IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 SA.No. 928 of 1996() ---------------------------- AS.93/1992 of II ADDL. DISTRICT COURT, THRISSUR OS.2872/1987 of I ADDL. MUNSIFF COURT, THRISSUR .................... APPELLANTS (APPELLANTS/PLAINTIFFS 2 TO 6): ------------------------------------------------------------------------- 1. JOSE, S/O.ATTOKKARAN ANTHONY. 2. JESSY, W/O.KOLENGADAN JOSE. 3. KLARA, W/O.THEKKATHU FRANCIS. 4. SOPHY, D/O.JOSE. 5. TONY, S/O. JOSE. APPELANTS ARE RESIDING AT ATTORU DESOM, POTTORU VILLAGE, THRISSUR TALUK. BY ADV. SRI.C.P.DAMODARAN NAYAR, SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SRI.M.HARISHARMA, SRI.JOJI VARGHESE. RESPONDENTS(RESPONDENTS/DEFENDANTS): ---------------------------------------------------------------------- *1. MANI, S/O.ATTOKKARAN OUSEPH, ATTORU DESOM, POTTORU VILLAGE, THRISSUR TALUK. *(DIED). 2. ANTHONY, S/O.ATTOKKARAN OUSEPH, ATTORU DESOM, POTTORU VILLAGE, THRISSUR TALUK. 3. KUNJIPPAVU, S/O.ATTOKKARAN ANTHONY, PAMBURU DESOM, POTTORU VILLAGE, THRISSUR TALUK. SA.No. 928 of 1996 *SUPPLEMENTAL R4 TO R8 IMPLEADED SUPPL. R4: ANNIE, W/O.MANI, ATTOKKARAN HOUSE, ATTORE, P.O. KUTTOOR. SUPPL. R5: JOSE, S/O.MANI, ATTOKKARAN HOUSE, -DO- -DO-. SUPPL. R6: VALS, D/O.MANI, -DO- -DO-. SUPPL. R7: LIMSY, D/O. MANI, -DO- -DO-. SUPPL. R8: DAISY, D/O. MANI, -DO- -DO-. * SUPPLEMENTAL RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LR'S OF DECEASED 1ST RESPONDENT, VIDE ORDER DATED 10/01/2007 IN I.A.2316/2006. R3 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, R4 TO R6 BY SRI.G.SREEKUMAR (CHELUR). BY ADV. P.C. CHACKO. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 928 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010. JUDGMENT The plaintiffs, who have been non-suited by the courts below, are the appellants. 2. The suit was one for injunction. The plaintiffs relied on Exts. A1 and A2 for the purpose of proving title to the suit property. Their short case was that the defendants are trespassing into the property and cutting down the trees standing in the property. The defendants resisted the suit by pointing out that the description of the property and the boundaries shown in the plaint are incorrect and the plaintiffs infact had no title to the property. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A3(c) from the side of the plaintiffs. The defendants had D.W.1 S.A.928/1996. 2 examined and Exts.B1 and B2 marked. Ext.C1 is the commission report. 4. The trial court on a consideration of the evidence found that the plaintiffs have miserably failed to establish both title and possession over the suit property and dismissed the suit. In appeal the appellate court found that being a suit for injunction simplicitor, the trial court was not expected to look into title and the only issue was whether the plaintiffs have been able to prove their possession over the suit property as on the date of the suit. After an elaborate consideration of the evidence in the case, the appellate court came to the conclusion that the trial court was justified in holding that the plaintiffs have no possession also. Therefore the decree was confirmed. 5. In the Second Appeal the following questions of law are seen raised for consideration: “1. In a suit for injunction, when the defendants filed a written statement denying the plaint averments regarding possession of the suit property, is it necessary for the plaintiffs to amend S.A.928/1996. 3 the suit, so as to include a prayer for declaration of title and possession. 2. Whether the lower appellate court was right in proceeding on the basis that the plaintiffs have to amend the suit and seek a decree for declaration of title and possession, and was not the trial court wrong in entering a finding on the question of title, without even an issue being framed regarding the same. 3. Is not the question of title irrelevant in a suit for injunction? 4. Are not the judgments of the courts below vitiated on account of non-consideration of the matters in controversy and also by reason of misreading of the pleadings and the evidence on record.” 6. At the outset itself, it may be noticed that none of the questions raised arise for consideration. The suit was one for injunction simplicitor, and as rightly noticed by the lower appellate court, the only question was regarding possession. S.A.928/1996. 4 7. Plaintiffs have produced Exts.A1 and A2 to prove title to the suit property. It is interesting to note that the defendants had a case that the assignor of the plaintiffs, i.e., the vendor under Exts.A1 and A2 had no title to the suit property and therefore he could not confer any title to the plaintiffs also. P.W.1 was examined on behalf of the plaintiffs to prove their possession. To say the least, his evidence is far from satisfactory. A commission was taken out to ascertain certain aspects. The commissioner has merely reported what he happened to see at the spot. There was no measurement of the properties and there was also no attempt to identify the boundary of the property. The commissioner has reported that the plaint schedule property as shown in the plaint does not lie within well demarcated boundaries and the adjoining properties are owned by defendants and others. A reading of the evidence of P.W.1 shows that he has absolutely no idea about the property at all. He is unable to say whether the plaintiffs' property was included in the document, on the basis of S.A.928/1996. 5 which they claimed title to the property. He has only to say that item No.2 is lying contiguous to item No.1. 8. It must be noticed that the plaintiffs have a case that when the defendants committed mischievous acts in the property of the plaintiffs, they preferred petition before the police as well as before the Magistrate court concerned. For reasons best known to them, they chose not to produce those petitions. The tax receipts produced did not much advance their case. The lower appellate court has also observed that the plaintiffs were very reluctant to produce their prior document of title. 9. The lower appellate court has come to the conclusion that it is doubtful whether items 1 and 2 exist at all. Whatever that be, there is absolutely no evidence at all that the property lie within well defined boundary and that the plaintiffs have been exercising acts of exclusive possession over the same. It is these facts, which persuaded both the courts below to reject the claim of the plaintiffs. S.A.928/1996. 6 No substantial questions of law arise for consideration in this Second Appeal. The findings are essentially based on facts and evidence in the case. There are no grounds to hold that the judgments and decrees are either perverse or illegal. The Second Appeal is without any merits. Accordingly it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.