IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 SA.No. 285 of 2000(A) --------------------- AS.15/1997 of SUB COURT, HOSDURG OS.314/1995 of MUNSIFF COURT, HOSDURG .................... APPELLANT(S): --------------------- CHEEMENI ESTATE, A UNIT OF THE PLANTATION CORPORATION OF KERALA LTD., REPRESENTED BY ITS ASSISTANT MANAGER. BY ADV. SRI.JOSEPH MARKOSE, SENIOR ADVOCATE SRI.A.KUMAR RESPONDENT(S): ------------------------ 1. NARAYANI, W/O CHERIA RAMAN, RESIDING AT CHEEMENI VILLAGE, HOSDURG TALUK, P.O CHEEMENI, KASARAGOD DISTRICT. 2. LAKSHMI, RESIDING AT CHEEMENI VILLAGE, HOSDURG TALUK, P.O CHEEMENI, KASARAGOD DISTRICT. 3. RAMCHANDER, RESIDING AT CHEEMENI VILLAGE, HOSDURG TALUK, P.O CHEEMENI, KASARAGOD DISTRICT. ADV. SRI.KALEESWARAM RAJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.285 OF 2000 -------------------------------- Dated this the 29th day of October 2010 JUDGMENT Plaintiff in a suit for injunction has filed this appeal. Trial court granted a decree in his favour, but, in appeal preferred by the defendants, the lower appellate court reversed the decree and dismissed the suit. Challenging the decision of the lower appellate court as aforesaid, plaintiff has preferred this appeal. 2. Plaintiff is a unit of the Plantation Corporation of Kerala Ltd. Suit claim is in respect of a portion of the property assigned in favour of the Corporation by the Government, which was described in the plaint as having an extent of 17 ½ cents when the suit was instituted, but, later, amended and reduced to 13 cents after local inspection of the suit property and preparation of a plan by an advocate commissioner. The defendants made attempts to trespass upon the suit property was the case canvassed to claim the discretional relief of injunction against them. Resisting the suit, the defendants claiming that they had been issued a purchase certificate over 10 cents of land by the Land Tribunal recognizing the tenancy over such land contended that they are in possession and enjoyment of more extent of land at the site. Description of the plaint schedule was disputed by the defendants contending that the suit has been filed to annex the S.A No.285 OF 2000 - 2 - property in their possession. The trial court, on the materials placed, which consisted of PW1 and PW2 and Ext.A1 to Ext.A4 series for the plaintiff, DW1 and Ext.B1 for the defendants and Ext.C1 to Ext.C4 reports and plan prepared by an advocate commissioner, found the case of the plaintiff more probable and acceptable, and accordingly, granted the plaintiff a decree of injunction against the defendants restraining them from interfering with the possession and enjoyment of the plaintiff over the suit property. In the appeal preferred by the defendants, the lower appellate court, after reappreciating the materials tendered in the case, coming to the conclusion that the plaintiff has failed to identify and establish its possession over the suit property as described in the plaint reversed the decree of the trial court and dismissed the suit. 3. In the appeal preferred by the plaintiff, challenging the decision of the lower appellate court as stated above, notice was ordered to the respondents and thereupon they have entered appearance. Though the appeal had been filed as early as on 2000, its admissibility with reference to the question whether any substantial question of law is involved as covered by sub Section (1) of Section 100 of the Code has not been considered so far. So much so, the admissibility of the appeal was heard. The S.A No.285 OF 2000 - 3 - questions formulated in the memorandum of appeal, it is seen, are not based on any question of law, but, on the findings entered by the lower appellate court over disputed facts involved in the case. Perusing the judgments of both the courts below, it is seen that even the trial court, on the materials, found that the documents tendered by the plaintiff to sustain the claim of injunction canvassed in the suit are hardly sufficient to identify the suit property. However, it proceeded to examine the claim of injunction of the plaintiff with reference to the commission report and plans whereunder the advocate commissioner had located the property under the possession of the defendants and rest of the property lying to its north and also east as forming part of the property of the plaintiff. Considering the oral evidence tendered in the case with reference to the report and plan of the commissioner, the trial court formed an opinion that the case canvassed by the plaintiff is more probable and acceptable and in that view of the matter, the decree of injunction was granted. The trial court has expressed the view that in the facts involved in the case, 'probabilities can be gathered from the testimony of the parties as also from the reports and plans of the Commissioner'. Needless to point out, when a decree of injunction is applied for in respect of an immovable property, such a discretionary relief can S.A No.285 OF 2000 - 4 - be granted only on proper identification of that property, and, if not, any decree passed on incomplete data is likely to create more confusion and further work out undesirable consequences to the parties. So much so, where the trial court found that the plaintiff failed to establish the identity of the property by basic documents especially where the claim of possession was based on title, assignment of the property by the Government, there was no question of granting any discretionary relief of injunction in favour of the plaintiff. On what basis, the advocate commissioner deputed by the court identified the suit property also appears to be a mystery. A large extent of property in the survey number relating to the plaint property ie, 313. 60 acres, was obtained by the plaintiff Corporation as part of 1268.74 acres handed over to it by the Government. Plaint property at the time of institution of the suit was shown as having 17 ½ cents, but, later, it was amended on the basis of the commission report reducing it to 13 cents for the reason that in Ext.B1 purchase certificate issued in favour of the defendants, the eastern boundary is shown as a public road. On mere surmise a description of the property was included in the plaint to seek the relief of injunction. So, whether or not the defendants had established the contention raised by them to resist the suit claim S.A No.285 OF 2000 - 5 - for injunction, it was a case where the plaintiffs failed to prove the identity of the suit property over which the relief of injunction was canvassed. The lower appellate court was fully justified in reversing the decree of injunction granted by the trial court where the property in respect of which that relief was claimed remained unidentified. The reports and plan prepared by the advocate commissioner, it is seen, no way assist the plaintiff to identify or establish its possession over the suit property described in the plaint. The appeal does not involve any question of law leave alone any substantial question of law. Appeal is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv