IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 SA.No. 468 of 2000(E) -------------------- AS.36/1991 of SUB COURT, TIRUR OS.92/1987 of MUNSIFF COURT, TIRUR ................. APPELLANT : APPELLANT / PLAINTIFF ---------------------------------------------------------- *MANGATTIRI MUHAMMED'S SON EANIKUTTY ALIAS KHALIDU, TIRUR AMSOM, KOTT DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. (DIED) *SUPPLEMENTAL APPELLANTS 2 TO 12 IMPLEADED *2. MOHAMMEDKUTTY, S/O. EANIKUTTY @ KHALID, MANGATTIRI HOUSE, TIRUR, MALAPPURAM DISTRICT. *3. M. MUSTHAFA, -DO- *4. M. FATHIMA, D/O. -DO- *5. M. MOIDU, S/O. -DO- *6. M. NAZER, S/O. -DO- *7. M. HASEENA, D/O. -DO- *8. M. RAZEENA, D/O. -DO- *9. M. SAJEENA, D/O. -DO- *10. M. RAZHID, S/O. -DO- *11. M. SHAKIR, S/O. -DO- *12. M. PATHUTTY, W/O. -DO- *SUPPLEMENTAL APPELLANTS 2 TO 12 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 5/2/04 IN IA 1359/03. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ...2/- SA.No. 468 of 2000(E) -2- RESPONDENT : RESPONDENT / DEFENDANT ----------------------------------------------------------------- NARIKKODEN YAHU HAJI'S SON KUNHIMOHAMED, TIRUR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON 28/02/2011, DELIVERED THE FOLLOWING: Mn ...3/- SA.No. 468 of 2000(E) -3- ORDER ON C.M.P. NO. 1258/2000 IN SA. NO. 468/2000 DISMISSED 28/02/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 468 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2011. JUDGMENT The plaintiff, who was non-suited by both the courts below is the appellant. 2. The property involved in this suit is a tank having an extent of 13 cents comprised in Sy. No. 387/9 of Tirur amsom. The plaintiff traces his title to the pond as per Exts.A1, A4 and A5. He would say that item No.6 in Ext.A1 consists of among other things three ponds. One of those ponds is the pond involved in this suit. By the subsequent partition as per Ext.A4, B schedule item No.1 was set apart to the plaintiff excluding the pond. By Ext.A5 release deed, the other sharers released their rights over the pond to the plaintiff. The dispute in this case relates to item No.1 pond identified by the commissioner as per Exts.C1 and C3 plans. The plaintiff claimed absolute right over the same. On the S.A.468/2000. 2 allegation that the defendant is trying to trespass into the property, he laid the suit. 3. The defendants disputed the claim made by the plaintiff and pointed out that the plaintiff had no manner of right over the pond involved in this suit. The name of the pond is Valiyaneeliya Kulam and that is an unassessed land, to which nobody has any special right. The property lying on the northern side of the pond belonged to the defendant and it is still used for irrigation purposes. The property originally belonged to Trikandiyur devaswom and the defendant's mother obtained assignment of the rights and consequent on the death of his mother, the defendant had been in possession of the same. The defendant had obtained patta also over the pond. Contending that the plaintiff has no manner of rights over the pond, he prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 to A10 from the S.A.468/2000. 3 side of the plaintiff. The defendant had examined D.W.1 and marked Exts.B1 to B13. Exts.C1 to C4 are the commissioner's plans and reports. On a consideration of the materials before it, the trial court came to the conclusion that the plaintiff has failed to establish that he is in exclusive possession of the pond and accordingly dismissed the suit. 5. The plaintiff carried the matter in appeal as A.S.36 of 1991. The lower appellate court after an elaborate re-evaluation of the evidence concurred with the trial court and dismissed the appeal. That brings the plaintiff before this court. 6. The following questions of law are seen formulated in the memorandum of Second Appeal: “1) Have the courts below act in accordance with law in considering the evidentiary value and the legal effect of Ext.A7 certificate of purchase? 2) Is the identification of the suit property in accordance with law?” S.A.468/2000. 4 7. Learned counsel appearing for the appellant pointed out that both the courts below have mainly considered the issue of title rather than the question of possession. According to learned counsel, the courts below seem to have forgotten that the suit is one for injunction simplicitor and the question is regarding possession alone. Relying on Exts.A6, A7 and A8, learned counsel contended that these documents are sufficient to show the possession of the plaintiff and it was unnecessary for the courts below to conduct an investigation regarding the title to the property involved in the suit. According to learned counsel, Ext.A7 purchase certificate takes in the disputed pond and Exts.A8, A9 and A10 are revenue receipts showing that the plaintiff had paid tax for the pond in question. Learned counsel criticized the findings of the courts below to the effect that the pond is not taken in by the title deeds of the plaintiff. According to learned counsel, the courts below have not considered the evidence in the proper perspective and that has resulted in an erroneous conclusions. S.A.468/2000. 5 Whatever that be, according to learned counsel, there is sufficient evidence in the case to show that the plaintiff is in exclusive possession of the pond and the courts below should have held so. 8. Learned counsel appearing for the respondent on the other hand pointed out that both the courts below have considered the question of possession of the plaintiff and found that there is want of evidence to show that the plaintiff is in exclusive possession of the pond. The defendant has also obtained purchase certificate in respect of the pond and therefore the mere fact that the plaintiff has obtained purchase certificate does not take him anywhere. Being an unassessed land, the plaintiff could not have paid tax for the property. It is also pointed out by the learned counsel that even after the identity of the property was specifically disputed, there was no attempt from the side of the plaintiff to have the property identified by taking out a commission. It was the defendant, who, in order to establish his rights had taken out a commission and established that S.A.468/2000. 6 the water from the pond in question is infact being used by the defendant for irrigation purposes and the plaintiff had never used the water from the pond. Learned counsel also contended that the courts below were wrong in going into the question of title of the defendant. Learned counsel pointed out that the only issue was whether the plaintiff has proved his possession over the suit property. Learned counsel went on to contend that the findings of the courts below being based on evidence on record and being questions of fact, no interference is called for under Section 100 of the Code of Civil Procedure. 9. As already noticed, the dispute in this case relates to item No.1 pond identified by the commissioner in both his plans Exts.C1 and C3. Rival claims are set up by the parties. The suit is one for injunction simplicitor. As conceded by both sides, the only issue was regarding the possession of the property. The only thing to be determined is who was actually in possession of the pond as on the date of the suit. S.A.468/2000. 7 10. A perusal of Exts.C1 and C3 shows that the disputed pond is on the southern side of the property owned and possessed by the defendant and on the western side of the property of the plaintiff. Though there is some doubt created by Ext.B13 regarding the previous survey number of the pond, there is no dispute between the parties that item No.1 pond in Exts.C1 and C3 is the subject matter of the suit. 11. Both the commission reports show that the disputed pond is comprised in Sy. No.387/9. But it is interesting to note that even though it is claimed by both sides that the entire extent of land in Sy. No.387/9 takes in the pond, it does not appear to be so going by the commission report Ext.C4. It is seen that portion of a building extends to Sy. No.387/9. The commission report also shows that there is no boundary to separate the pond from the property lying on its northern side. It is significant to notice that the commission report shows that on the northern side of the defendant's property there is a road. Further north is the property owned by the defendant. S.A.468/2000. 8 Ext.C4 report also mentions that a pipe is laid across the road leading from the property of the defendant on the southern side to the northern side indicating that water is taken through that pipe for irrigation purpose. There is absolutely no evidence of any act of taking water by the plaintiff as per the commission report. 12. Considerable reliance is placed on Exts.A7, A8, A9 and A10. As already noticed Ext.A7 is the purchase certificate that was issued in a suo motu proceedings and that is dated 3.1.1986. The description of the property is shown as 'nilam'. Both the courts below have found that neither the description and the nature of the property nor the boundaries shown in Ext.A1 tally with the pond located by the Commissioner in Exts.C1 and C3 plans. 13. It is interesting to note that the defendant had obtained purchase certificate in respect of the same pond. So the purchase certificate cannot be taken as a criterion to ascertain as to who is in actual possession of the pond. S.A.468/2000. 9 14. One may refer to the documents now. In Ext.A4, schedule to item No.1, there is mention of three ponds. Ext.A4 is the partition deed in which the plaintiff obtained his separate share of property. In the property set apart to the plaintiff it is specifically mentioned that the pond is excluded. One of the contentions taken by the learned counsel for the appellant is that the commissioner has found that two of the ponds situate on the eastern side belongs to the plaintiff. If that be so, normally item No.1 also must belong to him since Ext.A1 makes mention of three ponds and logically it follows that the pond that is excluded in Ext.A4 is the pond involved in the suit. Later by Ext.A5 document, the other sharers have released their rights in favour of the plaintiff in respect of the pond. 15. Now one may refer to the oral evidence in the case. Plaintiff was examined as P.W.1. In his evidence he would say that in Ext.A4 partition deed, from the property set apart to him the pond stands specifically excluded. His case was that that was kept in common for all the sharers S.A.468/2000. 10 for irrigation purposes. But the recital in Ext.A5 belies his claim. Ext.A5 is dated 14.10.1985. What is stated in Ext.A5 is that by inadvertence the pond was excluded from the property set apart to the plaintiff and in order to make good that error the other sharers are releasing their rights over the pond. It could thus be seen that the recitals in Exts. A4 and A5 do not go together. In one portion of his cross examination he says that the pond involved in this suit is not the pond made mention of as item No.6 to Ext.A1. Thereafter he says that it is the same pond. He is unable to answer many of the vital questions regarding the pond. 16. There is nothing to indicate that the plaintiff has been taking water from the disputed pond. He has not adduced any independent evidence at all to show that he has been using water from the pond for irrigation or any other purpose. On the other hand there is some indication to show that the defendant is using the water from the pond. S.A.468/2000. 11 17. At any rate, there is nothing to show that the plaintiff is in exclusive possession of the pond involved in the suit. 18. The courts below have held that the documents relied on by the plaintiffs could not have taken in a pond. One of the reasons given by the courts below is that item No.1 to Ext.A4, which is set apart to the plaintiff is comprised in Sy. No.389/10 and does not take in any property in Sy. No.387/9. This may not be a ground to non-suit the plaintiff. Since the pond is excluded from the property set apart to the plaintiff, normally the survey number in which the pond is situated, would not have mentioned. 19. Whatever that be, both the courts below on an evaluation of the evidence had come to the conclusion that the plaintiff has not been able to establish that he has got exclusive right or possession over the disputed pond. The findings are based on an appreciation of the evidence in the case. S.A.468/2000. 12 20. As rightly pointed out by the learned counsel for the respondents before this court, the findings are findings of fact. Coming to the question of law formulated, one has to consider the effect of Ext.A7 purchase certificate. Both the courts below have considered in detail as to why Ext.A7 cannot be accepted as relating to the suit property. In fact that would amount to a decision on title. One cannot also omit to note that the defendant also had obtained purchase certificate in respect of the property, which shows that the purchase certificate by itself cannot be taken aid of to determine the issue involved in the suit. 21. There is no dispute regarding the identification of the properties. Both sides concede that item No.1 shown in Exts.C1 and C4 is the disputed pond. 22. The findings of the courts below are based on evidence on record, and there is nothing to show that the findings are either perverse or contrary to the evidence on record. No question of law, much less any substantial S.A.468/2000. 13 question of law, arises for consideration in this Second Appeal. The Second Appeal is without merits and it is only to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.