IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 SA.NO. 784 OF 1998(B) -------------------- {IN A.S.NO.12/1995 OF THE SUB COURT, HOSDRUG IN OS.438/1991 OF THE MUNSIFF COURT, HOSDRUG} .................... APPELLANT(S)/RESPONDENT/DEFENDANT: ----------------------------------------------- 1. P.KUNHABDULLA, S/O.OTTATHAYIL MOHAMMED KUNHI, CULTIVATORS, R/AT PERUMBATTA OF BEEMANADI VILLAGE, HOSDURG TALUK, P.O.PERUMBATTA (VIA), NILESHWAR. 2. P.KASMI, S/O.OTTATHAYIL MOHAMMED KUNHI, CULTIVATORS, R/AT PERUMBATTA OF BEEMANADI VILLAGE, HOSDURG TALUK, P.O.PERUMBATTA (VIA), NILESHWAR. 3. P.MOOSA, S/O.OTTATHAYIL MOHAMMED KUNHI, CULTIVATORS, R/AT PERUMBATTA OF BEEMANADI VILLAGE, HOSDURG TALUK, P.O.PERUMBATTA (VIA), NILESHWAR. 4. ADROOF, S/O.OTTATHAYIL MOHAMMED KUNHI, CULTIVATORS, R/AT PERUMBATTA OF BEEMANADI VILLAGE, HOSDURG TALUK, P.O.PERUMBATTA (VIA), NILESHWAR. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------------------------------------- THELAPRATH ABDUL RAHIMAN, S/O. KUNHAMINA UMMA, CULTIVATOR, R/AT PERUMBATTA OF BEEMANADY VILLAGE, HOSDURG TALUK, P.O.PERUMBATTA, NILESHWAR. ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.784 of 1998 --------------------------------------- Dated this the 22nd day of September, 2010 JUDGMENT The defendants in a suit for injunction are the appellants. They filed this appeal aggrieved by the decision rendered by the lower appellate court granting a decree of injunction in favour of the respondent/plaintiff, reversing the dismissal of his suit by the trial court. 2. Plaint schedule property is described by the plaintiff as having an extent of 3 acres as comprised in Survey No.278/1 of Bheemanadi Village. Plaintiff claimed title and possession over that property under Ext.A7 purchase certificate issued by the Land Tribunal, Nilambur. Ext.A6 is the copy of the order passed by the Land Tribunal directing issue of the purchase certificate in favour of the plaintiff. The issue of purchase certificate was in recognition of the tenancy, which the plaintiff enjoyed over the suit property, and to substantiate that Exts.A1 to A5 relating to the assignment of tenancy over that property were produced. Plaintiff also produced S.A.No.784 of 1998 :: 2 :: Ext.A9 series receipts evidencing payment of revenue charges over the suit property after issue of Ext.A7 purchase certificate in his favour. There was an attempt by the defendants to trespass upon the suit property and to cut down a cashew tree was canvassed for seeking the decree of injunction against them. 3. Resisting the suit claim, the defendants contended that a portion of the suit property described in the written statement, having an extent of 1.25 acres, formed part of their property, and the plaintiff is in possession only of the portion of the property to the west of their property. In the title deeds of the plaintiff, according to the defendants, a larger extent had been mischievously shown to grab portions of defendants' property. Purchase certificate issued in favour of the plaintiff (Ext.A7) was also impeached by the defendants, contending that it has been obtained by fraud and, so much so, not binding on the defendants. The defendants, S.A.No.784 of 1998 :: 3 :: in continuation of their father, are in possession and enjoyment of 3.70 acres in Survey No.278/1 and a portion of that property had been included in the plaint schedule by the plaintiff for filing the suit and to claim injunction against them was the case of the defendants. They further contended that the property in their possession, 3.70 Acres as claimed by them is separated on its western side with the property of the plaintiff by a row of glyricidia plants, aged about 15 years, and as such, there is a well defined boundary separating the two properties under the possession of the respective parties. 4. The main question arising on the pleadings of the parties in the nature of the suit was whether the plaintiff had possession over the whole of the suit property described in the plaint. The advocate commissioner deputed by the court, after conducting local inspection, filed a report and plan as Exts.C1 and C2 respectively. Pursuant to filing of such report and plan, on further S.A.No.784 of 1998 :: 4 :: directions issued by the trial court, after conducting local inspection again, the commissioner had filed further reports Exts.C3 and C4 and a plan as Ext.C5. Apart from the reports and plans, as referred to above, the evidence let in the case consisted of the testimonies of Pws.1 and 2 and Exts.A1 to A9 series documents for the plaintiff, and testimony of Dw.1 and Exts.B1 to B12 documents for the defendants. 5. The trial court, after appreciating the materials tendered in the case, came to the conclusion that the plaintiff is not in possession of the whole property described in the plaint schedule, but only to the west of the property of the defendants having an extent of 3.70 Acres in the same Survey number. Presence of stumps of glyricidia plants at the boundary separating the two properties, which according to the defendants, was consequent to cutting and removing of the plants after institution of the suit by the plaintiff, reported by the S.A.No.784 of 1998 :: 5 :: advocate commissioner in his reports and also that in all the title deeds relied on by the plaintiff, the southern boundary of the his property is shown as belonging to one Assanar Haji, but, the disputed portion claimed by the plaintiff as forming part of his property, as identified under the report and plan of the Commissioner and in the plaint schedule description, the southern boundary is shown as that of the defendants, weighed with the trial court to conclude that the claim of possession set up by the plaintiff over the whole of the plaint property is unacceptable. The contention raised by the defendants that the plaintiff has possession and enjoyment only over 1.30 acres in the survey number to the west of their property was found more probable and acceptable to the trial court on the materials tendered and in that view of the matter, the plaintiff was non-suited. However, in the appeal preferred by the plaintiff against the decree rendered by the trial court, the lower appellate court S.A.No.784 of 1998 :: 6 :: proceeded to examine the rival claims of possession of the parties over the property described in the plaint with reference to their title deeds. Observing that the title deed of the plaintiff was taken in earlier point of time from the common title holder, who had conveyed the property enjoyed by the defendants also by a sale deed to their father, the lower appellate court formed a conclusion that the extent of the property shown in the title deed of the plaintiff should be given more significance and what could have been conveyed to the father of the defendants by the common title holder was only the remaining extent to which he had title. The common title holder was having only 6.18 acres in the survey number and after obtaining title over 3 acres by the plaintiff, the predecessor of the defendants could have obtained only the remaining extent of 3.18 acres and so much so, their claim over 3.70 acres in the survey number cannot be accepted as true and correct, was the view taken by the lower appellate court. S.A.No.784 of 1998 :: 7 :: With reference to the features at the site as reported by the commissioner, more particularly the row of glyricidia plants at the boundary of the two properties claimed by the defendants, the lower appellate court expressed the view that it cannot be given much significance or value when glyricidia plants were seen on other parts in the properties of both the parties and, further, there was nothing to indicate that a clear cut fence of glyricidia plants separated the two properties. In forming such conclusions, the lower appellate court, reversing the dismissal of the suit by the trial court, granted a decree of injunction in favour of the plaintiff. 5. I heard the counsel on both sides. 6. Having regard to the submissions made and perusing the judgments rendered by both the courts below, with reference to the materials tendered in the case, it is seen that the lower appellate court has misdirected its enquiry ignoring the fact that the suit was S.A.No.784 of 1998 :: 8 :: only for an injunction simplicitor in which rival possession was claimed by the parties over, with the plaintiff claiming exclusive possession over the entire suit property and the defendants over a portion of the same. The controversy required to be adjudicated by the court was one for possession alone and since the plaintiff has applied for a decree of injunction, it was incumbent upon him to prove exclusive possession over the plaint schedule property. When his possession was disputed by the defendants contending that they are having possession over at least a portion of the plaint schedule property and to sustain such rival possession, oral and documentary evidence was tendered by them, it was not a case for determination of the possession on the basis of title of the parties. True, there is a presumption that possession follows title. But in suits for injunction, what is to be considered is as to who is in possession of the suit property. Of course, in a claim for injunction over the suit property title has significance, S.A.No.784 of 1998 :: 9 :: but where the possession of the land is with another title of the plaintiff over the property can be of no avail to seek prohibitory decree of injunction against trespass. The material circumstances taken note of by the trial court that the title deeds of the plaintiff clearly spell out that the southern boundary of his property belonged to Assanar Haji alone and not that of the defendants also, which was demonstrated when the plaint property was identified in Ext.C5 plan by the Advocate Commissioner, and that even in the written statement the defendants had set up a specific contention that at the boundary line separating the properties enjoyed by the parties, there is a row of glyricidia plants, and that the commissioner, at the time of local inspection, found some stumps of glyricidia plants at the site shown by the defendants as the boundary line, which, according to them, was on account of the cutting and removal of the plants by the plaintiff, to conclude that the claim of exclusive possession over the plaint schedule S.A.No.784 of 1998 :: 10 :: property by the plaintiff is not proved, on the materials produced was not open to interference by the lower appellate court solely on the basis of re-evaluation of the title deeds of the respective parties. It has also come out from the evidence that long before the institution of the suit, the defendants had mortgaged the property in their possession i.e., 3.70 Acres in the survey number, to a Co- operative Bank and at that point of time, a plan prepared by the Village Officer, identifying the mortgaged property was also produced before the bank. Ext.B8 is the mortgage deed and Ext.B7, the plan over the property prepared by the Village Officer. In addition to the above documents, the defendants have also produced Exts.B9 and B10. Ext.B10 is an encumbrance certificate issued in their favour over their property, having an extent of 3.70 Acres in R.S.No.278/1. Release of the mortgage from the bank after discharge of the debt is evidenced by Ext.B4 series. So, on the materials tendered, especially Exts.B6, S.A.No.784 of 1998 :: 11 :: B7, B8 and B11 series, the defendants were able to show that they have been exercising right, possession and enjoyment over 3 Acres and 70 cents at least one decade before the filing of the present suit. 7. Being a suit for injunction, as already indicated above, the burden was squarely on the plaintiff and not on the defendants to prove his exclusive possession over the plaint schedule property and when the materials tendered by the defendants disclose that such claim of possession by the plaintiff cannot be approved, the necessary consequence that has to follow is that the plaintiff is not entitled to the decree of injunction. The trial court has rightly and correctly reached the conclusion that, in the given facts of the case and on the materials produced, the claim of possession over a portion of the property by the defendants is more probable and acceptable and that being so, the plaintiff is not entitled to a decree in the suit. The lower appellate court was not S.A.No.784 of 1998 :: 12 :: justified in interfering with that decree, that too, on the basis of the title deeds of the properties for determining the possession over the property, ignoring other proved the facts and circumstances in the case that the plaintiff has no exclusive possession over the property. The decree passed by the lower appellate court cannot be sustained and is liable to be set aside. Reversing the decision of the lower appellate court, the dismissal of the suit by the trial court is restored. The appeal is allowed, directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.