IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 244 of 1996(D) ------------------------------- AS.NO.51/1988 OF SUB COURT, CHERTHALA, OS.NO.467/1983 OF PRL.MUNSIFF COURT, CHERTHALA. .................... APPELLANTS/RESPONDENTS 3 TO 7 IN THE APPEAL AND PLAINTIFFS 4 TO 8 IN THE SUIT: ------------------------------------------------------------------------------------ 1. MYDHILI, D/O. VASU, RESIDING AT NOOTTUPARAVELIYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 2. ROHINI, D/O. VASU, RESIDING AT NOOTTUPARAVELIYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 3. THANKAMMA, D/O. VASU, RESIDING AT NOOTTUPARAVELIYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 4. MANIYAPPAN, S/O.VASU, RESIDING AT NOOTTUPARAVELIYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 5. DHANANJAYAN, S/O.VASU, RESIDING AT NOOTTUPARAVELIYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. BY ADV. MR.V.L.SHENOY. RESPONDENTS/APPELLANTS IN THE APPEAL AND DEFENDANTS IN THE SUIT: ------------------------------------------------------------------------------------------------------------------ 1. NARAYANAN, S/O. KESAVAN, RESIDING AT NEDUMCHIRAYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 2. PADMANABHAN, S/O. KESAVAN, NEDUMCHIRAYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. S.A. NO. 244/1996-D: 3. MADHAVAN, S/O. KESAVAN, NEDUMCHIRAYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 4. BHASKARAN, S/O.KESAVAN, NEDUMCHIRAYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. 5. ANANDAVALLY, D/O. KESAVAN, NEDUMCHIRAYIL, CHARAMANGALAM MURI, S.N. PURAM.P.O. R1 TO R5 BY ADVS. MR.P.V.SURENDRANATH, MR.V.M.SALIM, MR.R.AZAD BABU. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON 29/06/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 244 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this 29th the day of June, 2010. JUDGMENT The plaintiffs in O.S. 467 of 1983 before the Munsiff's court, Cherthala complains that unnecessary interference by the appellate court with the trial court judgment and decree has resulted in non-suiting them. 2. The suit was one for injunction. According to the plaintiffs, as per partition deed evidenced by Ext.A1 late Kunjan Vasu obtained the plaint schedule property. On the death of Kunjan Vasu, the property devolved on the plaintiffs. They planted cashew and other trees in the property. The defendants have no manner of right over the same. They own the property adjacent to the plaint schedule property. The plaintiffs understand that the defendants are attempting to trespass into the plaint schedule property and reduce a portion of it into their possession. That necessitated the suit. S.A. 244/1996. 2 3. The defendants resisted the suit. They pointed out that there was no bonafides in the claim at all. They did not dispute that property was set apart to Kunjan Vasu as per Ext.A1 partition deed. But according to them, he did not obtained possession of the same. They contended that in 1098 the defendants obtained the property from the tarawad of the plaintiffs as per Ext.B2 document. They obtained rights over 61 cents of land. The defendants have sold 50 cents and they are in occupation of the balance cents which is shown as the plaint schedule property. In fact the jenm rights over the 50 cents had been purchased by the mother of the defendants. After execution of Ext.B2, neither the plaintiffs nor their predecessors in interest have possessed or enjoyed the property. They contended that in fact they are cultivating the property and they had effected improvements in the property. The plaintiffs own property on the western side of the plaint schedule property. The property of the plaintiffs lies well demarcated from the plaint schedule property and it can therefore be easily seen that S.A. 244/1996. 3 the plaintiffs were never in possession of the property. They therefore prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and exhibits marked as Exts.A1 and A2 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B5 marked. Exts. C1, C2, C2(a) and C3 are the commission reports and plan. 5. On the basis of Ext.A1 partition deed, the trial court came to the conclusion that the plaintiffs have absolute rights over the property and decreed the suit as prayed for. The defendants went up in appeal as A.S. 51 of 1988 before Sub Court, Cherthala. The Sub Court, on a re- evaluation of the evidence, found that the trial court has erred in coming to the conclusion that the property was in the possession of the plaintiffs. The lower appellate court found that as contended by the defendants, 61 cents of property was leased out to them as per Ext.B2 and they were in possession of the plaint schedule property. S.A. 244/1996. 4 Accordingly, the judgment and decree of the trial court was set aside and the suit was dismissed. It is the said order that is assailed in this appeal. 6. In the Memorandum of Second Appeal, the following questions of law are seen formulated: “i) Where in a suit for injunction simplicitor the lower appellate court is justified in tracing title of the contesting defendants even though no issue was framed by the trial court as to the title of the disputed property? ii) Whether the lower appellate court is justified in not considering the evidence on record as to the physical possession of the plaint item with the plaintiffs on the basis of Exts.A1 and C1 to C3?” 7. Learned counsel appearing for the appellant pointed out that being a suit for injunction simplicitor, the only question was who was in possession of the property. Learned counsel drew the attention of this court to the fact that even according to the defendants, the plaint schedule property is taken in by Ext.A1 and if that be so, there is no S.A. 244/1996. 5 reason why a decree should have been denied to them. According to learned counsel, the trial court had appreciated the evidence in the proper perspective and had come to the right conclusion. The finding of the lower appellate court based on the measurements contained in the deeds is not justifiable. Accordingly, it is contended that the lower appellate court ought not to have interfered with the trial court judgment and decree. 8. Per contra, learned counsel appearing for the respondents in this appeal contended that the lower appellate court was justified in its approach and has entered the right finding. The trial court simply went on to hold that since Ext.A1 takes in plaint A schedule property, nothing else needs to be looked into. In fact according to learned counsel, the trial court has failed to appreciate the contentions put forward by the defendants and found an easy way out. Lower appellate court on the other hand has considered the measurements of the property as contained in the document and has on an independent evaluation of S.A. 244/1996. 6 the materials before it had come to the conclusion that the trial court judgment and decree cannot be sustained. It is also contended that being essentially a question of fact, no interference is called for in this Second Appeal. 9. The suit relates to 11 cents of property comprised in Sy. No.219/6B 6A4. There is no dispute regarding the fact that the plaint schedule property originally belonged to the tarawad of the plaintiffs. According to the plaintiffs, by virtue of Ext.A1 partition deed, 11 cents was set apart to Kunjan Vasu along with other properties. Consequent on the death of Kunjan Vasu, it was devolved on his legal heirs. The 11 cents is the plaint schedule property. The defendants on the other hand contended that 61 cents of land was leased out to the predecessor in interest of the defendants by the predecessor in interest of the plaintiffs as would be evidenced by Ext.B2. They obtained purchase certificate in respect of 50 cents and sold the 50 cents and the balance 11 cents is with them. S.A. 244/1996. 7 10. It will be useful to refer to the commission reports first. The commissioner has filed Exts.C1, C2 and C3 reports. Ext.C2(a) is the plan filed by the Commissioner. The green shaded portion shown in the plan is the 50 cents, which according to the commissioner has been claimed by the defendants. The red shaded portion on the western side of that plot is the plaint schedule property. 11. It would appear from a reading of the judgment of the trial court that the trial court was simply carried away by the fact that Ext.A1 takes in the plaint schedule property. It also formed an opinion that the defendants had got only 50 cents on lease from the predecessor in interest of the plaintiffs. The trial court says that the extent of property is not shown either in Ext.B1 or Ext.B2 produced by the defendants. It also came to the conclusion that the description of 61 cents in Ext.B1 was with ulterior motive. It was on that basis decree was granted to the plaintiffs. S.A. 244/1996. 8 12. Obviously the approach of the trial court is wrong. The lower appellate court on the other hand has taken pains to calculate the property obtained by the defendants as per measurements shown in Ext.B2. It converted the kole measurements into cents and came to the conclusion that more than 60 cents were leased out as per Ext.B2. This exercise undertaken by the lower appellate court was justified though the trial court did not feel like doing so. It was mainly this fact which resulted in an erroneous decision on the side of the trial court. 13. It may be noticed that even though as per Ext.A1, 11 cents was set apart to Kunjan Vasu, on a reading of the document as a whole, it can be seen that several of the items set apart to the sharers were outstanding with strangers. It is conceded by the plaintiffs that the other 50 cents which was the subject matter of the lease under Ext.B2 was set apart to another sharer under Ext.A1. The plaintiffs have no case that that sharer had obtained possession of 50 cents. It could not be said that by virtue of S.A. 244/1996. 9 Ext.A1 document, late Vasu had obtained possession of 11 cents. What he possessed was only the jenm right. The lower appellate court has noticed that if 50 cents alone is taken in Ext.B2, then the boundaries will not tally with the boundaries shown. If on the other hand it is 61 cents, the boundaries tally. Lower appellate court has considered in detail the measurements given in the documents and has come to the conclusion that 61 cents had been taken in by Ext.B2. Ultimately, it came to the conclusion that the plaint schedule property was also included in Ext.B2. 14. It will not be out of place here to refer to the commission report again. The commissioner, as already noticed, has identified and marked the disputed portion in red shade. The commissioner has categorically reported that only if the red and green shaded portions are taken together, the total extent would come to 61 cents. It is also significant to note that the commission report shows that on the western boundary of the red shaded portion there is a S.A. 244/1996. 10 row of trees. The commissioner has also observed that that portion of the property is well separated from the rest of the property owned by the plaintiffs on the western side. 15. It is therefore abundantly clear that the defendants obtained possession of the plaint schedule property as per Ext.B2 and it lies separated from the rest of the plaintiffs' property. There can be no doubt that the finding of the lower appellate court that the defendants are in possession of the plaint schedule property is justified. The trial court failed to appreciate this crucial aspect and that resulted in an erroneous decree. 16. As rightly pointed out by the learned counsel for the respondents, the real question involved is whether Ext.B2 takes in the disputed property and on an appreciation of the evidence the lower appellate court found that Ext.B2 takes in 61 cents including both the green and red shaded portion shown in the commissioner's plan. The finding is S.A. 244/1996. 11 essentially a finding on fact based on evidence, no substantial question of law arises for consideration in this Second Appeal. The Second Appeal is without merits and it dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.