IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 SA.No. 225 of 2000(B) --------------------- AS.29/1992 of II ADDL. DISTRICT COURT, PALAKKAD OS.300/1987 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------------ PRABHAKARAN, S/O.CHAMI, NENMENI KIZHAKKETHARA AMSOM, KOLLENGODE CHITTUR TALUK BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM RESPONDENT/RESPONDENT NO.2/2ND DEFENDANT: --------------------------------------------------------------------------- VASU, S/O.VELU, THEKKINCHIRA, NENMENI KIZHAKKETHARA AMSOM, KOLLENGODE, CHITTUR TALUK (1ST DEFENDANT DIED. HIS LRS ARE DEFENDANTS 3 TO 11 CONCEDED THE PLAINT CLAIM. SO THEY WERE NOT IMPLEADED IN THE 1ST APPEAL. HENCE THEY ARE NOT ARRAYED AS PARTIES TO THIS SECOND APPEAL) ADV. SRI.O.V.MANIPRASAD FOR R1 SRI.P.K.VIJAYA MOHAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------------------------ SA No.225 of 2000 ------------------------------------------------------ Dated this the 31st day of October 2011 Judgment The plaintiff in OS No.300/87 before the Munsiff's Court, Chittur, who was non-suited by both the courts below, is the appellant. 2. The plaintiff claimed to be in possession and enjoyment of 1.53 acres of land, comprised in Survey No.476/2, which he claims to have obtained under Ext.A1 partition deed. According to him, out of the 1.53 acres of land, a portion was leased out to the first defendant by the plaintiff's father and another portion to the second defendant for a sum of Rs.10/-. The first defendant has put up a tea shop in the property and is conducting business there, whereas the second defendant is conducting a provision shop there. They have defaulted in payment of rent. Alleging that they are trying to trespass into the rest of the property in the possession of the SA 225/00 2 plaintiff, the suit was laid. 3. The defendants filed a joint written statement. According to them, the entire plaint schedule property did not belong to the plaintiff. They denied the allegation of lease set up by the plaintiff as regards defendants 1 and 2 and pointed out that they were in possession of 10 and 5 cents of properties respectively and the plaintiff has no manner of right over those items of properties. The story regarding lease etc. are all cooked up for the purpose of the case. On the basis of the above contentions, they prayed for a dismissal of the suit. 4. It appears that during the pendency of the suit, the first defendant died and his legal heirs have been brought on the party array as supplemental defendants 3 to 11. They filed a written statement, stating that they have no objection in granting a decree in favour of the plaintiff. 5. On the above pleadings, issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A5 from the side of the SA 225/00 3 plaintiff. The defendants had DW1 examined and Exts.B1 to B4 marked. CW1 Advocate commissioner was also examined and Exts.C1 and C2 commissioner's report and plan were marked. 6. On a consideration of the materials before it, the court below found that the plaintiff has not been able to prove his possession over the entire suit property and dismissed the suit. 7. The plaintiff carried the matter in appeal as AS No.29/92 before the District Court, Palakkad. The lower appellate court found that the trial court was right in its conclusion that there was no proper identification of the property. The story of lease not not been proved. It is not found that the purchase certificate has been obtained by the first defendant. Further, the property in the possession of the plaintiff exceeded the extent made mention of in the plaint and therefore, without proper identification of the property, no decree should have been granted to the plaintiff. Accordingly, the appeal was dismissed. Hence the SA 225/00 4 second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Is it proper to dismiss a suit for a permanent injunction even though the defendant conceals the plaintiff's case and consents to suffer a decree ? 2.Can a suit for injunction be dismissed for the sole reason that the plaint description is not correct when the correct description is brought out in evidence. Is it not necessary to grant reliefs on the basis of the facts proved? 3.Is not the presumption that the title holder is admittedly in possession of the major portion of the property is in possession of the whole property including the small plot in dispute ? 4. Is a purchase certificate obtained behind the back of the real owner binding on him ? 9. The learned counsel for the appellant pointed out that the courts below are not justified in dismissing the SA 225/00 5 suit. Even assuming that there was some ambiguity regarding the claim, there was clear indication to show that the property in the possession of plaintiff lies separated from the properties of the defendants by means of a chal in between. There is no justification in not granting a decree in relation to the property situate on the eastern side of the chal. Merely because the property has not been identified by measurements through the commissioner, it does not follow that the suit has to be dismissed. According to the learned counsel, there is no claim for the defendant that they own property on the eastern side of the chal and the chal has been taken as the dividing boundary between the properties of the parties and therefore, judgment and decree of the courts below are unsustainable in law. 10. The learned counsel for the respondents, on the other hand, pointed out that both the courts below have considered all the aspects and have come to the conclusion that the plaintiff is not entitled to a decree. There was no attempt from the side of the plaintiff to get SA 225/00 6 the property identified, especially his property and the property owned and possessed by the defendants. The learned counsel also drew attention of this court to the fact that the courts below have found that the lease set up by the plaintiff is not proved and is false. The courts below have also found that the second defendant has got a purchase certificate for the property which takes in much more extent of property that is claimed by the plaintiff and therefore, the plaintiff has to fail. It was these facts which persuaded the courts below to non-suit the plaintiff. It is finally contended that the findings of the courts below are based on appreciation of evidence and no substantial questions of law arise for consideration in the second appeal and it is only to be dismissed. 11. After having heard the learned counsel on both sides and gone through the records, there appears to be considerable force in the submissions made by the learned counsel for the respondents. The plaintiff based his claim over plaint B schedule property on Ext.A1 partition SA 225/00 7 deed. He claimed that the property had an extent of 1.53 acres. He explains the possession of defendants on the basis of lease which he claimed they obtained from his father. But, there is absolutely no evidence regarding such entrustment or payment of rent, as claimed by the plaintiff. 12. It is seen that the legal heirs of the first defendant withdrew their contentions and the second defendant chose to contest the suit. He was able to show that he has obtained purchase certificate in respect of 5 cents of property which going by the measurements exceeded the extent show in the plaint. It is surprising to note that there was no attempt either from the side of the plaintiff or the defendants to get their respective properties measured and identified by the commissioner. All that the commissioner has done is to make a rough sketch which is totally insufficient to ascertain the extent of property in the possession of each of the parties. At least at the appellate stage, one would have expected the plaintiff to move the court to have a proper plan and sketch. But, for reasons SA 225/00 8 best known to the plaintiff, he did not do so. The courts below have found that the second defendant has obtained a purchase certificate which has been granted after following the due procedure. It is interesting to note that the intermediaries with the plaintiff and the defendants are one and the same person and he is shown as respondent in the purchase application filed by the second defendant under which he obtained the purchase certificate. 13. One has to remember that the suit is one for injunction and the burden is on the plaintiff to show that he was in exclusive possession of the property over which he lays claim. Both the courts below have found that the plaintiff has miserably failed to establish his possession over the properties and that the claim of lease set up by the plaintiff is incorrect and stands disproved. The courts below were inclined to accept the version of the second defendant because he had obtained purchase certificate in respect of the property claimed by him and it is conclusive evidence of the right of the second defendant over the said SA 225/00 9 property. These aspects had persuaded the courts below to come to a conclusion that the plaintiff is not entitled to a decree as prayed for by him. As rightly pointed out by the learned counsel for the respondents, the findings of the courts below are based on independent appreciation of evidence in the case and are pure questions of fact. It is not show that the findings are either perverse or unwarranted by the evidence on record. The result is that the second appeal is without any merits as no substantial questions of law arise for consideration. Accordingly, the second appeal is dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 225/00 10