IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 RSA.No. 594 of 2010(D) --------------------------------- (AS.NO.392/2005 OF III ADDL. DISTRICT COURT, TRIVANDRUM OS.NO.874/2003 OF I ADDL.MUNSIFF'S COURT.,TRIVANDRUM) .................... APPELLANTS/APPELLANTS – 2ND DEFENDANT AND LEGAL HEIRS OF THE DECEASED 1ST DEFENDANT: ------------------------------------------------------------------------------------------------------------- 1. PRASAD, S/O.VIKRAMAN, KANJURATHUMOODU VEEDU, PETTAH, THIRUVANANTHAPURAM. 2. V.SANAL KUMARI, ARUNDHATHY MANDIRAM, PETTAH, THIRUVANANTHAPURAM. 3. V.ANITHA, ARUNDHATHY MANDIRAM, PETTAH, THIRUVANANTHAPURAM. 4. G.GAYATHRI, D/O.VASANTHA, ARUNDHATHY MANDIRAM, PETTAH, THIRUVANANTHAPURAM. 5. YAMUNA, ARUNDHATHY MANDIRAM, PETTAH, THIRUVANANTHAPURAM. 6. JYOTHY, ARUNDHATHY MANDIRAM, PETTAH, THIRUVANANTHAPURAM. BY ADV. SRI.P.KESAVAN NAIR. RESPONDENTS/RESPONDENTS-PLAINTIFFS AND ADDITIONAL DEFENDANTS 3 AND 4: -------------------------------------------------------------------------------------------- 1. VIJAYAKUMAR, S/O.MADHUSOODHANAN, ALSA WOOD BINE-B4, THYCAUD P.O., THIRUVANANTHAPURAM. 2. SHYLA, W/O.VIJAYAKUMAR, ALSA WOOD BINE-B4, THYCAUD P.O., THIRUVANANTHAPURAM. R.S.A. NO. 594/2010-D: 3. RADHAKRISHNAN, S/O.PADMANABHAN, KANJIRATHUMOOD VEEDU, PETTAH, THIRUVANANTHAPURAM. 4. SARANGADHARAN, S/O.PADMANABHAN, ALSA WOOD BINE-B4, THYCAUD P.O., THIRUVANANTHAPURAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.594 of 2010-D ------------------------------------- Dated 27th July 2010 Judgment Faced with the concurrent findings against them, the defendants in OS No.874/03 have come up in appeal. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The plaintiffs claimed to be in absolute possession and enjoyment of the plaint schedule property, which they claim to have been obtained under Exts.A1 and A6. They were residing away from the property and the property was being looked after by their children. It is claimed that the property has well laid compound wall on all the four sides. According to the plaintiffs, taking advantage of the absence of the plaintiffs from the said property, the defendants used to pluck tender coconuts from the coconut trees in the property. In spite of several warnings, they continued the said practice. On 28.05.2003, RSA 594/10 2 the defendants demolished a portion of the compound wall on the western side of the property and tried to trespass into the property. Timely intervention by the plaintiffs prevented the trespass by the defendants. Apprehending further trespass into the property, the suit was laid. 3. Defendants 1 and 2 resisted the suit. According to them, the plaintiffs have no manner of right over the suit property. They say that the documents relied by the plaintiffs are fraudulent and they did not derive any right over the suit property. The suit property, according to them, is part of 31 cents of land jointly owned by the first defendant, her brothers and sisters. The plaintiffs are total strangers to the defendants. There was an earlier suit as OS No.290/1969 in respect of 5 cents of land and the said suit was dismissed. That suit was laid by the predecessor- in-interest of the plaintiffs. Pointing out that the plaintiffs have no manner of right over the suit property, they prayed for dismissal of the suit. RSA 594/10 3 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. The defendants did not examine any witness, but they produced Exts.B1 to B5. Exts.C1 and C1(a) were the Commissioner's report and plan and CW1 was examined as court witness. 5. The Trial Court, on an evaluation of the evidence on record, found that though there was a mis- description of the property in the plaint, the Commissioner has properly identified the property and there was not much dispute regarding the identity of the property. The Trial Court also found that the plaintiffs have title and possession over the property. It was also found that the defendants have no manner of right over the suit property. On the basis of these findings, the suit was decreed. 6. The matter was carried in appeal by the defendants as AS No.392/05 before the District Court, Thiruvananthapuram. The District Court, on an RSA 594/10 4 independent consideration of the evidence before it, came to the same conclusion as that of the Trial Court and dismissed the appeal. Hence the Second Appeal. 7. The learned counsel for the appellants pointed out before this Court that being a suit for injunction, the primary concern is one of possession and the identity of the property. It is incumbent on the part of the plaintiffs to show that they are in possession of the property exclusively and also that they are entitled to the property over which they laid their claim. Drawing attention of this Court to the description of the plaint schedule property in the plaint, it was pointed out that it does not tally with the description of property in the Commissioner's report and the property lies elsewhere. It is sufficient to non-suit the plaintiff. Unfortunately, the court below omitted to note this vital aspect which has resulted in a wrong decision, it is contended. 8. Though the above argument may look attractive at the first blush, it can be seen to be without any RSA 594/10 5 basis whatsoever on a close scrutiny of the evidence on record. The Commissioner's report and evidence was made available for perusal. It is true that the plaintiffs have sated that their property is situated on the northern side of Shanghumugham Road. As per the Commissioner's report, the property lies on the southern extremity on the eastern side of Anayara Road. This is taken advantage of by the learned counsel for the appellant to show that the property has not been properly identified. It is seen that the courts below have considered this aspect in considerable detail and found that it is not of any significance or consequence. The Commissioner pointed out that he had inspected the site three times and had identified the property. Both the defendants and the plaintiffs were present and they had no dispute regarding the identity of the property. 9. The lower Appellate Court has found that there is no road immediately adjacent on the southern side of the plaint schedule property. But the main road from which Petta-Anayara Road starts is on the southern side of RSA 594/10 6 the plaint schedule property a little away and that would reach Sanghumugham Road. This slight discrepancy as observed by the lower Appellate Court is not sufficient to non-suit the plaintiffs. The Commissioner has reported that the plaint schedule property has compound wall on all the four sides. The courts below were inclined to hold that the plaintiffs have proved their title and possession of the property. Accordingly, a decree was granted in their favour. The findings are essentially based on evidence on record. No substantial questions arise for consideration in this appeal. It is also not shown that the findings are either perverse or unwarranted by the evidence on record. The appeal has to fail. However, it is made clear that this being a suit for injunction, the issue regarding title will not be deemed to have been adjudicated in this proceeding. The parties will be free to agitate their claim regarding title in independent proceedings. RSA 594/10 7 The appeal is dismissed subject to the above observations. P.BHAVADASAN, JUDGE sta RSA 594/10 8