IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 RSA.No. 1032 of 2007() ---------------------- AS.14/2002 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.2158/1996 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- VIJAYAMMA, D/O CHELLAMMA, RESIDING AT KINATTADIVEEDU, MONVILA, KULATHOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: RESPONDENTS/DEFENDANTS -------------------------------------------------- 1. LALITHAKUMARI, D/O KAMALAMMA, RESIDING AT KAMALABHAVAN, MONVILA, KULATHOOR P.O., THIRUVANANTHAPURAM. 2. VIJAYAMOHAN, RESIDING AT KAMALA BHAVAN, MONVILA, KULATHOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1032 OF 2007 =========================== Dated this the 11th day of February, 2008 JUDGMENT Plaintiff in O.S.2158/1996 on the file of Additional Munsiff Court, Thiruvananthapuram is the appellant. Defendants are the respondents. Appellant instituted the suit claiming a decree for permanent prohibitory injunction contending that respondents are attempting to trespass into the plaint schedule property claiming a way and appellant is in exclusive possession and enjoyment of the plaint schedule property obtained under Ext.A1 lease deed dated 11.2.1994 and respondents have no manner of right or possession over the same. Respondents resisted the suit contending that there is a pathway which is used by respondents and other residents of the locality for more than 60 years and defendants did not attempt to encroach upon any portion of the plaint schedule property except using the existing R.S.A.1032/2007 2 pathway which lies along the eastern side of the plaint schedule property. It was also contended that they have lodged a complaint before Revenue Divisional Officer and suppressing it appellant instituted the suit and appellant's son had filed O.S.1834/1996 which was dismissed. 2. Learned Munsiff on the evidence of PW1 and DW1 and Exts.A1 and B1 to B4 found that when appellant was examined as PW1 she admitted that the property which lies to the east of the plaint schedule property belongs to the Church and there is a compound wall for the western boundary of the Church compound. It was also admitted by PW1 that on the east of the plaint schedule property, there is a fence. Relying on this evidence, learned Munsiff found that it establishes that a strip of land, which lies to the east of the plaint schedule property, was excluded from the plaint schedule property by constructing a fence and it is the way claimed by respondents and suit was filed suppressing that fact and appellant is not entitled R.S.A.1032/2007 3 to the decree sought for. Appellant challenged the judgment before District Court,Thiruvananthapuram in A.S.14/2002. Before the first appellate court, appellant filed an application for appointment of a Commission contending that there is no fence on the east of the plaint schedule property and the dismissal of the suit on that ground is not sustainable. Learned Additional District Judge on reappreciation of evidence found that appellant is not entitled to take out a commission, in the light of the evidence, when the suit is for injunction simpliciter and evidence show that there is a way through the eastern side of the plaint schedule property. It was found that appellant is not entitled to the decree for injunction. Appeal was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that appellant is an old rustic witness and without R.S.A.1032/2007 4 knowing the implications, in cross examination by mistake PW1 deposed that there is a fence on the eastern side of the plaint schedule property, when in fact there was no such fence. It was argued that first appellate court should not have disallowed the application for appointment of a Commission and if a Commission was appointed it would have established that there is no fence on the eastern side and in such circumstance, dismissal of the appeal was not justified. Learned counsel also argued that an opportunity should be granted to the appellant to etablish that there is no fence on the eastern side of the plaint schedule property, leaving a strip of land to the east, as found by the courts below and in such circumstance, appeal is to be admitted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. The suit was filed seeking a decree for permanent prohibitory injunction contending that R.S.A.1032/2007 5 respondents are attempting to trespass into the plaint schedule property claiming a way. The specific case raised by respondents was that there exists a way through the eastern portion of the plaint schedule property which is being used by residents of the locality including respondents for more than 60 years. The right of way claimed by respondents as such was not decided in the suit. Being a suit for injunction, the question is about the possession of the property. If the plaintiff is not in possession of the entire plaint schedule property and a portion was left out which is being used by respondents and the public, appellant is not entitled to a decree for permanent prohibitory injunction. That exactly is the case herein. When appellant was examined before the trial court she unambiguously admitted that there is a compound wall to the western boundary of the Church compound, which lies to the east of the plaint schedule property. It was also admitted by appellant that on the eastern side of R.S.A.1032/2007 6 the property in her possession, a fence was constructed. As rightly found by courts below if there is a compound wall which serves as the western boundary of the eastern compound belonging to the Church, there is no necessity to construct a fence there. The western compound wall of the eastern Church would be the eastern boundary of the plaint schedule property. Still if another fence is constructed to the east of the plaint schedule property it could only to leave a portion of the plaint schedule property to the east of the property and west of the eastern Church compound. In such circumstance, the finding of the courts below that a strip of land is left out while constructing a fence to the east of the plaint schedule property is correct. It could only be for using that portion as a way. If that be so, when appellant suppressing the existence of the way instituted the suit for injunction, she is not entitled to the decree sought for. Though learned counsel argued that appointment of a Commission R.S.A.1032/2007 7 sought for before the first appellate court should have established that there is no fence on the eastern side of the property and the admission of PW1 is a mistake, it is possible that appellant could stage manage things by removing the fence on the east and apply for a commission. Moreover without satisfying the test provided under Rule 27 of Order XL1 of Code of Civil Procedure appellant cannot take out a commission at the first appeal stage. It was not satisfied. The evidence of PW1 in cross examination establish that there exists a fence on the east of the plaint schedule property. If it was a mistake, appellant could have clarified it in reexamination. That was not clarified. Even if it is taken that because of rustic illiterate witness, PW1 wrongly deposed about existence of a fence, appellant could have applied for a Commission before the trial court itself. In any event that lacuna cannot be filled up by applying for a commission when chance for stage managing the affairs cannot be ruled out. In such R.S.A.1032/2007 8 circumstance, appeal is dismissed. The dismissal of the appeal will not disentitle the appellant to seek a decree for declaration of her title to the property. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006