IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 SA.No. 531 of 2000(E) ----------------------------- AS.5/1992 of II ADDL. DISTRICT COURT, PALAKKAD OS.385/1985 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/LEGAL HEIRS OF RESPONDENT/LEGAL HEIRS OF PLAINTIFF: ------------------------------------------------------------------------------------------------------------ 1. MARIYAMMA, W/O. LATE ANTHONYSWAMY, CHANDRAPURAM, PUDUSSERY AMSOM. WALAYAR PO, PALAKKAD DISTRICT 2. LURUTHU MARY, D/O. LATE ANTHONYSWAMY NALLOOR, VADAKARAPATHY VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT 3. CHINNAPPARAJ, S/O. LATE ANTHONYSWAMY CHANDRAPURAM, PUDUSSERY AMSOM WALAYAR PO, PALAKKAD DISTRICT 4. BHAGYA MARY, D/O. LATE ANTHONYSWAMY CHANDRAPURAM, PUDUSSERY AMSOM WALAYAR PO, PALAKKAD DISTRICT 5. ANTHONY CHRISTY, S/O. LATE ANTHONYSWAMY KEERAMPARA, ERUTHEMPATHY VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT 6. VELANKANNI, D/O. LATE ANTHONYSWAMY CHANDRAPURAM, PUDUSSERY AMSOM WALAYAR PO, PALAKKAD DISTRICT 7. CHARLY, S/O. LATE ANTHONYSWAMY CHANDRAPURAM, PUDUSSERY AMSOM WALAYAR PO, PALAKKAD DISTRICT 8. STELLA, D/O. MARIYAMMA & W/O. CHARLY CHANDRAPURAM, PUDUSSERY AMSOM WALAYAR PO, PALAKKAD DISTRICT 9. A. AROGYASWAMY, S/O. LATE MARIYAMMA MOOPLIKADAVIL, ATTAPPADI, AGALI PO, MANNARGHAT TALUK PALAKKAD DISTRICT 10. JAMES, S/O. LATE MARIYAMMA MOOPLIKADAVIL, ATTAPPADI, AGALI PO, MANNARGHAT TALUK PALAKKAD DISTRICT 11. A. THRESSIA, D/O. LATE MARIYAMMA MOOPLIKADAVIL, ATTAPPADI, AGALI PO, MANNARGHAT TALUK PALAKKAD DISTRICT 12. SEBASTIAN, S/O. LATE MARIYAMMA MOOPLIKADAVIL, ATTAPPADI, AGALI PO, MANNARGHAT TALUK PALAKKAD DISTRICT BY ADV. SRI.G.SREEKUMAR(CHELUR) RESPONDENTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------------------- 1. CHINNA KOUNDER, S/O. KRISHNASWAMY KOUNDER, ADAPPADIKARAN KALAM, NEAR 14TH MILE STONE PUDUSSERY AMSOM, WALAYAR PO PALAKKAD DISTRICT 2. APPUKUTTY @ KRISHNASWAMY KOUNDER S/O. CHINNAPPA KOUNDER ADAPPADIKARAN KALAM, NEAR 14TH MILE STONE PUDUSSERY AMSOM, WALAYAR PO PALAKKAD DISTRICT 3. CHINNARAJ, S/O. CHINNAPPA KOUNDER ADAPPADIKARAN KALAM, NEAR 14TH MILE STONE PUDUSSERY AMSOM, WALAYAR PO PALAKKAD DISTRICT ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1TO 3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smt P.BHAVADASAN, J. ----------------------------- S.A. No.531 of 2000-E --------------------------------- Dated this the 10th day of June 2011 J U D G M E N T The plaintiffs in O.S.No.385 of 1985 before the Munsiff's Court, Palakkad who were non-suited by the lower appellate court are the appellants. 2. Plaintiffs laid claim to the suit property by virtue of Ext.A1 Deed dated 10.4.1957. According to them, ever since, they have been in absolute possession and enjoyment of the suit property. On the eastern and southern side of the property, there are rocky areas and on the southern and eastern side of this rocky area, there are other land in the possession of the plaintiffs. Alleging that defendants are attempting to trespass into the plaint schedule property, the suit was laid. 3. The defendants resisted the suit. They disputed the description of the plaint schedule property and right of S.A. No.531 of 2000-E -: 2 :- the plaintiffs to the suit property. According to them, in between the properties of plaintiffs and the defendants, there is a cart-track and plaintiffs have no right over the property lying on the south of the said cart-track. According to them, they obtained the then property as per Ext.B1 deed dated 23.3.1970. The intention of the plaintiffs is to grab a portion of the properties of the defendants. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. The evidence consists of the testimony of PWs.1 to 3 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had DWs.1 and 2 examined and Exts.B1 to B8 marked. Exts.C1 and C2 were the Commissioner's report and plan. 5. The trial court was greatly impressed by the evidence adduced by the plaintiffs and held that they had succeeded in establishing the right over the plaint schedule S.A. No.531 of 2000-E -: 3 :- property and that it belongs to them. They were found to be in possession of the same and accordingly granted a decree in their favour. 6. The aggrieved defendants carried the matter in appeal as A.S.No.5 of 1992 before the District Court, Palakkad. The lower appellate court on evaluation of the materials before it, chose to differ from the view taken by the trial court and came to the conclusion that the plaintiffs have not successfully established their exclusive possession and title over the suit property and therefore, allowed the appeal and dismissed the suit. 7. Notice is seen issued on the following questions of law raised in the second appeal :- “a) Whether the appellate court has correctly identified the suit property? Whether the appellate court has correctly applied the principles relating to identification of property? b) Whether in view of the fact that the description of the property conveyed to the first defendant under Exhibit-B1 does not tally with the description of the suit property or any part thereof, the appellants are S.A. No.531 of 2000-E -: 4 :- entitled to a decree for injunction?” 8. The learned counsel for the appellants contended that the lower appellate court was not justified in reversing the judgment and decree of the trial court. The trial court based its conclusions on the commissioner's report as well as the evidence adduced by the plaintiffs which would convincingly show that plaint schedule property was in the possession of the plaintiffs. The definite case of the defendants is that the boundaries and the extent of the suit properties as shown in the plaint schedule are not correct. The trial court rightly found, according to the learned counsel, the plaintiffs had discharged the burden and that defendants have miserably failed to establish their case. Going by the description in Ext.A1, according to the learned counsel, it will be clear that the disputed property is in the possession of the plaintiffs. Reasons given by the lower appellate court to take a different view, according to the learned counsel, are not sustainable. Accordingly, it is S.A. No.531 of 2000-E -: 5 :- contended that the impugned judgment and decree be set aside and that of the trial court are restored. 9. The learned counsel for the respondents on the other hand contended that lower appellate court has meticulously analysed the evidence and has found that the plaintiffs have not proved possession and title over the suit properties. The court has taken note of the boundaries of the properties covered by the document, the claim of the plaintiff in the plaint and found the evidence of plaintiff suffers from inconsistencies and lacking in corroboration. The learned counsel went on to point out that lower appellate court has correctly noticed the description of the suit property in Ext.A1 and has found that the cart-track forms the boundary on the southern and southeastern side of the suit property. According to the learned counsel, the findings of the lower appellate court that the description of the suit property is not correct and is not properly identified is justified. It was also contended that the conclusion S.A. No.531 of 2000-E -: 6 :- arrived at are on the basis of evidence on record and no questions of law arises for consideration in the second appeal and it is only to be dismissed. 10. Plaintiffs claimed right over the suit property on the basis of Ext.A1 deed dated 10.4.1957. It shows that the plaintiffs had purchased 6.97 acres in four survey numbers. 75 cents comprised in Survey No.1401/6, 3.35 acres in Survey No.1401/7, 1.92 acres in Survey No.1405/3 and 95 cents in Survey No.1405/4. The dispute in this case relates to 63 cents of property situated on the southern side of the entire property covered by Ext.A1 and is comprised in Survey Nos.1405/3 and 1405/4. The defendants raised claim to the same property by virtue of Ext.B1 deed dated 23.3.1970. According to them, the entire property in the said survey No. is not in the possession of the plaintiffs. It is also contended that 8 cents of property in Survey No.1405/3 and 55 cents of property in Survey No.1405/4 totalling to 63 cents belong to them. As already noticed S.A. No.531 of 2000-E -: 7 :- that the findings of the trial court was in favour of the plaintiffs while the lower appellate court found in favour of defendants.. 11. The main contention is that the Commissioner's report is sufficient to show that the plaintiff's case is true and genuine and the claim put forward by the defendants cannot be accepted. 12. For proper understanding of the dispute, it is necessary to refer commissioner's report. Ext.C2 is the plan and Ext.C1 is the report. In the report, the Commissioner says that he identified the entire plaint schedule property. He also says that the defendants raised claim over 63 cents of property of which 8 cents comprised in Survey Nos.1405/3 and 55 cents in Survey No.1405/4. Then the Commissioner says that this 63 cents over which right is sought to be established by the defendants is covered by plaintiff's document also. Nothing more is seen stated in the Commissioner's report. This court is given to S.A. No.531 of 2000-E -: 8 :- understand that no objections have been filed against the Commissioner's report. The trial court was persuaded to go in favour of the plaintiff on the basis of Exts.A1, B1 deeds. A reading of the trial court judgment, it would appear that, the burden has been cast on the defendants to prove their title and possession over the disputed property. The approach of the trial court cannot be justified. The burden is on the plaintiffs to establish that they are in exclusive possession of the suit property. The weakness of the defence case can be of no help to plaintiffs. However, the learned counsel for appellant is justified in making the submission that determination of title was unnecessary and uncalled for since the suit was one for injunction only. The lower appellate court has considered Ext.A1 and found evidence going by the description is difficult to hold that disputed portion is covered by Ext.A1. 13. It was also noticed that on a reading of Ext.B1 document of the defendants, it is difficult to say that their S.A. No.531 of 2000-E -: 9 :- property is included in the southern extremity and comprised in Survey Nos.1405/3 and 1405/4. Moreover, the lie and location of the cart-track would also create doubt regarding the claim made by the plaintiffs. 14. Moreover, the plaintiffs have got a definite case that the properties of the plaintiffs and the defendants are separated by ridges and there is cultivation in the suit property. If true, these aspects should have been brought to the notice of the Commissioner who inspected the property. For reasons best known to the plaintiffs those aspects were not sought to be got recorded in the report. Further, going by the boundaries of Ext.A1, it is difficult to presently hold that a portion of the property covered by Ext.A1 lies on the southern side of the cart-track. 15. Any how, as rightly pointed out that the question of title was irrelevant and as the suit was for injunction only, one needs to consider only the factum of possession. Even though, the plaintiffs have claimed that they have S.A. No.531 of 2000-E -: 10 :- made valuable improvements in the property there is no evidence in that regard. It was under these circumstance, the lower appellate court take a view against the plaintiffs. True, the lower appellate court ought not to have considered the question of title over the suit property. To that extent, the learned counsel for the appellant is justified in his submission that the lower appellate court has erred in law. However, regarding the other findings, the learned counsel was unsuccessful in assailing the findings of the lower appellate court. Result is that, this second appeal is without any merits and it is accordingly dismissed. However, it is made clear that the question of title of the plaintiffs with regard to the plaint schedule property is left open to be decided in appropriate proceedings. There will be no order as to costs. P.BHAVADASAN, JUDGE. Jvt