IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 SA.No. 337 of 1999(F) --------------------- AS.789/1994 of SUB COURT,NEYYATTINKARA OS.312/1987 of II ADDL.MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF 1 & 2: ----------------------------------------------------------------- 1. ATHANAS, SON OF SILUVA PICHA, SUNIL COTTAGE, PANIKKATHIRIKKAM PURAYIDOM, KOCHUPILLAI, KARICHAL DESOM, KARUMKULAM VILLAGE (DIED) 2. MARGARETTU MAYAMMAL, FERNANDEZ OF DO. DO. ADDL.A3. SUNIL KUMAR, S/O.ATHANAS, AGED 40, SUNIL COTTAGE, PANIKKARIKHAM PURAYIDOM, KOCHUPALLY, KARICHAL DESOM, KARUNKULAM VILLAGE. “ A4. SUSIL KUMAR S/O.ATHANAS, AGED 38, DO. DO. “ A5. SUNITHA, D/O. ATHANAS, AGED 36, DO. DO. “ A6. SUMA, D/O.ATHANAS, AGED DO. DO. THE 2ND APPELLANT IS RECORDED AS ONE OF THE LRS OF THE DECEASED 1ST APPELLANT AND THE OTHER LRS ARE IMPLEADED AS ADDL. APPELLANTS 3 TO 6 AS PER ORDER DATED 15.3.11 IN IA.699/11. BY ADVS. SRI.L.MOHANAN SRI.D.SAJEEV RESPONDENTS/APPELLANTS/DEFENDANTS 1 & 2: --------------------------------------------------------------------------- 1. MICHAYEL THOMAS, PANIKKATHIRIVILAKAM PURAYIDOM KOCHUPALLY, KARICHAL DESOM, KARUMKULAM VILLAGE (DIED) 2. REGEENAL THOMAS, OF DO. DO. LR OF R1 SA.No. 337 of 1999(F) -------------------------------- ADDL. R3 TO R9 IMPLEADED ADDL. R3. T.VARGHESE, PEERUPPILLAVILAKOM PURAYIDOM, PULLUVILA, PULLUVILA P.O. “ R4. ROSELI.T., KIZHAVI VILAKOM PURAYIDM, KOCHUPALLY, PULLUVILA, PULLUVILA P.O. “ R5. T.ANTONY, IRAYIMMANTHURA PURAYIDOM, PULLUVILA, PULLUVILA P.O. “ R6. MUTHAYYAN T., PARIKKATHI VILAKOM PURAYIDOM, KOCHUPALLY, PULLUVILA, PULLUVILA P.O. “ R7. PATHROSE.T., PALLI KETTIYA PURAYIDOM, KOCHUPALLY, PULLUVILA, PULLUVILA P.O. “ R8. DHARMMAYYAN T., PANIKKATHI VILAKOM PURAYIDOM, KOCHUPALLY, PULLUVILA, PULLUVILA P.O. “ R9. KOCHU THRESSI, PALLIKETTIYA PURAYIDOM, KOCHUPALLY, PULLUVILA, PULLUVILA P.O. RESPONDENTS 2 TO 9 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AND RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE ADDITIONAL RESPONDENTS VIDE ORDER DATED 6.7.06 IN IA 2257/05. R1 & R2 BY ADVS. SRI.P.A.AHAMMED SRI.M.SREEKUMAR SRI.A.AHZAR ADDL. R3 TO 9 BY SRI.P.A.AHAMMED THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 337 of 1999(F) ----------------------------- CMP. NO.933/1999 IN SA NO.787/2000 DISMISSED 01.06.2011 Sd/- P.BHAVADASAN , JUDGE / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ---------------------------- S.A.No. 337 of 1999 --------------------------------- Dated this the 1st day of June, 2011 JUDGMENT The plaintiffs in O.S.No.312 of 1987 before the Munsiff's Court, Neyyattinkaara who secured a decree from trial court, but which was modified by the lower appellate court, are the appellants. 2. The suit was one for prohibitory injunction. The plaintiffs claimed possession over the plaint schedule property as an extent of 18½ cents of land by virtue of Ext.A1 dated 13.09.1976. They had alleged that the defendants had tried to trespass into the plaint B schedule property and hence the suit was filed. 3. The first defendant resisted the suit by pointing out that the plaint schedule descriptions are not correct. The plaintiffs does not have the extent of property described in the plaint and they had no possession over the entire plaint schedule property. It is specifically contended that the property comprised in re- survey No.8/30 is purampoke property. The first defendant had S.A.No. 337 of 1999 2 obtained pattayam in respect of that portion of the property. According to the first defendant, plaintiffs have no manner of right to any portion of the properties comprised in survey No. 8/30. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. 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. Exts.B1 and B2(a) are marked from the side of the defendants. Exts.C1 and C1(a) are the commissioner's report and plan. The trial court granted a decree in favour of the plaintiffs. The defendants took up the matter in appeal as A.S No.789/1994 before the Sub Court, Neyyattinkara and pointed out that the findings of the trial court are contrary and inconsistent, the decree could not have been granted as has been done by the trial court. 5. The lower appellate court granted a relief of injunction against the defendants in respect of plot E F G H I J K L M N O P Q marked in Ext.C1(a) plan modifying the trial court decree. S.A.No. 337 of 1999 3 Accordingly, the appeal modified and was partly allowed. 6. Notice is seen issued on the following substantial questions of law: 1. Is it not illegal to decide the title of the plaintiff in a suit for injunction especially when there was no issue to that effect. 2. Is it not illegal to enter a finding as an interim order which would materially affect the decision of the case. 3. Has not the courts below committed illegality in not complying with the mandate of the High Court. 4. Has not the courts below committed illegality in accepting the report and plan which was prepared without any basis. 7. The learned counsel appearing for the appellants pointed out that the lower appellate court has omitted to note Ext.A1 which would show that the property comprised in Survey No.8/30 is also in the possession of the plaintiffs and also contended that the plaintiffs had adduced evidence to show that they are in possession of the plaint schedule property. 8. One may remember that the plaint schedule property has an extent of 18.5 cents comprised in survey No. 208/11C. The property comprised in survey No.208/11C has been plotted S.A.No. 337 of 1999 4 in Exhibit C1(a) as plot E F G H I J K L M N O P Q. The total extent of the plot is 7.767 cents Ext.B1 which is the patta relied on by the first defendant shows that he had obtained patta with respect to only 0.9859 square metres in survey No.8/30. Ext.A2, which is a certificate issued by the Special Tahsildar, shows that the plaintiff had property in survey No.8/30 also. The lower appellate court has referred to the evidence of PW3 and the first plaintiff who had admitted before the lower court that he had no right over the property comprised in survey No.8/30. It is also to be noticed that the case of the plaintiffs is that the property with respect to which they lay claim is registered holding. In Ext.A1 also the property covered by that document has been described as “Pandaravakapattam”. The evidence shows that the property comprised in survey No.8/30 is a puramboke land. Moreover, the property comprised in survey No.8/3o is situated in between plot A B C D and E F G H I J K L M N O P and it is comprised in survey No.208/11C. 9. The above facts are sufficient to create a serious doubt regarding the claim put forward by the plaintiff in relation to the S.A.No. 337 of 1999 5 property shown as A B C D plot in Survey No.8/30. The lower appellate court has also noticed the relief was given by trial court to the plaintiff in respect of property comprised in Survey No.8/33, a claim which the plaintiff never had. On appreciation of the evidence adduced in the case, the lower appellate court felt that the relief for the plaintiffs was to be confined to E F G H I J K L M N O P Q plots and that he has not proved possession in respect of ABCD plot. 10. Being a suit for injunction, the court needs to consider only the actual possession of the property. The lower appellate court has observed that the plaintiffs had no property other than plot shown as E F G H I J K L M N O P Q. The lower appellate court has given cogent and convincing reasons as to why a different view had to be taken and a modified decree had to be passed. The findings are based on evidence on record and is not shown to be either perverse or unwarranted by the evidence on record. No grounds are made out to interfere with the judgment and decree of the lower appellate court. Therefore, the impugned S.A.No. 337 of 1999 6 decree stands reserving the liberty of the plaintiffs to agitate their claim on the basis of title, if they are so advised. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln