IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 SA.No. 621 of 2002() ---------------------------- AS.184/1996 of DISTRICT COURT, PALAKKAD OS.74/1994 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S): APPELLANT/PLAINTIFF: ---------------------------------------------------------- VALLI AMMAL, W/O. CHANDRAN, RESIDING AT CHERAMANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENT(S): 2ND RESPONDENT & LRS OF 1ST RESPONDENT -------------------------- 2ND DEFENDANT & LRS OF IST DEFENDANT 1. ANNAMMA, W/O. VELAYUDHAN. 2. RADHAKRISHNAN, S/O. VELAYUDHAN. 3. SIVAN, S/O. VELAYUDHAN. 4. ARUNACHALAM, S/O. VELAYUDHAN. 5. NARAYANAN, S/O. VELAYUDHAN. 6. PADMINI, D/O. VELAYUDHAN. 7. RAJITHA, D/O. VELAYUDHAN. RESPONDENTS 1 & 5 ARE RESIDING AT ANDI THARA, CHERAMANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DIST. RESPONDENTS 2,3,4,6 & 7 ARE RESIDING AT KALMETTU PALAYAM, PONGALLUR, PALADAM, THIRUPUR. (THE 1ST DEFENDANT DIED AFTER JUDGEMENT OF LOWER APPELLATE COURT AND RESPONDENTS 2 TO 7 ARE HIS LEGAL HEIRS.) ADV. SRI.T.M.CHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON IA. NO.2201/2008 IN S.A. NO.621/2002 DISMISSED 03/12/2010 SD/- HARUN- UL-RASHID, JUDGE TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.621 Of 2002 ---------------------- Dated this the 3rd day of December, 2010. J U D G M E N T The following substantial questions of law are formulated in the second appeal. i) Whether the courts below were justified in law in not decreeing the suit for permanent prohibitory injunction when the evidence reveals that the plaintiff has possessory title over 4 cents and proprietory title over 3 cents apart from the undisputed possession over the whole 7 cents of the plaint schedule property? ii) Have not the courts below erred in not relying on the agreement for sale executed on stamp paper in respect of 4 cents of property when the same can be admitted as evidence of collateral facts or purposes like character of possession as has been held in Mohammed Kunju Isha Beevi's case (1993 (2) KLT 631)? iii) Whether the courts below were correct in law in not granting a decree for permanent prohibitory injunction when the dispute relates only to the southern boundary of the property covered by Ext.A3 sale deed and the title to the property on the north is inconsequential for the purpose of the suit? iv) Have not the courts below erred in not noticing the fact that the plaintiff and her husband are admittedly in open and uninterrupted possession of their residential compound for more than 18 years and have necessarily therefore perfected their title by adverse possession and limitation? S.A.No.621 Of 2002 ::2:: 2. The plaintiff in O.S.No.74 of 1994 on the file of the Munsiff Court, Alathur is the appellant. The appeal is directed against the decree and judgment in A.S.No.184 of 1996 on the file of the District Court, Palakkad. Suit was filed for injunction. The plaint schedule property is 7 cents of land in resurvey No.24/B8. The plaintiff claimed title and possession over the plaint schedule property on the basis of Ext.A1 settlement deed executed by the husband of the plaintiff in her favour. It is also the case of the plaintiff that the remaining 4 cents of property was purchased by her husband from one Arumughan in 1975. The plaintiff and her family are residing in the house located in the plaint schedule property. Plaintiff's case is that the defendants have no manner of right over the plaint schedule property, that they are making attempts to trespass over the property and to reduce a portion of the property into their possession and therefore the suit was filed for a permanent injunction restraining the defendants from trespassing into the plaint schedule property, causing mischief therein and also causing hindrance from constructing the southern fence and not to interfere with the peaceful possession and enjoyment of the S.A.No.621 Of 2002 ::3:: properties. The defendants denied the plaint averments and prayed for dismissal of the suit. 3. The commissioner deputed at the instance of the plaintiff filed Exts.C1 report and C2 plan. The commissioner reported that the extent of property claimed by the plaintiff on measurement is 6.5 cents. 4. Plaintiff claims title and possession over the plaint schedule property on the basis of Ext.A1 settlement deed. In Ext.A1 settlement deed it is stated that out of the 7 cents of property Chandran, husband of the plaintiff, purchased three cents as per sale deed No.1258/76 and remaining 4 cents was purchased by him from one Arumughan in 1975. The plaintiff also produced the sale deed No.1258/76 in the name of her husband in respect of three cents in R.S.No.24/B8. Ext.A3 is the document. The trial court as well as the appellate court found that there is no document to show that Arumughan and Velayudhan had any right over the said 4 cents and that the plaintiff had failed to produce any sale deed to show that her husband Chandran purchased 4 cents from Arumughan and Velayudhan. S.A.No.621 Of 2002 ::4:: 5. The defendants in the suit are in possession of the property on the southern side. They are residing in the said property. The dispute between the parties is in fact a boundary dispute. The trial court observed that the evidence of PW1 reveals that there are three tamarind trees, one teak tree and cluster of bamboos standing on the boundary. Plaintiff's case is that tamarind trees are standing at the southern part of her house and the northern part of the house of the defendants. Defendants' case is that the tamarind trees are standing in their property near the northern fence. The trial court found that the plaintiffs cannot claim any right over the said trees. After appreciating the evidence on record the trial court held that the suit was filed just after 7 months of execution of Ext.A1 settlement deed, that the suit is a malafide one and that Ext.A1 gift deed itself was executed for the purpose of claiming right over the 4 cents of land adjacent to the registered land knowing fully well that there is no assignment deed executed and registered in favour of PW1 or her husband. 6. The appellate court also appreciated the evidence in the same line. The appellate court observed that the plaintiff has S.A.No.621 Of 2002 ::5:: not produced any document to show that Chandran purchased property from Arumughan and Velayudhan and that in Ext.A4 deed nothing is mentioned about any registered document executed by Arumughan and Velayudhan. It is not disputed that the plaintiff's husband had title and possession over 3 cents of land in R.S.No.24/B8 as per Ext.A3 sale deed. The remaining extent of 3.5 cents of land as found by the commissioner is an unregistered land. The plaintiff is claiming right over that property. On the basis of the said finding the lower appellate court agreed with the findings of the trial court and held that by virtue of Ext.A1 settlement deed the plaintiff can claim title and possession over three cents and not for remaining 4 cents. 7. Plaintiff claims title and possession over the plaint schedule property on the basis of Ext.A1 settlement deed. The courts below held that the plaintiff's husband has no title and possession over 4 cents of land out of 7 cents scheduled in the plaint and therefore the plaintiff cannot claim title and possession over entire 7 cents of property on the basis of Ext.A1 deed. After recording the fact that the plaintiff cannot claim title and possession over the entire plaint schedule property on the basis S.A.No.621 Of 2002 ::6:: of Ext.A1 settlement deed no relief was extended to the plaintiff. The suit was dismissed and the same was confirmed in appeal. It is true that the plaintiff was not able to prove that he has got title over 7 cents of land as claimed in the plaint. It is a fact that he has got title in respect of three cents of land. Even if the plaintiff is unable to prove title in respect of 7 cents of land the courts below should have directed enquiry in order to find as to whether he has got possession in respect of the remaining extent. Suit is for injunction simplicitor. The title deeds can be relied on by the parties in support of their case for possession. The question to be decided is whether the plaintiff is entitled to a decree of injunction on the basis of the facts and evidence on record. If the plaintiff is able to prove that she is in possession of the property or a portion of the property it is for the courts to mould relief accordingly and grant injunction for the property in possession of the plaintiff. In this case, both courts enquired about the title of the plaintiff in respect of the entire property. Both courts found that the plaintiff has got title only for 3 cents of land. The courts did not enquire as to whether the plaintiff is in possession of 6.5 cents of land as reported by the S.A.No.621 Of 2002 ::7:: commissioner or any lesser extent. If the plaintiff is able to prove that he is in possession of certain extent of land which may be an extent lesser than what is scheduled in the plaint the court should consider the question of granting relief to the extent in actual possession. In the circumstances the course open to this Court is to remand the case for fresh disposal. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The trial court is directed to consider and dispose of the suit afresh in accordance with law and on the basis of the observations made above. For resolving the dispute between the parties either party can apply for deputing a commissioner with the assistance of a taluk surveyor to measure and demarcate the plaint schedule property and the property of the defendants. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-