documents to prove payment of revenue for the property belonging to them. Advocate commissioner inspected the property and submitted Exts.C1 and C2, report and plan. Appellants preferred objection to Exts.C1 and C2 and requested that the same may be set aside. Trial court without setting aside the same remitted it to the advocate commissioner for RSA No.1030/2009 3 further report and plan. Thereafter with the assistance of Taluk Surveyor property was measured. Exts.C3 and C4 are report and plan. Commissioner has measured the properties with reference to the relevant documents and reported that the suit property is comprised in old survey No.317/7A (re-survey No.295/6 (13 cents) and 306/1 (15 cents). As per the measurement of commissioner, total extent of the suit property is 28 cents. The property of appellant No.2 and others covered by Ext.B2 was also measured. It was found that their property is comprised in old survey No.317/7 and 317/2 (re-survey No.306/2, 306/3 and 306/11). Courts below stated that there is discrepancy in the measurement of property claimed by appellants (between item No.7 of Ext.B1 and item No.6 of Ext.B2). Trial court found from evidence that respondent is in possession of the suit property which was found to be lying as a single plot. First appellate court held that appellants do not really have a specific contention that they have possession of any property covered by Ext.A1, commissioner has separately marked in Exts.C2 and C4 the respective plots in the possession of the contesting parties based on their documents of title and concurred with the finding of the trial court that the suit property is in the possession of the respondent. But since the commissioner pointed out that there is no specific boundary between the properties in the possession of the appellants and respondent first appellate court, rather, clarified that the decree for injunction is in relation to the blue shaded portion marked in Ext.C4 and lying comprised in re-survey Nos.295/6 and 306/1. First appellate court also directed that Ext.C4 will form part of the decree. RSA No.1030/2009 4 3. Contention raised by learned counsel for appellants before me is that though extent of property referred to in the plaint schedule is 25.5cents, measurement made by advocate commissioner would show that extent claimed by respondent is 28 cents. As I stated above, in the suit on hand an enquiry into title is not required as it is a simple suit for injunction based on possession. I must bear in mind that the 28 cents was found to be comprised in re-survey Nos.295/6 and 306/1 which corresponded to old survey No.317/7A referred to in Ext.A1. The finding of the trial court that respondent is in possession of the suit property has been accepted by first appellate court. Issue regarding possession is one of fact which the courts below answer in favour of respondent based on evidence. On going through judgment under challenge, what is discernible is that relief is granted based on possession of respondent over suit property. That finding required no interference in Second Appeal so far as the finding is not shown to be perverse or based on no evidence. As such, there is no merit in the Second Appeal. The Second Appeal is dismissed in limine. I.A.No.2305 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks