IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 RSA.No. 503 of 2004() --------------------- AS.329/2003 of II ADDL. DISTRICT COURT, PALAKKAD OS.294/2002 of MUNSIFF COURT, CHITTUR .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------- GNANA SUBRAMANIA SENTHIL RAJ, S/O. RANGASWAMY KOUNDER, RESIDING AT MOONGILMADA, KOZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): APPELLANT/PLAINTIFF: ----------------------------------- KANTHASWAMY, S/O. KALIYAPPA KOUNDER RESIDING AT VANNAMADA, KOZHIPATHY VILLAGE CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.P.R.VENKETESH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.503 of 2004 ............................................ DATED THIS THE 18th DAY OF JULY, 2011 JUDGMENT Defendant in O.S.294 of 2002 on the file of Munsiff Court, Chittur is the appellant. Respondent is the plaintiff. Respondent instituted the suit for a permanent prohibitory injunction contending that plaint schedule property originally belonged to Nachammal, the mother of the appellant under Ext.A6 final decree and under Ext.A1 sale deed she assigned the property in favour of the respondent and he has been in possession of the property since then and appellant has no right or possession of the property and he was residing along with Nachammal and owing to the request of the appellant that he be permitted to reside in the house for six months, he was permitted to reside therein and when respondent started constructing a house in the plaint schedule property and demanded appellant to surrender the house, appellant started creating trouble. He has no right to trespass into the property or cause any obstruction to the RSA 503/2004 2 enjoyment of the property. Respondent sought a decree for injunction. Appellant resisted the suit contending that respondent has not been in possession of the property and during 1998, the mother Nachammal started residing along with the respondent and there was a mediation and in the mediation, the mother permitted appellant to be in possession of the property and to take the income and appellant paid Rs.50,000/- to the mother and also agreed to pay Rs.500/- per month and since then he has been in possession of the property and he constructed a house in the plaint schedule property and appellant is in possession of the property as a licensee under an irrevocable license and respondent is not entitled to the decree sought for. It was contended that description of the plaint schedule property is not correct and the boundaries are shown so as to include a portion of the property belonging to the sister of the appellant to whom B schedule property was alloted under Ext.A6 final decree. 2. Learned Munsiff on the evidence of Pws 1 and 2, DW1, Exts.A1 to A6 and B1 to B3 dismissed the suit holding that the description of the property in Ext.A6 and A1 do not tally and RSA 503/2004 3 respondent did not identify the plaint schedule property and held that he is not entitled to the decree sought for. Respondent challenged the decree before District Court, Palakkad in A.S.329 of 2003. Learned Additional District Judge, relying on the evidence of the appellant as PW1 found that there is no dispute with regard to the plaint schedule property and relying on the contentions raised in the written statement, it was found that the case of appellant was that he is a licensee under the mother and claimed that Rs.50,000/- was paid to her and the property was put in his possession and he effected improvements, but no evidence was adduced to prove the license or the payment to the mother and the mother was examined as PW2 and her evidence shows that she has been in possession of the property till it was transferred in favour of the respondent under Ext.A1 and held that respondent is entitled to the decree for injunction sought for. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. “ In the face of the fact that the description of the property in the C schedule to Ext.A6 RSA 503/2004 4 and the description of the plaint schedule property materially differed with reference to the boundaries, was the lower appellate court justified in reversing the judgment and decree of the trial court without any other evidence adduced by the plaintiff on whom the burden lay?”. 4. Learned counsel appearing for appellant and respondent were heard. 5. There is no dispute with regard to the property claimed by the respondent under Ext.A1. It originally belonged to Nachammal, the assignor of appellant and Sugandi Jyothimani, sister of the appellant and the appellant. Nachammal is the mother and the other two, her children. Ext.A6 establishes that the common property was divided under the said decree. A schedule property was alloted to the appellant, B schedule to his sister, Sugandi Jyothimani and C schedule to the mother. Verification of the properties make it clear that A schedule property alloted to the appellant lies to the east of the B schedule property alloted to his sister. The boundaries of C schedule RSA 503/2004 5 property shows that the northern and western boundary of the C schedule property is the A schedule property, alloted to the appellant. It is under Ext.A1, the respondent is claiming title to the property. Under Ext.A1, Nachammal, the mother of the appellant, assigned the C schedule property alloted to her under Ext.A6, to the respondent. Though appellant raised a contention that respondent did not derive any right under Ext.A1, as rightly found by the first appellate court, the evidence of PW2, the mother Nachammal establish that she has been in possession of the C schedule property obtained under Ext.A6 and she transferred that property for valuable consideration to the respondent under Ext.A1 sale deed and she put the respondent in possession of the property. Therefore, the right of the respondent to the property originally belonging to Nachammal under C schedule of Ext.A6 cannot be disputed. In fact, the written statement filed by the appellant shows that the case of the appellant is also that C schedule property in Ext.A6 has been in the possession of the mother. According to the appellant when the mother started to live with the respondent, there was a mediation and in the mediation, appellant was permitted to be in RSA 503/2004 6 possession of the property as a licensee. It is based on that defence, appellant contended that he effected valuable improvements and thereby the license has become irrevocable. First appellate court on the evidence found that appellant did not succeed in establishing a license as claimed. That finding of fact which is in accordance with the evidence cannot be interfered. Therefore, if the plaint schedule property is the property alloted to Nachammal under Ext.A6 final decree, appellant is definitely entitled to get a decree for injunction, as possession of the mother over the C schedule property under Ext.A6 was not disputed and the evidence of the mother as PW2 establishes that she handed over possession of the property to the respondent, provided his possession is proved. The question is whether the plaint schedule property is C schedule property covered of Ext.A6 decree. 6. Though the learned Munsiff did not frame an issue on the identity of the plaint schedule property, learned Munsiff found that appellant has raised a contention in the written statement that the description of the boundaries is not correct and also that by the description, a portion which does not belong to RSA 503/2004 7 Nachammal is also being taken as the plaint schedule property. In such circumstances, normally an issue regarding identity of the plaint schedule property should have been framed. As no issue was framed, respondent could contend that he did not take out a commission as identity was not in dispute. But on going through the evidence and the contentions, it is clear that the real dispute is with regard to the identity of the property obtained by the mother and claimed by the respondent under Ext.A1. 7. When Ext.A6 shows that the northern and western boundary of C schedule property alloted to Nachammal is A schedule property therein, viz, the property alloted to appellant, Ext.A1, the assignment deed under which Nachammal assigned C schedule property covered under Ext.A6 to the respondent, shows that the northern boundary is the property belonging to Retnaswami and Abdul Hakkim and not the property of the appellant as seen in Ext.A6. True, the western boundary is shown as the property of the appellant. But if the plaint schedule property is to be fixed with reference to the northern boundary, it may extend upto the property belonging to Retnaswamy and Abdul Hakkim. Ext.A6 shows that the northern boundary of A RSA 503/2004 8 schedule and B schedule property alloted both to the appellant and his sister is the property of Hakkim and Arumughanasari. Therefore, if C schedule property alloted to the mother Nachammal is to be extended upto the southern boundary of the property of Hakkim and Arumughanasari, it would definitely take in a portion of A schedule or B schedule property covered under Ext.A1. Therefore, as Nachammal could not have any right to transfer such a property shown in Ext.A1, respondent cannot claim right over the said property. Unfortunately, this aspect was omitted to be looked into by the first appellate court. In such circumstances, when an issue on the identity of the plaint schedule property was not framed, trial court was not justified in dismissing the suit without affording an opportunity to the plaintiff to take out a commission and identify the plaint schedule property. As first appellate court, relying upon the evidence of the appellant as DW1 found that there is no dispute with regard to the identity, when in fact description itself shows that there is dispute on the identity of the property, respondent is not entitled to a decree for injunction without identifying the property. In such circumstances, it is necessary to remand the suit to the trial RSA 503/2004 9 court to enable the respondent to identify the property covered under Ext.A1 which could only be C schedule of Ext.A6. In view of the mistake in the northern boundary shown in Ext.A1, as his assignor could assign only C schedule property obtained under Ext.A6, Commissioner has to identify the plaint schedule property as C schedule property alloted to Nachammal under Ext.A6. As stated earlier, in view of the finding of fact that Nachammal has been in possession of the said C schedule property and she transferred the property in favour of respondent and appellant did not succeed in establishing a license, respondent is entitled to the decree for injunction, provided the property so identified by the Commissioner is proved to be in possession of the respondent. Even if the property so identified is found to be belonging to Nachammal and under Ext.A1 to the respondent, if respondent is not in possession of the property, a decree for injunction cannot be granted. 8. Appeal is allowed in part. The decree in A.S.329 of 2003 on the file of District Court, Palakkad and the decree in O.S.294 of 2002 on the file of Munsiff Court, Chittur are set aside. O.S.294 of 2002 is remanded to Munsiff Court, Chittur for fresh RSA 503/2004 10 disposal in accordance with law. The learned Munsiff is directed to appoint a Commission, on an application filed by the respondent at his expense, to identify the plaint schedule property. The Commissioner shall identify the plaint schedule property based on the description of C schedule property of Ext.A6 decree. Once the said property is identified, it is for the learned Munsiff to decide whether the respondent is in possession of the property or not. Parties are at liberty to adduce further evidence. Send back the records immediately. Parties are directed to appear before the Munsiff, Chittur on 8.8.2011. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk