IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 RSA.No. 687 of 2011() --------------------- AS.200/1996 of SUB COURT, TIRUR OS.295/1994 of MUNSIFF COURT, TIRUR .................... APPELLANT/IST APPELLANT/IST PLAINTIFF --------------------------------------------------------- SATHYAKKAL AAMINAKUTTY, D/O.MUHAMMED, SATHYAKKAL HOUSE, P.O.PADINJAREKKARA, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN SMT.S.JAYASREE RESPONDENT(S): RESPONDENT & 2ND APPELLANT/DEFENDANT --------------------------------------------------- 1. THREKKANASSERI KRISHNAN, S/O.ARUMUGHAN, THREKKANASSERI HOUSE, P.O.PADINJAREKKARA, TIRUR TALUK, MALAPPURAM DISTRICT. 2. S.MOHAMMED ALI, C/O.MOHADIABAU ABDULLA FOUADIMPAUL OIU T.D.CO. PB NO.257, DAMMAM - 31411 K.S.A. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.687 OF 2011 --------------------------------------------- Dated 4th July, 2011 JUDGMENT First plaintiff in O.S.295/1994 on the file of Munsiff court, Tirur is the appellant. Defendant and second plaintiff are the respondents. The suit was one for permanent prohibitory injunction restraining first respondent from trespassing into the plaint schedule properties. Plaint schedule properties are two items, 24 cents in R.S.45/4 and 28 cents in R.S.45/7. Appellant would contend that item No.1 of the plaint schedule properties belong to the appellant under Ext.A1 sale deed and item No.2 of plaint schedule property originally belonged to father of the second respondent and husband of the appellant under Ext.A2 sale RSA 687/11 2 deed. First respondent is only a kudikidappukaran in a portion of the plaint schedule properties. He has no right or possession to the remaining portion. He is attempted to trespass into the plaint schedule properties. Therefore, he is to be restrained by a permanent prohibitory injunction from committing trespass. First respondent resisted the suit contending that he is in possession of 40 cents of the plaint schedule properties and he is not a kudikidappukaran as claimed and he has purchased the jenm right from the Land Tribunal under Ext.B1 order in S.M.207/1985 and plaintifs are not entitled to the decree sought for. Learned Munsiff framed the issues, including an issue on title. Still, plaintiffs did not pay the court fee under Section 27(a) of Kerala Court fees and Stamp Valuation Act. RSA 687/11 3 The suit is instituted paying court fee under Section 27(c). In such circumstances, the only question is regarding possession of the plaint schedule properties. Learned Munsiff on the evidence found that plaintiffs did not establish possession of plaint schedule property and therefore, dismissed the suit. Plaintiffs challenged the judgment before Sub Court, Tirur in A.S.200/1996. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. 3. Learned counsel argued that even though court fee was not paid under Section 27(a) of Court Fees and Suit Valuation Act, and RSA 687/11 4 the suit is only one for injunction, when the plaintiffs and the defendant were setting up the separate rival tenancies and an issue on title was also framed, courts below should have considered the question on title also. Learned counsel would argue that, though reliance was placed on Ext.B1 order of the Land Tribunal in S.M proceedings, before the first appellate court, the order of the Appellate Authority setting aside Ext.B1 was produced and it was received as additional evidence, though wrongly marked as Ext.B8, instead of Ext.A8, Ext.B8 shows that Ext.B1 order was set aside by the Appellate Authority and the S.M proceedings was remanded to the Land Tribunal for fresh disposal and therefore, based on Ext.B1 order, case of the first respondent should not have been accepted. Learned counsel also argued that RSA 687/11 5 though Exts.A1 and A2 assignment deeds disclose the lease set up by the appellant and Ext.A3 Adangal extract shows that the landlord is Ahammadkutty, under whom plaintiffs set up title and it established that Kunjali the landlord alleged by the first respondent, has no right and this aspect was not properly appreciated by the courts below. Learned counsel also argued that report of the Commissioner shows that entire plaint schedule properties are lying as compact block, which will not be the case, if there was a lease in respect of 40 cents as claimed by the first respondent and on the evidence it should have been found that plaintiffs are in possession of the plaint schedule property and a decree for injunction should have been granted. Learned counsel also argued that in any case, a decree RSA 687/11 6 for injunction in respect of the undisputed portion should have been granted. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. As the suit is one for injunction, the only question is on the possession. True, if for deciding that question title is also to be settled, question of title may also assume importance. But plaintiffs have not chosen to pay the court fee under Section 27(a) of Kerala Court Fees and Suit Valuation Act, in spite of the fact that an issue on title was framed. When appellant did not pay court fee under Section 27(a), the failure of the courts below to consider the question on title cannot be challenged. The only question is whether the plaintiffs established their possession over the plaint RSA 687/11 7 schedule property. 5. Judgments of the courts below show that on the evidence it was found that appellant did not establish possession. First appellate court found that when examined as PW1, appellant deposed that first respondent has dig a well and planted trees in the plaint schedule property. There is no case for the appellant that plaintiffs permitted the first respondent to dig a well or plant trees, even though it was alleged that permission was granted to put up a building and first respondent is a kudikidappukaran. In the light of the evidence of PW1, factual finding of the courts below that plaintiffs did not establish possession of the plaint schedule property cannot be said to be not in accordance with law. When the dispute is only with regard to 40 RSA 687/11 8 cents claimed by the first respondent and plaintiffs have no case that first respondent attempted to trespass into the undisputed portion of the property, I do not find it necessary to grant a decree in respect of the undisputed portion of the property. On that ground also no interference is warranted. As no substantial question of law is involved, appeal is dismissed. It is made clear that dismissal of the suit will not prevent the appellant from instituting a suit based on title, as question of title is not decided in the suit. M.SASIDHARAN NAMBIAR, JUDGE. uj.