IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 SA.No. 59 of 1996(F) ---------------------------- AS.28/1992 of PRINCIPAL SUB COURT, N. PARAVUR OS.441/1987 of MUNSIFF COURT, PARAVUR .................... APPELLANT(S): RESPONDENT: PLAINTIFF: ------------------------------------------------------------ MARY, W/O.VARGHESE, KATTIPARAMBIL, VARAPUZHA VILLAGE, EDAMBADAM MURI. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR RESPONDENT(S): APPELLANTS:DEFENDANTS: ------------------------------------------------------------------- 1. ANTONY, S/O.AUGUSTHY, RESIDING AT NADUVILEPARAMBIL, EDAMPADAM MURI, VARAPUZHA PAKUTHI. 2. AUGUSTINE, S/O.ANTHAPPAN, IN DO. DO. (DIED) 3. JOSEPH, S/O. AUGUSTINE, IN DO. DO. 4. GEORGE, S/O. AUGUSTINE, IN DO. DO. ADDL.5. JOSEPH, S/O. AUGUSTY, RESIDING AT NADUVILEPARAMBIL, EDAMPADAM MURI, VARAPUZHA PAKUTHI. ADDL.6. THOMAS, S/O. DO. IN DO. DO. ADDL.7. CLEETUS, S/O. DO. IN DO. DO. ADDL.8. CHARLEY, S/O. DO. IN DO.DO. ADDL. 9. MARIYILI, W/O.RAYILERANAS BAVE, VELIPARAMBIL, CHERANALLOR P.O., EDAPPALLY, COCHIN-34. SA.No. 59 of 1996(F) -2- ADDL.10. VERONI, WIFE OF AUGUSTHY, RESIDING IN DO. DO. NADUVILEPARAMBIL, EDAMPADAM MURI, VARAPUZHA PAKUTHI. (ADDITIONAL RESPONDENTS ARE IMPLEADED AS PER ORDER DATED 27.2.1997 IN CMP NO.747/1996.) R1, R3, R4 BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE R5 TO R10 BY ADV.SRI.K.JAJU BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.59 of 1996 ---------------------------------------------- Dated, this the 16th day of July, 2009 J U D G M E N T Appellant is the plaintiff in the suit. The suit is one seeking permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property and disturbing the peaceful possession of the plaintiff. Briefly put the case of the appellant/plaintiff was as follows; 2. The plaint schedule property was purchased by the plaintiff on 25.4.1975 and she was in possession of the property. It is a water logged area and half of that property is reclaimed by her and planted coconut trees in the area so reclaimed. She also reclaimed certain portion of the puramboke river which lies on the southern part of the plaint schedule property and it is in her possession. It is further alleged that the property on the western side of the plaint schedule property is the panchayat road and that the property adjacent to the panchayat road is in the possession of the respondents. It is also stated that there is a compound wall S.A.No.59/1996 -2- on the eastern side of the respondents' property and there are fences on the northern and western sides. It is stated that there is an attempted trespass in January, 1987. There was a complaint before the R.D.O and then the suit was filed. 2. The respondents contended that the description of the boundaries is not correct, that the previous owner of the plaint schedule property had no land near to the respondents' property, the measurement shown in the sale deed will start from the middle of the river and the plaint schedule property will not touch any portion of the defendants property, that the plaintiff has unauthorizedly reclaimed portion of the puramboke river, that the defendants claim one row of coconut trees standing on the eastern side of the pathway, that they are using the bank of the river lying on the eastern portion of their land for the purpose of getting bricks and sands etc. 3. Learned Munsiff, on evidence consisting of oral testimony of Pw1 to Pw3, Dw1 to Dw5 and documentary evidence Exts.A1 to A4, B1, C1, C1(a) and X1 decreed the suit. Learned Munsiff found that going by the recitals of S.A.No.59/1996 -3- Ext.B1 it is clear that the row of coconut trees on the eastern side of the panchayat road does not belong to the defendants. Learned Munisff also took note of the stand of the plaintiff that the plaintiff has no right over one row coconut trees standing on the eastern side of panchayat road lying west to the plaint schedule property. Reliance was placed on X1 which was a report submitted to the Tahsildar by the surveyor. The trial court also found that the case of the respondents that they have a right to use river water on the eastern side of the panchayat road is not to be sustained. 4. The first appellate court in appeal by the respondents over turned the decree of the trial court and dismissed the suit. It is against the same the second appeal is filed. 5. I heard Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellant and also the learned counsel appearing on behalf of the respondents. 6. The first appellate court has noted various discrepancies in the matter of identification of the plaint schedule property. He notes that the deposition of Dw5 the S.A.No.59/1996 -4- Commissioner has stated that he has identified the property and prepared the sketch on the basis of the instruction given by the appellant and that he has not seen any title deed in respect of the plaint schedule property. Dw1 is the Village Officer who has stated that there is no record in respect of 9½ cents assigned in the name of the appellant's predecessor. It is also stated that though in Ext.A1 sale deed under which the appellant claims right it is shown as 7 ½ cents, as per side measurements given in the title deed the property is only having an extent of 5 cents. It is also stated that there is no sketch regarding 9½ cents and therefore the property cannot be identified. It is found that the measurements in Ext.A1 starts from south eastern corner towards the northern side and then towards the western side and from there towards eastern side and it is also stated that the property is lying in a triangular shape. It is found that as per Ext.A1 the starting point of the property on the south eastern corner will be extending towards the eastern side than the corner on the south western side. The dichotomy between the same and C1 sketch is noted and it is found that C1 (a) sketch cannot be S.A.No.59/1996 -5- said to be the exact sketch of the plaint schedule property. Ext.A4 is the prior title deed of Ext.A1. As per the same it is dry land. The first appellate court notes the contradiction wherein the plaint schedule property is however shown as water logged area on the basis of Ext.A1. As per Ext.A1 the northern boundary of the property of the plaintiff is herself. However, as per plaint schedule, the property is shown as church. As per Ext.A1 the western property is the property of the appellant herself but as per the schedule it is a panchayat road. Thereafter, the Ist appellate court proceeds to take note of the deposition of the plaintiff's witness in cross examination to the effect that the appellant is not having right over a row coconut trees in the panchayat road which is on the eastern side. On the basis of this admission the Ist appellate court has proceeded to find that it is established that the appellant is having no right over a row of coconut trees on the eastern side of the panchayat road. Thereafter, after referring to the deposition of Dw1 that he is using the river banks for washing, bathing and that he is having two country boats and that the banks of the river in front of the S.A.No.59/1996 -6- properties is absolutely necessary for his enjoyment and after referring to Section 7 of the Indian Easement Act, it is found that the defendants being the riparian owner has got right to obstruct reclamation of the river by the plaintiff as it would affect their enjoyment of the natural water of the stream as a riparian owner. The appeal was allowed. 7. The substantial questions of law framed in the memorandum of appeal which are pressed before me by the learned senior counsel for the appellant are questions B and C. They are as under: “B. Has not the lower appellate court acted illegally in ignoring the documentary evidence in the case which clearly establishes that the property identified by the Commissioner is the property belonging to the plaintiff? C. Has not the lower appellate court fallen into an error of law in thinking that a person who does not own property on the bank (abutting a water body) of the river is a riparian owner? 8. The learned senior counsel for the appellant would submit that the Ist appellate court has clearly acted without basis. The finding on the basis of the statement by a witness for the appellant that the plaintiff does not claim any S.A.No.59/1996 -7- over row coconut trees in the panchayat road which is on the eastern side is established and therefore, that property belong to the respondents is not correct he points out. He also submits that on the said basis the right of riparian owner with reference to Section 7 of the Indian Easements Act are all uncalled for. It is his case that the appellant had purchased the plaint schedule property under Ext.A1 and as alleged reclaimed half of the same and two cents from the river puramboke. He further contends that respondents cannot claim as riparian owner on the strength of their right in respect of the property lying to the west of the panchayat road having regard to the lie of the properties and including the puramboke thodu. In other words, right emanate only if the respondents establish title as they alleged over that portion of the property lying on the immediate west of the appellant's property which is the area over which there is a row of coconut trees and he would submit that the mere admission of the plaintiff's witness could not have enabled the first appellate court to proceed to find that the respondents have title over the property. He would further submit that S.A.No.59/1996 -8- actually it is plaintiff's case that the plaintiff had surrendered some land for the purpose of the road on the western side of the plaint schedule property. The respondents have absolutely no right over the property, he submits. He would further submit that it is necessary that reclamation is made of the river puramboke and if the plaintiff does reclamation no prejudice is caused to the respondents. 9. Per contra, learned counsel appearing on behalf of the respondents would contend that no case has been made out for interference in second appeal. He would submit that the plaintiff has clearly failed to identify the property. Being a suit for injunction unless the plaintiff is in a position to establish possession for which plaintiff must establish identity of the property, it is not open to the appellant to claim the relief which is claimed and the first appellate court was justified in allowing the appeal. 10. As far as the finding of the first appellate court that the appellant has not succeeded in establishing the identity of the plaint schedule property, I would think that it may not be open for me to interfere with that finding in S.A.No.59/1996 -9- second appeal. Essentially it is a finding of fact. I do not think that any of the grounds on which a finding of fact can be interfered with in second appeal has been shown to exist by the appellant. Various discrepancies were discussed in the judgment of the first appellate court. 11. No doubt, learned senior counsel would submit that there was absolutely no basis for the first appellate court to have found that the respondents can claim as riparian owners or respondents have right over the property. 12. After having found that the appellant has failed to establish the identity of the property I would think that it is not necessary for the first appellate court to proceed to consider the title of the respondents over the portion of the property lying on the immediate eastern side of the panchayat road. The trial court came to the finding that the respondents have no title over the said portion on the basis of the recital in Ext.A1 title deed of the respondents to the effect that the right which the respondents acquire under the said document was after providing for an extent of 1.375 cents S.A.No.59/1996 -10- surrendered for the road. No doubt, it is true that the plaintiff's witness stated that the plaintiff is not claiming any right over the said portion. But, admissions would not confer title. I would think that it was not necessary for the court to go into the title of the parties over the said portion and the appeal could have been disposed of on the basis of the failure of the plaintiff to establish the identity of the plaint schedule property and the discrepancies. The suit is only for injunction and what was necessary was to find whether the plaintiff was in possession of the plaint schedule property. In view of the failure to establish the identity of the property, she must also be treated as failed to establish possession of the same. In such circumstances, I find that it was not necessary for the first appellate court to have proceeded to hold that it is established that the respondents have title over a portion over which the coconut trees stood or to make the observations relating to the rights of riparian owner. In view of the finding that the appellant has failed to establish possession of plaint schedule property the suit filed by the appellant is only to be dismissed. The second S.A.No.59/1996 -11- appeal is dismissed. The parties are directed to bear their respective costs. (K.M.JOSEPH) JUDGE. MS