IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 SA.NO. 344 OF 1995() -------------------------------- AS.31/1992 OF SUB COURT, OTTAPPALAM OS.401/1989 OF MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S) – APPELLANTS - PLAINTIFFS: ----------------------------------------------------- 1. RAMAKRISHNA PSHARODI, RETIRED TEACHER, S/O.MAHADEVAMANGALAM PISHARATH NANIKUTTY PISHARASSIAR. 2. IST APPELLANT'S MOTHER NANIKUTTY PISHARASSIAR, APPELLANTS RESIDING AT MUNDAMUKA AMSOM, PARUTHIPARA DESOM, IN OTTAPPALAM TALUK. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN RESPONDENT(S) – RESPONDENTS - RESPONDENTS: --------------------------------------------------------------- 1. PAPPULLY MADHAVAN NAIR, FATHER'S NAME NOT KNOWN, MUNDAMUKA AMSOM NEDUNGOTTUR DESOM, OTTAPPALAM TALUK. 2. THE EXECUTIVE OFFICER, MHADEVAMANGALAM DEVASWOM, MUNJAMUKA AMSOM, OTTAPPALAM TALUK ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE SRI.G.PRABHAKARAN FOR SRI.I.DINESH MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.344 OF 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of September, 2009 J U D G M E N T ---------------------- The Second Appeal arises from judgment and decree of learned Sub Judge, Ottappalam in A.S. No.31 of 1992 confirming judgment and decree of learned Munsiff, Ottappalam in O.S. No.401/89. Appellants sued respondents for a decree for prohibitory injunction claiming that they are the owners in possession of the suit properties. They claimed that plaint schedule properties were set apart to their tavazhi as per Ext.A1, Partition Deed No.1552/1938 as tak No.1 in item No.2 of E1 schedule to that document. Their further claim is that there was a mortgage in respect of that property as per Exts.A2 and A3 and later, they purchased landlord's right from the Land Tribunal as per Ext.A5, purchase certificate. There are old pavements on the east and south of the plaint schedule properties. On the north, it is the road and on the west, there is an old fence. While so, they tried to renew fence in the western side which was objected by respondents. Appellants claimed that on account of act of respondents they suffered loss to the tune of Rs.600/- and hence the suit for decree for prohibitory injunction and recovery of damages. S.A. No.344 of 1995 -: 2 :- Respondent No.1 though resisted the suit initially filed an affidavit during the course of trial stating that he has no intention to trespass into the property or obstruct possession claimed by the appellants. Respondent No.2 contended that identity of property is not correctly stated in the plaint schedule and that recitals in Ext.A1, Partition Deed are not correct. Nor are the boundaries and extent mentioned therein correct. Tarwad of appellants got property only in survey No.16/5 and not in survey No.16/9. Appellants obtained purchase certificate without notice to Respondent No.2. It is further contended that the order granting purchase certificate was challenged by respondent No.2 in appeal, the matter was remitted to the Land Tribunal for fresh consideration and the same is still pending. Learned munsiff framed issues among other things whether the description of plaint schedule property is correct and appellants have got right and possession of the property. Learned munsiff found that documents produced by appellants are not sufficient to show that disputed property belonged to them in so far as the identity of the property is not established. It is observed that boundaries mentioned in the documents produced by appellants did not tally with the boundaries given in the plaint schedule. Learned munsiff also found that failure S.A. No.344 of 1995 -: 3 :- of appellants to get the property measured with the assistance of a surveyor is fatal. First appellate court concurred with the findings and refused to interfere with the dismissal of the suit. Hence the Second Appeal. 2. The following substantial questions of law are framed: 1) Whether appellants are entitled to Re-sy.No.16/9, whether claim in that behalf is to be thrown out on the ground that the 2nd respondent disputed title? 2) Whether identification of the property is a material issue in view of the contention raised by the Devaswom? 3) Whether property has been properly and suitably identified?” 3. It is contended by learned Senior Counsel for appellants that in the light of Exts.A1 to A5 and Exts.C1 to C3 finding of courts below that identity of the property is not established is not correct. According to learned Senior Counsel minor discrepancy in the boundary description has been explained by P.W.1 in his evidence. It is also submitted that at any rate if at all measurement of the S.A. No.344 of 1995 -: 4 :- property with reference to the relevant documents and survey plan was necessary, first appellate court ought to have allowed the request of appellants vide I.A.No.1448 of 1994. 4. True, this a suit for injunction simpliciter and hence what is relevant is possession of the suit property. But, before claiming relief of injunction, appellants are bound to prove that suit property is properly identifiable. Respondent No.2 has disputed identity of the property and descriptions in the documents of title relied on by appellants. It is also contented that appellants have no right over the property comprised in Survey No.16/9 and that the tarwad got title over only property comprised in survey No.16/5. These matters are required to be proved by the appellants before they seek relief of injunction. Courts below have found that boundaries of the property mentioned in Exts.A1 to A5 as claimed by the appellants do not tally with the plaint schedule, descriptions or in the reports and plans (Exts.C1 to C3) given by the Advocate Commissioner. Further finding is that in the plaint schedule even the actual extent is not given. Learned munsiff pointed out that according to P.W1, southern boundary of property in the Partition Deed (Ext.A1) is Devaswom Kunnu Cherivu Parambu and Thekkeppattu Kudiyirippu but what is S.A. No.344 of 1995 -: 5 :- stated in the plaint schedule as the southern boundary of the property is the property in the possession of Ramapoduval and Thekkeppattu Kudiyirippu. Learned munsiff observed that there is confusion regarding identity of the suit property. 5. Appellants have not established the identity of the property in the trial court by taking out Commission to measure the property with the assistance of a surveyor with reference to the title deeds relied on by the appellants and the survey records. Exhibit C2 produced by the Advocate Commissioner is only a rough sketch. That, as rightly held by the courts below is not sufficient to establish the proper identity of the property. But it is seen that appellants filed I.A. No.1448 of 1994 in the first appellate court to appoint a Commissioner to measure the property on the basis of the survey measurements. In a suit of this nature identification of the property is required. In the facts and circumstances of the case it was only just and proper that first appellate court ought to have allowed I.A. No.1448 of 1994 and given appellants an opportunity to get the property identified. On the facts and circumstances of the case I am inclined to think that a remand of the case is required rather than driving the appellants to file a separate suit on title. Hence I.A. S.A. No.344 of 1995 -: 6 :- No.1448 of 1994 will stand allowed. It will be open to the appellants to take out a commission to measure and identify the disputed property with reference to the title deeds and/or survey records as is found necessary. Findings entered by the courts below are set aside and left for fresh consideration. Trial court shall allow both parties to adduce further evidence, if any. 6. Substantial questions of law are answered accordingly. In the result, Second Appeal is allowed by way of remand. Judgment and decree under challenge are set aside and the case is remitted to the trial court for fresh disposal in the light of the observations made above. Parties shall appear in the trial court on 31.10.2009. In case any of the parties do not appear on that day, trial court shall issue summons to them. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.344 of 1995 -: 7 :- THOMAS P.JOSEPH, J. =================== S.A. NO.344 OF 1995 =================== J U D G M E N T 8TH SEPTEMBER, 2009