IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 SA.No. 585 of 1998(C) ------------------------------- AS.27/1994 of SUB COURT, HOSDRUG OS.411/1991 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS IN S.A.-APPELLANTS IN THE LOWER APPELLATE COURT-DEFENDANTS 2 & 3 IN SUIT: -------------------------------------------------------------------------- 1. PURUSHOTHAMAN, S/O.LATE KUNHAMBU NAIR AND P.KALLYANI AMMA, RESIDING AT ERUMAPALLAM, PERIYA VILLAGE, HOSDRUG TALUK, P.O. KANHIRADUKKAM, (VIA), PERIYA. 2. MURALEEDHARAN, S/O. DO. IN DO. DO. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.P.B.KRISHNAN. RESPONDENT IN S.A.-RESPONDENT IN THE LOWER APPELLATE COURT-PLAINTIFF IN SUIT: ---------------------------------------------------------------------------- V. NARAYANI, W/O.BALAKRISHNAN NAIR, RESIDING AT KELOTH, PAYYANNUR, TALIPARAMBA TALUK, P.O. PAYYANNUR. BY ADV. SRI.R.SHANKAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ---------------------------- S.A.No. 585 of 1998 --------------------------------- Dated this the 14th day of June, 2011 JUDGMENT Aggrieved by the concurrent findings against them the defendants in O.S.No.411 of 1991 before the Munsiff's Court, Hosdurg have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid claim to 1.81 acres of land which according to him, was obtained under Ext.A6 dated 06.04.1990. He has obtained purchase certificate in respect of the suit property along with other property. According to him, defendants tried to trespass into the suit property. They have no right over any portion of the suit property. Since the plaintiff is unable to resist the acts of the defendants, the suit has been laid. 3. The defendants resisted the suit. They denied the title set up by the plaintiff and pointed out that in fact one Abdulla had obtained three acres of property in survey No.393/1 from the same Tharavad. The said Abdulla assigned his tenancy right to Erole Ambu and his brother Kannan in 1947. Thereafter, Kannan S.A.No. 585 of 1998 2 and Ambu sold 50 cents of land out of the three acres to their brother Koman and had partitioned the balance extent of 2.50 acres in the year 1951. As per the said partition 1 acre was allotted to the share of Ambu and 1.50 acre was allotted to Kannan. Kannan had obtained tenancy right of another 75 cents of land in survey No.393/1. It is the case that Kannan had obtained two other items of property which are not relevant for the same purpose. By Ext.B1 dated 23.08.1969 Kannan assigned his property to the first defendant. It was contended that plaintiff had taken a portion of the property owned and possessed by the defendants, the plaintiff is not entitled to any relief. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A9 from the side of the plaintiff. Defendants had DWs 1 and 2 examined and documents marked as Exts.B1 to B7 series. Exts.C1 to C4 are the S.A.No. 585 of 1998 3 commissioner's reports and plans. The trial court on an evaluation of the evidence granted a decree in favour of the plaintiff. The defendants carried the matter in appeal as A.S.27/1992 before the Sub Court, Hosdurg. The lower appellate court observing that the trial court has considered the entire matter in considerable detail, dismissed the appeal and confirmed the decree of the trial court. Hence, the defendants before this Court. 5. Notice is seen issued on the following substantial questions of law: (A). In a suit for permanent prohibitory injunction seeking to restrain defendants from trespassing into the suit property, should not the plaintiff prove his or her possession on the date of suit before the court finds the plaintiff to be entitled to the relief of injunction. (B). Whether, on the facts and in the circumstances of the case, where the suit is only for injunction, valuing the suit as one for injunction, the plaintiff would be entitled to the relief on alleged identification of the suit property on the basis of the documents of title ? (C). Has not the lower appellate court acted illegally and with material irregularity in dismissing the appeal without reappreciation of the evidence in law and merely putting stamp of approval without exercising its mind ? S.A.No. 585 of 1998 4 6. Shri. S.V.Balakrishna Iyer, the learned Senior Counsel for the appellants pointed out that the courts below have misdirected themselves both on facts and in law. The learned counsel pointed out that the courts below have omitted to bear in mind, the fact that the suit is one for injunction alone and not based on title. Even assuming that identification may be necessary, still the plaintiff had to prove his possession over the suit property to get a decree in his favour. There is absolutely no finding by either of the courts below that the plaintiff has succeeded in establishing his possession over the suit property. Going by the commissioner's report, it is not possible to come to a definite conclusion that the property claimed by the plaintiff is in his exclusive possession. Even though, according to the plaintiff, it is an agricultural land and a yielding property, there is absolutely no evidence adduced from the side of the plaintiff to show that he has been taking income from the property. It is also interesting to note, according to the learned counsel for the appellant that even after finding that the commissioner report S.A.No. 585 of 1998 5 was not correct, a decree has been passed in favour of the plaintiff. The identification of the property is not proper. Further, the learned senior counsel pointed out that even going by the commissioner's report, a portion of the property belonged to the defendants is included in the property claimed by the plaintiff. Being a suit for injunction, it was incumbent on the part of the plaintiff to prove exclusive possession of the suit property. That has not been done. Hence, it is pointed out that the judgments and decrees of the courts below are unsustainable in law. 7. There seems to be considerable force in the above submissions. One may refer to the commissioner report immediately. There are two reports and two plans. One may refer to Ext.C4 for the present purpose. The plaint schedule property is identified as JKLM plot shown as an extent of 1 acre 81 cents of land. JKDE plot shown as an extent of 1 acre 14 cents. BCZO plot shown as an extent of 3 acre 15 cents. The commissioner had identified ABCNKDEJPHG. That property is having an extent of three acres as claimed by the defendants. It is significant to S.A.No. 585 of 1998 6 notice that the commissioner in both the reports says that there is no demarcating boundary on the northern side of the plaint schedule property as claimed by the plaintiff. It is also significant to notice that going by the documents of title, the boundary of the plaint schedule property does not tally with the commissioner's report and plan. 8. It has come out from the commissioner report that property ABCNKDEJPHG belongs to Ambu. The said plot is lying at a lower level when compared to the property on the southern and western side. It is interesting to note that the plaintiff laid claim to a portion of the property owned and possessed by Ambu. One has to remember that the property of Ambu lies at a lower level and therefore, one could clearly identify the property to which the plaintiff is entitled. The evidence of PW1 which is referred to by the trial court is to the effect that Exts.C2 and C4 are correct. There is no grievance regarding the same. Even though the said statement was made by PW1 strangely enough, the trial court says that, that statement cannot be taken by the S.A.No. 585 of 1998 7 defendants to defeat the claim of the plaintiff. It is even more strange that several admissions were made by the plaintiff which are crucial in the matter. According to the trial court, that cannot be taken aid by the defendants since they have set up independent title and right over the property. It is here that one has to remember that the suit is one for injunction alone. The question who was in actual possession of the property as on the date of the suit. It is not necessary for the defendants to get the property identified and establish their title of the property. 9. It is significant to notice that the plaintiff examined himself alone in support of his case. He has not adduced any evidence to show that income from the property was being taken by him. From the commissioner's report, it is clear that there are yielding trees standing in the property. Moreover, a reading of the evidence of PW1 shows that he has no idea about the property. It is under unsatisfactory state of affairs that the court below had granted a decree in favour of the plaintiff. S.A.No. 585 of 1998 8 10. The lower appellate court was satisfied by observing that the trial court has considered the issues in considerable detail and it is unnecessary for the appellate court to recount the issue. One has to notice that the real issue involved is one of possession and not identity of the property. The lower appellate court ought to have examined the question whether the plaintiff has succeeded in proving possession of the property. There is no explanation offered by the plaintiff also regarding the plot said to be belong to Ambu, going by the commissioner's report and plan. Going by the evidence, the boundaries do not tally. Whatever that be, the suit being one for injunction, the issue of possession alone was relevant and significant and title was irrelevant. 11. On going through the materials on record, it is difficult to find that plaintiff had adduced acceptable evidence to show that he was in actual possession of the plaint schedule property and he is taking income therefrom. Both the courts below have omitted to note the valid aspect and have passed a decree. S.A.No. 585 of 1998 9 In the result, this second appeal allowed. The impugned judgments and decrees of the lower appellate court are set aside and the suit stands dismissed, leaving open the liberty of the plaintiff to establish his title for such relief if so advised. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln