IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 641 of 1999(B) -------------------------- O.S. NO.310/1991 OF PRL. MUNSIFF COURT, KASARAGOD A.S. NO.278/1996 OF SUB COURT, KASARAGOD PLAINTIFF/RESPONDENT/APPELLANT -------------------------------------------- CHAVERI ASHOKAN NAIR, AGED 34 YEARS, S/O. U.K. GOPALAN NAIR, HINDU, CULTIVATOR RESIDING AT PERIYATH, BADADKA VILLAGE, KASARAGOD TALUK. BY ADV. SRI.KODOTH SREEDHARAN DEFENDANTS/APPELLANTS/RESPONDENT(S): ------------------------------------------------------ 1. SMT.KARICHARY KAMALAKSHI AMMA, AGED 46 YEARS, W/O. KUNHIRAMAN NAIR P HINDUS, CULTIVATORS, RESIDING AT RAYIKOCHI IN BADADKA VILLAGE KASARAGOD TALUK, POST KUNDANKUZHI 2. K. MANIKANTAN, AGED 25 YEARS, S/O.P KUNHIRAMAN NAIR HINDUS, CULTIVATORS, RESIDING AT RAYIKOCHI IN BADADKA VILLAGE KASARAGOD TALUK, POST KUNDANKUZHI R1 & 2 BY ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON O6/04/2011 DELIVERED THE FOLLOWING: svs. ORDER ON C.M.P. NO. 1784/1999 IN S.A. NO.641/1999 DISMISSED 06/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 641 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2011. JUDGMENT The plaintiff in O.S.310 of 1991 before the Munsiff's Court, Kasaragod, who was non-suited by the lower appellate court, is the appellant. 2. Two suits were jointly tried and disposed of by a common judgment. The appellant had filed O.S.310 of 1991 and the respondents filed O.S. 579 of 1992. Defendants in O.S. 310 of 1991 preferred two appeals as A.S. Nos.278 of 1996 and 279 of 1996. The court below allowed A.S. 278 of 1996 and dismissed A.S. 279 of 1996. 3. The plaintiff in O.S. 310 of 1991 laid claim to 3.50 acres of land in R.S. No. 385/1 of Badiadka village. According to the plaintiff, defendants 1 and 2 in the suit held properties on the western side of the plaint schedule property. O.S. 579 of 1992 is filed against the S.A.641/1999. 2 plaintiff in O.S.310 of 1992 on the allegation of he having trespassed into their property. 4. The plaintiff claimed to be in absolute possession and enjoyment of the suit property by virtue of Ext.A1 dated 26.8.1986. Eversince the sale deed in his favour, the plaintiff was in absolute possession and enjoyment of the property. The plaintiff also pointed out that he had availed of a loan from a Bank mortgaging the suit properties. It is alleged that the defendants tried to trespass into the property. Since the plaintiffs apprehended trouble from the defendants, the suit was laid. 5. The defendants resisted the suit by pointing out that the plaintiff did not have any manner of right over the suit property. The sale deed relied on by him is not genuine. According to the defendants, Lakshmi Amma never had any manner of right over the suit property and therefore she could not convey any right to the plaintiff. They claimed that one Kunhiraman Nair, the husband of the first defendant and the father of the second defendant had S.A.641/1999. 3 obtained purchase certificate in S.M. No.608 of 1978 and S.M. 14 of 1990 from the Land Tribunal concerned. Eversince then, Kunhiraman Nair and defendants were in joint possession of the property. They disputed the description of the plaint schedule property. 6. It is not necessary to refer to the averments in O.S.579 of 1992 since there is no appeal against the judgment and decree in that suit. Both the suits were jointly tried and O.S.310 of 1991 was considered as the leading case. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A20 series from the side of the plaintiff. The defendants had D.W.1 examined and Exts.B1 to B5 marked. Exts.C1 to C8 are the commission report and plan. 7. The trial court on an evaluation of the evidence and mainly based on the commission report though found that identification was rather difficult came to the conclusion that on the evidence available, the plaintiff is in possession of the suit property and accordingly decree was granted in S.A.641/1999. 4 his favour. The lower appellate court mainly based on the difficulty in identification reversed the decree and dismissed the suit. 8. Notice is seen issued on the following questions of law: “A. The Trial Court having rightly concluded on the identity of the plaintiff's property and the separating boundary from that of the defendant and granted the decree for injunction; have not the appellate court gone wrong in reversing the well considered judgment of the trial court especially when in paragraph 16 of the judgment the appellate court is very sure that the defendants property cannot be identified on the strength of the purchase certificate produced by them. B. In the absence of any plea or evidence regarding the alternate case of the defendants about inclusion of the portion of the properties in the neighbouring property which was rightly rejected by the Trial court on the basis of the evidence available; has not the appellate court gone wrong in making out a case of the S.A.641/1999. 5 defendants and dismissing the suit of the plaintiffs on that speculation. C) Is not the reasoning and conclusions adopted by the Appellate Court outside the pleading and evidence in the instant case. D) Is not the finding of the Appellate Court vitiated for he reason that the same is contrary to the evidence and materials on record. E) Has not the appellate court gone wrong in reappreciating the evidence and materials on record on the basis of the contention raised in arguments which was rightly rejected by the trial court in the light of evidence and materials on record. F) When the identity of the plaintiff's property is established and the separating boundary is also defined and further when the Appellate court concluded that the defendants property could not be identified; should not have the appellate court restrained itself from interfering with the trial curt decree in the instance case.” S.A.641/1999. 6 9. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the well considered judgment rendered by the trial court where possession of the plaintiff was found in respect of the suit property. Defendants were neither successful in establishing the identification of the property, nor they were able to prove their possession. Accordingly it is contended that the judgment and decree of the lower appellate court are unsustainable in law. 10. There seems to be considerable force in the above submission. Plaintiff's property is said to be on the eastern side of the property owned and possessed by the defendant. Even though the defendants contended that the vendor of the suit property had no manner of right over the property, that was not established. It is interesting to note that both the parties claim property in R.S.No.385/1. It is also interesting to note that both the parties relied on the purchase certificate obtained by them in relation to the respective portions of land. The trial court has noticed that S.A.641/1999. 7 neither of the parties has produced the sketch appended to the purchase certificate given to them. Ext.C8 plan appears to give a reasonably good picture of the nature and lie of the property. It was found by the trial court that the property lying on the western side comprised in 385/1C is in the possession of the first defendant. But he had no claim regarding the property lying on the east of R.S. 385/1C. In fact the actual dispute was regarding the property comprised in Sy. No. 385/1C. The evidence discloses that the other properties which admittedly belonged to the plaintiff was lying contiguously with the plot comprised in Sy. No. 385/1C. It is also significant to notice that the property in the possession of the plaintiff is bounded by compound wall. It is to be noted that the improvements seen in the property claimed by the plaintiff were of uniform nature. The commissioner was also able to find out remnants of an old compound wall, which existed a little distance further to the north of the compound wall C1. The commissioner has specifically mentioned that the claim of S.A.641/1999. 8 the defendant that there was a mud ridge separating the two properties was false. 11. Plaintiff had produced Exts.A6 to A8 and A20 to show that he had planted rubber as shown in Ext.C8 plan. That would indicate that the plaintiff was exercising any act of possession over that portion of the plot which is comprised in R.S. No.385/1C. One cannot omit to note that the commission report mentioned that on the western side of C1 compound wall, there are no rubber plants. The defendants have no case that they had planted rubber in their property. 12. It was the above facts, which had persuaded the trial court to hold in favour of the plaintiff. The reasons in the judgment of the trial court are clearly unsustainable in law. 13. The lower appellate court seems to have gone mainly on the question of identity of the property. It omitted to note that the suit was one for injunction simplicitor. The issue that had to be considered was the S.A.641/1999. 9 possession of the parties. Even assuming that there is some confusion regarding the identity of the property, the trial court has clearly found that the plaintiff was in possession of the property for cogent and convincing reasons. The decision of the lower appellate court based on the identity of the property cannot get support in law. In the result, this appeal is allowed and the judgment and decree are set aside and the judgment and decree of the trial court are restored. P. BHAVADASAN, JUDGE sb.