IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 SA.No. 345 of 2000(G) --------------------- AS.45/1997 of SUB COURT, HOSDRUG OS.445/1995 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S)/RESPONDENTS IN A.S./DEFENDANTS IN O.S.: -------------- 1. KARIKKA KUZHIYIL MADHAVI, AGED 56 YEARS, D/O. (LATE) KOCHPENNU, RESIDING AT PARAMBA IN MALOM VILLAGE. 2. SURESH, AGED 29 YEARS, S/O. KARIKKA KUZHIYIL MADHAVI, RESIDING AT PARAMBA IN MALOM VILLAGE, HOSDURG TALUK. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S)/APPELLANT IN A.S./PLAINTIFF IN O.S.: --------------- P.S.SANTHA KUMARI, AGED 62 YEARS, D/O. KOTTAMALA PUTHAN VEETIL, SANKARAN NAIR ( LATE), RESIDING AT SHAKER'S FARM AT VALLIKKADAVU, IN MALOM VILLAGE, HOSDURG TALUK. ADV. SRI.M.THAMBAN SRI.K.RAJEEVAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT. Neither the appellants nor the counsel is present. No representation. Dismissed for default. 14/12/2010. P.BHAVADASAN, JUDGE. ORDER ON CMP NO.2101/2000 IN S.A. NO.345/2000 DISMISED 14/12/2010 SD/- P.BHAVADASAN, JUDGE. P.BHAVADASAN, J. ------------------------------------- SA No.345 of 2000-G ------------------------------------- Dated this the 17th day of August 2011 Judgment The defendants in OS No.445/95 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, she obtained the plaint schedule property as per Ext.A1 purchase certificate dated 12.07.1989. Eversince then, she has been in absolute possession of the suit property and has effected improvements in the same. The property is bound on the south by a chal and on the western side is the property of one P.K.Vasumathi. It is claimed that an extent of 3.57 acres comprised in RS No.189 of Malom village which too belongs to the plaintiff, lies on the northern side of the plaint schedule property. It is asserted in the plaint that both the plaint schedule property and the said 3.57 acres lie as a compact plot. The complaint in the plaint is that the defendants were trying to trespass into her property and SA 345/00 2 therefore, the suit was laid. 3. The defendants resisted the suit. They denied the title of the plaintiff and contended that she had never been in possession of the suit property. According to them, the plaintiff, at no point of time, had any property in Malom village. The suit property belonged to one A.C.Kunhiraman Nambiar on jenm right. From him, it was taken on kuzhikanam right by the father of the first defendant, namely Narayanan, in 1955. Narayanan obtained jenm right from the Land Tribunal as per Ext.X1 purchase certificate. Later on, out of the three acres so obtained, he gifted one acre to the first defendant in the year 1975. Rest of the property was partitioned among his legal heirs. B schedule in the said partition deed was allotted to the first defendant. The suit property is included in 1.09 acres comprised in RS No.588/2 of West Eleri village and the first defendant and her deceased father had been doing paddy cultivation in the said property. Pointing out that the attempt of the plaintiff is to usurp the property belonging to SA 345/00 3 the first defendant, they prayed for dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 and B2 marked. Exts.C1 and C2 are the commissioner's report and plan and Exts.X1 and X2 are third party exhibits. 5. The trial court, on a consideration of the materials before it, came to the conclusion that the plaintiff has not been successful in establishing the case put forward by her and accordingly dismissed the suit. The plaintiff carried the matter in appeal as AS No.45/97 before the Munsiff's Court, Hosdurg. The lower appellate court reversed the judgment and decree of the trial court and decreed the suit. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : SA 345/00 4 (a) whether the appellate court was justified in not considering the sound reasoning of the trial court that in a suit for injunction, the plaintiff must prove his possession and any flaw or lacuna in the defendant's case cannot be the ground for decreeing the suit. (b) whether the appellate court was justified in accepting A1 purchase certificate of 1989 when the very same Land Tribunal had issued a purchase certificate covering the same property in 1972 vide Ext.X1. This certificate has not been cancelled or revoked till date. (c) whether the appellate court could have decreed the suit on the basis of Ext.A1 when admittedly the description of the property in Ext.A1 was entirely different from the description of the suit property. (d) whether the appellate court was justified in ignoring the concrete finding of the commission report and the trial court that the suit property and the adjacent property admittedly belonged to the SA 345/00 5 plaintiff were at different levels demarcated by a mud ridge and having totally different cultivation therein ? (e) was the appellate court entitled to invoke the doctrine of adverse inference in respect of a document which will not refer to the suit property and was irrelevant in the issue raised ? (f) was the appellate court entitled to invoke the doctrine of adverse inference without evidence on record that the document was in the possession of the defendants and that the same was being withheld without any reason ? (g) was the appellate court justified in relying on the commission report without noticing that the identification of the properties by the commissioner have been rendered meaningless by the amendment to the description of the same in the plaint ? (h) was the appellate court justified in concluding that the parties had relinquished their claim over a SA 345/00 6 portion of the property merely on the basis of the statement of the commissioner that it was never so especially when in the written statement and subsequently in the deposition the defendants had laid claim over the entire suit property. 7. The learned counsel for the appellants pointed out that the lower appellate court has clearly gone wrong in decreeing the suit in favour of the plaintiff. The plaintiff had laid claim over 40 cents of property comprised in RS No.588/2 based on Ext.A1 purchase certificate. The learned counsel pointed out that the definite stand taken by the plaintiff was that the property covered by Ext.A1 lies contiguous and as a compact plot with 3.57 acres which the plaintiff otherwise had with her and she is definite that the said 3.57 acres was lying on the northern side of the plaint schedule property. The learned counsel also contended that for cogent and convincing reasons, the trial court had held that the plaintiff could not have held any property in RS No.588/2 and that can be seen from a SA 345/00 7 perusal of Ext.B1 document. The commissioner's report, according to the learned counsel, shows that going by the plaint description, the properties seen at the site do not tally. After the commissioner's report was filed, the plaintiff had amended the plaint and sought additional reliefs. The learned counsel pointed out that the plaint schedule, as it now stands, is not in conformity with the details contained in Ext.A1 purchase certificate. The learned counsel went on to point out that the lower appellate court, by a curious method of reasoning, arrived at a conclusion that the defendants have not succeeded in proving that they are owners of the property claimed by them and that led to a decree in favour of the plaintiff. 8. The learned counsel for the respondent, on the other hand, contended that the lower appellate court has also considered the evidence adduced by the defendants and on a preponderance of probability, came to the conclusion that the plaintiff has succeeded in establishing her case. The lower appellate court has SA 345/00 8 considered the documents of title produced by both sides and the commissioner's report and has come to the conclusion that going by the documents of title produced by the defendants, it could not be said that the defendants have succeeded in proving their title to some of the plots shown by the commissioner in Ext.C2 plan. The learned counsel contended that the lower appellate court was justified in coming to the conclusion that the plots shown as D and E are included in the plaint schedule property and the plaintiff is entitled to reliefs in respect of the same. 9. The definite case of the plaintiff is that 40 cents covered by Ext.A1, comprised in Survey No.588/2 and the 3.57 acres which she otherwise possessed, lie as a compact plot. At the outset itself, it may be noticed that the plaintiff did not bother to get the 3.57 acres claimed by her comprised in RS No.189 of Malom village, identified. 10. One must remember that the suit is one for injunction and the burden is on the plaintiff to prove her exclusive possession over the suit property. SA 345/00 9 11. Ext.B1 is the partition deed in the family of the plaintiff. She is executant No.4 to the document and she was allotted D schedule. It is by virtue of that document, that she claims the 3.57 acres of land. In addition to that, she claims the plaint schedule property as per Ext.A1. It must be noticed that D schedule is in B1 which contains four items. All the four items are comprised in Survey No.189. No property is given to the plaintiff comprised in Survey No.588/2 as per Ext.B1. It is significant to notice that except for Ext.A1, no other documents whatsoever is produced by the plaintiff in support of her case that the plaint schedule property belongs to her and it is in her possession. The defendants have produced Ext.X1 document, which is a purchase certificate which relates to 3 acres comprised in Survey No.588/2. 12. The commissioner's report shows that the suit properties are plots A, C and D shown in Ext.C2 plan. The commissioner's report also says that plots D and E SA 345/00 10 plots were claimed by the plaintiff. The report also discloses that the northern boundary of the three acres as per Ext.X1 is 'jenm property of Sankaran Nair”. It has come out in evidence that Sankaran Nair is none other than the father of the plaintiff. 13. PW1 has stated that at the time of Ext.B1 partition deed, Ext.A4 plan was prepared. 14. Now, one may have a look at Ext.A4 plan. The south east plots A and B are the properties given to the plaintiff as per that deed and that is situated on the southern side of the plaint schedule property. PW1 says that the southern boundary of item No.1 in D schedule to Ext.B1 shown as chal is not correct. PW1 also says that plots D and E in Ext.C2 on the southern side is a chal. PW1 further says that the boundaries shown in the application which culminated in Ext.A1 are wrong. PW1 is definite that at the time of execution of Ext.B1 partition deed, the property allotted to each sharer was specifically measured. He also says that till the death of Sankaran SA 345/00 11 Nair, the father of the plaintiff, the plaint schedule property was in his possession. 15. Going by the commissioner's report, the commissioner opines that the suit property must be on the north eastern side of the chal. As per the report, A schedule is on the southern side of the chal and lies at a higher level. Plot C is 3 to 4 feet lower to F plot. The report also discloses that plots D and E do not appear to be similar with regard to the lie and nature of improvements. The commissioner's report says that plot A lies contiguous to the plot comprised in RS No.189 and also goes on to further say that E plot looks similar to the plots which were admittedly owned by the plaintiff in Survey No.189. 16. The dispute in this case centres round D plot in the commissioner's plan is Ext.C2. Going by the report, D plot does not lie as a compact plot as claimed by the plaintiff. The explanation offered by PW1 in this regard is far from convincing. SA 345/00 12 17. It is on the basis of the above materials that the trial court had found that the plaintiff had not succeeded in establishing possession over the suit property. 18. A reading of the judgment of the lower appellate court shows that the lower appellate court has taken much pains to discuss about the document of title of the defendant rather than to consider whether the plaintiff has proved her case. As rightly pointed out by the learned counsel for the appellant, the lower appellate court embarks on an arithmetic jugglery and comes to the conclusion that the plaintiff should succeed. In doing so, in fact, the lower appellate court has found a case, which even the plaintiff did not have. The lower appellate court finds that since none of the boundaries in Ext.X1 shows the chal as boundary, the chal is included in Ext.X1. Then it goes on to hold that so the extent of chal that is 98 cents is to be added to the extent of property obtained by the defendants and if that be so, the defendants had excess land. SA 345/00 13 19. It must be noticed that the defendants do not lay any claim to E plot which has an extent of 17 cents. The entire discussion is about the description of the property covered by Ext.B2 and then, the lower appellate court made calculations and comes to the conclusion that the property covered by Ext.B2 must be more than 3 acres as contained in Ext.X1. It also goes on to hold that since the defendants have not produced the gift deed, an adverse inference should be drawn. A reading of the judgment of the lower appellate court would indicate that the entire burden was thrown on the defendants to prove that the plaint schedule property belongs to them. The lower appellate court takes note of the chal shown in Ext.A4. PW1 himself does not approve that and says that the boundary shown as chal is wrong. Thereafter, the lower appellate court goes on to speculate that the plaintiff might have got more than 3.57 acres as per Ext.B1, a case which the plaintiff did not have. SA 345/00 14 20. The next conclusion is rather strange. After having held that the plaintiff might have got more extent as per Ext.B1, the lower appellate court jumps to the conclusion that the plaintiff might have found that B1 property allotted to her does not take in the property comprised in Survey No.588/2 and therefore, she might have preferred an application before the Land Tribunal and got a purchase certificate. 21. It can thus be seen that the findings of the lower appellate court that went in favour of the plaintiff are based on speculations and imaginations or rather conjunctures and surmises than evidence on record. In reaching its conclusions, the lower appellate court has conveniently omitted to consider Ext.A1, the plaint and the evidence of PW1. The most shocking finding is that the lower appellate court goes on to hold that going by Ext.B2, defendants' schedule does not take in plots C,F,D, and E shown in Ext.C2, a case which nobody had, especially the plaintiff. One fails to understand as to how the lower SA 345/00 15 appellate court could have reached such conclusions. It has not considered the burden of proof and also the materials provided by the plaintiff in support of her case. Instead, the lower appellate court went on to consider the documents produced by the defendant and held that they are not sufficient to establish their case. It is for the plaintiff to prove that she is in exclusive possession of the suit properties. It is significant to notice that the plaintiff does not independently of Ext.B1 lay claim to any property outstanding on lease with her. It is here that the non- production of the application forms or the order which culminated in the issuance of Ext.A1 assumes importance. One cannot also omit to note the definite statement of PW1 that the boundaries in the application given for getting the assignment of the right, title and interest of the Jenmi are wrong. It is quite unfortunate that the lower appellate court has misdirected itself both on facts and in law. In the interest of justice, it is felt that a reconsideration of the issue is required at the hands of the lower appellate court. SA 345/00 16 In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what is stated above. The parties shall appear before the lower appellate court on 06.09.2011. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within four months from the date of appearance of parties before court. A copy of this judgment shall be forwarded to the lower appellate court also. P.Bhavadasan, Judge sta SA 345/00 17