IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 SA.No. 4 of 1997() ------------------------- AS.1/1994 of SUB COURT, QUILANDY OS.19/1991 of MUNSIFF COURT, PAYYOLI .................... APPELLANT(S): RESPONDENTS/DEFENDANTS ------------------------ 1. THALAMANNU NADAPARAMBIL NARAYANI, W/O. GOPALAN, RESIDING AT KUYYINANAPOYIL MEETHAL, KARUMANCHERI AMSOM, DESOM. 2. THALAMANNU KOVUMMAL GOPALAN, S/O. VASAN, RESIDING AT DO. VADAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.K.A.MAYA RESPONDENT(S): APPELLANT/ PLAINTIFF ------------------------ ODIYIL KAMALA, PALAYADOM AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE, DISTRICT. ADV. SRI.PARTHASARATHY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- S.A No. 4 of 1997 -------------------------- Dated this the 6th July, 2010 J U D G M E N T The defendant who suffered a decree at the hands of the first appellate court is the appellant herein. The parties and facts hereinafter referred to as are available before the trial court. 2. The plaintiff in the suit obtained 4 cents of property as per gift deed dated 11.2.1982 which is shown item No.1. According to the plaintiff, he had taken item No.2 as per lease granted by the panchayat and she had made improvements in the said property.. The property was on the southern boundary of Item No.1. She complained that defendants tried to tresspass into plaint item No.1 and commit waste in the property. Therefore she filed the suit for necessary reliefs. 3. The defendants resisted the suit. They pointed out that the description in plaint item is insufficient to identify the property. There is no puramboke land on the southern boundary of plaint item No.1 as alleged. The S.A No. 4 of 1997 2 plaintiff was never in possession of property described as Item No.2.. According to the 1st defendant, she had planted coconut trees on the western boundary of the property which she got as per Ext.A1 gift deed. She also planted coconut saplling on the north eastern corner of item No.1. The 1st defendant had taken 4 cents of puramboke land on lease from Panchayat from 1969 onwards and that they had effected improvements in the property. Second defendant has taken on lease 15 cents of property in the year 1981. They have been paying licence fee to the panchayat for the properties taken on lease. Pointing out that the plaintiff has no manner of right over plaint item 2, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts. A1 to A11 were marked from the side of the plaintiff. Defendant was examined as DW1 and Exts. B1 to B11 were marked. Exts. C1 to C4 are the commission reports and plan. S.A No. 4 of 1997 3 5. The lower court on appreciation of evidence found that plaint item 2 could not be identified and therefore it cannot be held that plaintiff has got possession over the same. Measurements given in Ext.A4 and Exts. C1 to C4 commission reports and plan differed considerably. It is also found that the defendants are found to be in possession of the disputed property from 1969 onwards and therefore the concerned panchayat could not have granted a subsequent lease in the year 1982-83 in favour of the plaintiff as alleged. Finding that there was no proper identification, the suit was dismissed. 6. Plaintiff carried the matter in Appeal as A.S No.1/1994 before the Sub Court, Quilandy. The appellate court differed from the views taken by the trial court and held in favour of the plaintiff. 7. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in interfering with the judgment and decree of the trial court . The trial court held that plaint schedule had been clearly identified and there was no reason to take a S.A No. 4 of 1997 4 different view. Learned counsel also pointed out that the lower appellate court proceeds on the basis that when there is a puramboke land adjacent to one's property normally it will be in his possession. Holding so, the decree was granted in favour of the plaintiff. 8. The trial court had found that going by the descriptions in the plaint, property could not be identified. It is also found that the measurements shown in Ext.A4 plan do not tally with the measurements taken by the Commissioner. In fact there is no comparison at all. The appellate court on these matters does not take a different view. However, the appellate court felt that normally when puramboke land lies adjacent to a person's property, if at all there is a lease it can only be in favour of that person. 9. Items C1 and C2 plots shown in the plan claimed by the defendants to be in their possession. It is also found by the trial court that the boundaries do not tally with the identification made by the Commissioner. 10. In the above context, it is to be noticed that for the reasons best known to the plaintiff, she did not make S.A No. 4 of 1997 5 the Panchayat as party to to the suit. The plans produced by the respective parties do not tally with the commissioner's report and plan. At least the plaintiff would have taken steps to have the relevant document summoned from the Panchayat. That was also not done. 11. It was in the light of the above circumstances, the trial court had to dismiss the suit. 12. The approach made by the lower appellate court does not appear to be correct. They are based on conjunctures and surmises. In fact, the commissioner has reported that the extent of property now on site is only one cent. It is interesting to note that the claim made by the plaintiff is for 7 cents. So also there was no attempt from the side of the plaintiff to have the property claimed by her located. In short, there was no reason to interfere with the judgment and decree of the trial court. 13. In the result, this appeal is allowed. The judgment of the lower appellate court is set aside and the decree of the trial court is restored with the observation that findings in this suit will not preclude the plaintiff, if so S.A No. 4 of 1997 6 advised from bringing a proper suit based on title, if she is entitled to do so. P.BHAVADASAN, JUDGE ma S.A No. 4 of 1997 7