IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 SA.No. 582 of 1995() -------------------- OS.640/1991 of .MUNSIFF COURT, KOLLAM AS.22/1994 of DISTRICT COURT,KOLLAM .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1. VELAYUDHAN SOMAN ALUMOOTTIL THEKKATHIL THEKKUMKARA CHERY MAYYANAD VILLAGE. 2. P.OMANA ANEESHIA MANDIRAM WEST OF ARRIVAL MUKKU THAZHUTHALA CHERY ERAVIPURAM VILLAGE 3. VELAYUDHAN SUNDARAN REENA MANDIRAM AKKOLIL CHERY ERAVIPURAM VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR(QUILON) SRI.JAGADEESH LAKSHMAN RESPONDENT/ APPELLANT/PLAINTIFF --------------------------------------------------------- AMMUKUNJU ANANDAVALLY THANDAPARAMBIL CALLED AS THEKKE VEEDU, THEKKUMKARA CHERY MAYYANAD VILLAGE, KOLAM ADV. SRI.V.BHASKARAN PILLAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.7.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 1434 OF 1995 IN S.A. NO. 582 OF 1995 DISMISSED SD/- HARUN -UL-RASHID, JUDGE 10.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- S.A.No. 582of 1995 ---------------------------------------- Dated this the10th day of July, 2009 JUDGMENT When the case was taken up for final hearing on 9.7.2009 the counsel for the appellants argued his case. Neither the respondent nor her counsel was present. So the matter was adjourned to 10.7.2009 for hearing the respondent's counsel. Today also, nobody represented the respondent. Therefore the case was decided in the absence of the respondent and his counsel. The Second Appeal is directed against the judgment and decree in A.S. No. 22 of 1994 on the file of the District Court, Kollam which arises from the judgment and decree in O.S No. 640/1991 on the file of the Munsiff Court, Kollam. The suit was filed for permanent injunction. The trial court dismissed the suit. The lower appellate court reversed the findings of the trial court. Hence the second appeal. The defendants in the suit are the appellants herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 3. The property scheduled to the plaint is having an extent of 14 Cents which are portions of a larger extent of 28 Cents. The plaint schedule property belongs to the plaintiff by virtue of Ext.A1 partition deed The said 28 cents of property was partitioned into 4 equal portions S.A. No. 582 of 1995 -2- having an extent of 7 cents each in east west direction The 7 Cents of property on the southern most portion and 7 Cents of property on the southern side of the northern most plot of 7 cents are described as the plaint schedule property i.e 14 cents. The 7 cents claimed by the defendants lies in between the plots obtained by the plaintiff (item No.2). Item No. 3 in Ext. A1 is comprised of the aforesaid two plots having 7 cents each in east west direction which were allotted to the plaintiff. To say more accurately one plot of the plaintiff is lying on the southern most portion of the total extent of 28 cents of property and the other plot is on the southern portion of the northern most plot of 7 cents of the total extent of 28 cents. The plaintiff sought for injunction restraining the defendants from trespassing into any portion of the said two plots which are lying on either side of the defendants' property. 4. According to the defendants there were well demarcating boundaries in between the properties of the plaintiff and defendants. But the plaintiff had destroyed the said boundaries and attempts have been made to encroach upon the defendants' property. In such situation, the defendants filed application before the survey authorities to measure the properties and to locate and fix the boundaries. On the basis of the said application the survey authorities issued notice to the plaintiff and had initiated steps to fix the boundaries. At that time the plaintiff filed the suit and obstructed the abovesaid proceedings , by obtaining an order of S.A. No. 582 of 1995 -3- interim injunction. The defendants also contended that the plaintiff is trying to trespass into the defendants' property with the intention to grab a portion his property into her possession. 5. The trial court considered the question whether the plaintiff is entitled to the relief of injunction as prayed for. The plaintiff was examined as PW1 Exts. A1 to A3 were marked on her side. No oral or documentary evidence was adduced by the defendants. 6. The trial court elaborately discussed the oral and documentary evidence adduced by both parties. The trial court noted the admission of the plaintiff to the effect that there is a road on the western side of the plaint schedule property and certain portions of the properties have been taken for the construction of the said road . She further admitted as PW1 that the plaint schedule property comprised of two separate plots, having different boundaries and that she does not know the exact extent of property that have been taken for the construction of the road. It is also testified by PW1 that she is not able to say what is the extent of property in her possession and that the defendant's property is lying in between her two plots. Nobody has a case that the properties as per Ext.A1 are measured or demarcated and boundaries are fixed. PW1 admitted that the properties cannot be identified separately. PW1 categorically admitted that the present suit is filed by her due to the fear that the defendants will encroach upon the plaint schedule property. The trial court rightly held that the present suit is S.A. No. 582 of 1995 -4- filed when the defendants attempted to measure the properties and to demarcate the boundaries and that without locating the boundaries in between the properties of the plaintiff and defendant the relief of injunction sought for cannot be granted 7. Against the dismissal of the suit the plaintiff filed the appeal. The lower appellate court has taken a strange and different view without appreciating the admissions made by PW1 in the right perspective The lower appellate court held that in a suit for injunction it is not necessary that the party who seeks injunction has to takeout a commission for fixing the boundaries of the property. In the strict sense the said observation may be correct . But in a case where admittedly there is no boundaries separating the properties of the plaintiff and the defendants, it is the bounden duty of the plaintiff to take out a commission to measure the plaint schedule property and to demarcate the boundaries. The defendants' stand of not laying any claim over any portion of the plaint schedule property, does not mean that plaintiff is in possession of the entire extent scheduled to the plaint, especially, in the circumstances where plaintiff herself as PW1 admitted that she is not in possession of the plaint schedule property having an extent of 14 cents and a portion of the property was surrendered for the construction of the road and she has no idea about the boundaries of the plaint schedule property. 8. The trial court rightly held that the plaintiff is not entitled to the S.A. No. 582 of 1995 -5- injunction sought for unless and until her properties are identified The finding of the lower appellate court that the plaint schedule property is correctly described in the schedule to the plaint, is against the evidence tendered by the plaintiff herself as PW1. In the said circumstances I am of the view that the judgment and decree passed by the lower appellate court reversing the findings of the trial court is bad in law . At the same time the conclusion arrived at by the trial court is on the basis of evidence tendered by the plaintiff herself to the effect that she is unable to identify her own property and the boundaries, is justifiable. So the plaintiff is not entitled for the relief of injunction unless the plaint schedule property is measured and demarcated the boundaries with the assistance of a Commissioner deputed by a civil court. In such circumstances, the grant of injunction over a property which is not identified and against the evidence tendered by the plaintiff, is illegal and not sustainable in law. In the result,the judgment and decree passed by the lower appellate court are set aside The Second Appeal is allowed. The trial court's judgment and decree are restored to file. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- S.A. No. 582 of 1995 ---------------------------- JUDGMENT 10th July, 2009