IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 RSA.No. 119 of 2011() --------------------- AS.95/2010 of ADDL. DISTRICT COURT, N. PARAVUR OS.512/2004 of MUNSIFF COURT,ALUVA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. KUNHAPPAN, AGED 52 YEARS, S/O.NARAYANAN, ELAVUNGAL HOUSE, CHENGAMANAD VILLAGE, ALWAYE TALUK. 2. JALAJA, W/O.KUNHAPPAN, AGED 47, ELAVUNGAL HOUSE, CHENGAMANAD VILLAGE, ALWAYE TALUK. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S)/RESDENT/ DEFENDANT: --------------- THE GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY THE SECRETARY, KADAVANTHARA, COCHIN-682 020. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R1 SRI.K.B.RAJESH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.119 OF 2011 --------------------------------------------- Dated 23rd March, 2011 JUDGMENT Plaintiffs in O.S.512/2004 on the file of Munsiff court, Aluva are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining the respondent from trespassing into the plaint schedule property. Plaint schedule property is shown as 4.125 cents (1.67 Ares) in re-survey No.1/15 of Town Block No.14 of Aluva west village, which was originally part of old survey No.317/7B. Appellant contended that they purchased the property under Ext.A1 assignment deed and their assignors got title of the property under Ext.A2 and RSA 119/11 2 since then they have been in absolute possession and enjoyment of the property and respondent is only having property to the west of the plaint schedule property which were divided into several plots and they have no right over any portion of the plaint schedule property and they are claiming right in the plaint schedule property and therefore, a decree is to be granted. Respondent resisted the suit contending that respondent acquired the property comprised in survey No.317/8 and the property purchased by the appellants is in survey No.317/7 and GCDA has absolute right over the property covered in Award No.56/1982 and the disputed property forms part of the said property in survey No.317/8 and appellants have made encroachment in the said property by constructing a building and they have no right to do so and therefore, suit is RSA 119/11 3 to be dismissed. 2. Learned Munsiff on the evidence found that the disputed property is in survey No.317/8 as demarcated by the Commissioner and not in 317/7 and the property claimed by the appellants is only in survey No.317/7 and not in 317/8 and therefore, appellants are not entitled to the decree sought for and dismissed the suit. Appellants challenged the judgment before Additional District Court, North Paravur in A.S.95/10. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and held that appellants have no right over the property in survey No.317/8, and as the disputed property is in survey No.317/8, appellants are not entitled to the decree sought for. Appeal was dismissed. It is challenged in the appeal. RSA 119/11 4 3. As notice before admission was issued, respondent appeared. Learned counsel appearing for the appellants and learned counsel appearing for the respondent were heard. 4. Argument of the learned counsel is that Ext.A1 title deed of the appellants establishes that they have obtained plaint schedule property from the assignors, who obtained the right under Ext.A2 assignment deed and though the Commissioner submitted Exts.C1, C2 and C3 reports and also submitted Exts.C1 (a), C2(a) and C3(a) plans, the plaint schedule property claimed by the appellants in Ext.A1 was not identified or demarcated. It was argued that the Commissioner did not identify the property, as there was insufficient data to identify the property in survey No.317/7B. Learned counsel appearing for the appellants pointed out that as a combined plan of 317/7A RSA 119/11 5 and survey No.317/7B is not available, appellants could not produce the same and when it is not disputed that appellants have constructed a building and are running Ayurveda shop by name Shanthigiri Ayurveda Sidha Vaidhyasala, they are, in any case, in settled possession of the property and even if the property belongs to the respondent, as it forms part of the property acquired, appellants cannot be dispossessed other than by due process of law as held by the Apex Court in Rame Gowda v. M.Varadappa (2004 (3) Law Weekly 143). Learned counsel argued that possession of the appellants is known to all including the respondent and therefore, without properly identifying the plaint schedule property and deciding, whether it forms part of the property obtained under Ext.A1, courts below should not have non suited the appellants. RSA 119/11 6 5. The suit is only one for injunction contending that appellants are in possession of the plaint schedule property having obtained it under Ext.A1. Respondent contended that the disputed property forms part of the property acquired, evidenced by Ext.B1(f) Award of 56/1982 and hence the property belongs absolutely to the respondent and property claimed by the appellants under Ext.A1 is not in survey No.317/8 but in 317/7. Commissioner has inspected the property and identified the properties with the assistance of the Taluk Surveyor thrice. Though the Commissioner specifically reported in his first report itself that the property in survey No.317/7 claimed by the appellants cannot be identified, appellants did not get a direction from the court to identify the property with their anterior title deeds, including Ext.A2. The RSA 119/11 7 Commissioner has identified the property in survey No.317/8, being the western plot and 317/7, being the eastern plot. Though it was contended that the Commissioner has not identified the property in survey No.317/7B there is no case that identification of the property in survey No.317/8 or 317/7 is not proper or the demarcating boundary between the two survey number is not correctly shown. If that be so, it is clear that the disputed property false in survey No.317/8. The property obtained by the appellants under Ext.A1 is in survey No. 317/7B. Survey No.317/7B could only be part of 317/7, as even according to the appellants the remaining properties is in survey No.317/7A. In spite of the reports submitted by the Commissioner showing that plaint schedule property is in survey No.317/7 and the disputed property claimed by the RSA 119/11 8 appellant is in survey No.317/8, plaint was not amended claiming amendment of the plaint to get injunction in respect of the disputed property namely, property in 317/8. Therefore, though intention of the appellants was to get a decree for injunction in respect of the disputed property in survey No.317/8, plaint schedule property remained as the property in survey No.317/7, which could necessarily be only to the east of the eastern boundary line of the property in survey No.317/8. In such circumstances, it was not necessary for the court to decide whether appellants are in settled possession of the disputed property in survey No.317/8 and therefore, respondents are entitled to a decree for injunction. In spite of the reports of the Commissioner that plaint schedule property is in survey No.317/8 and not 317/7, appellants did not seek amendment of the RSA 119/11 9 plaint and claimed a decree only in respect of the property in survey No.317/8. In such circumstances, I do not find any substantial question of law involved in the appeal. In view of the said finding, question whether appellants are entitled to any right in survey No.317/8, based on the settled possession is not decided in the suit and that question is left open to be decided in appropriate proceedings. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.