IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 RSA.No. 1055 of 2004() ---------------------- AS.71/1998 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.580/1979 of III ADDITIONAL MUNSIFF COURT,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------------------- PACHAN NARAYANAN, RESIDING AT 6/1271, RALAMAR KUZHIVILA PUTHUVAL PUTHEN VEEDU, ARAPPURA, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): RESPONDENTS 2 TO 6/DEFENDANTS 2 TO 6 ---------------------------------------------------------------------------------------- 1. KAMALAKSHI SUSEELA, RESIDING AT MELAMAR KUZHIVILA NELEY VEEDU, ARAPPURA, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. PAPPAN VIJAYAN, ARAPPURA NARANGAVILA VEEDU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 3. PAPPAN JOY OF DO. DO. 4. PAPPAN JOHNEY OF DO. DO. 5. THANKAMONY, W/O.HAMEED, T.C. 4156, AMBALANAGAR, KAWDIAR, THIRUVANANTHAPURAM. ADV. SRI.K.B.PRADEEP FOR R1,R5 SRI.M.R.ANANDAKUTTAN FOR R2 TO 4 SMT.M.A.ZOHRA FOR R2 TO 4 SRI.R.S.MADHU FOR R2 TO 4 SRI.MAHESH ANANDAKUTTAN FOR R2 TO 4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/ 11/ 2011 , THE COURT ON 18/11/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ================= R.S.A.No.1055 of 2004 ================== Dated, this the 18th day of November, 2011 JUDGMENT Plaintiff in O.S.580 of 1979 on the file of Munsiff Court, Thiruvananthapuram is the appellant. Defendants are respondents. Suit was filed for permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property demolishing the boundary walls or disturbing his possession and enjoyment of the plaint schedule property. Plaint schedule property was originally shown as in survey No.1725, but was subsequently amended by showing it in survey No.2725, having an extent of 16 cents describing it as “puthuval pathiru”(unsurveyed land). According to the appellant, plaint schedule property has been in his possession for the last several RSA 1055/2004 2 years and he constructed a residential building in 1966 and has been residing therein with his family. He also constructed a shop room, and is conducting business and effected valuable improvements. It was contended that first respondent was having property only to the south of the road and respondent has no right over any portion of the property which lies to the north of the road and respondents 1 and 2 were claiming right. Apprehending trespass, suit was filed. 2. Respondents 1 and 2 resisted the suit contending that appellant is the tenant under the mother of the first respondent under Ext.B11 rental arrangement. It was contended that appellant executed Ext.B11 rent deed in favour of the mother who is having a total extent of 35 cents inclusive of the plaint schedule property and appellant is not entitled to the decree sought for. 3. The suit was originally dismissed by the trial court. It was challenged by the appellant in A.S.1 of 1981. As per judgment dated 27.9.1980, RSA 1055/2004 3 suit was remanded for fresh disposal. Learned Munsiff thereafter granted a decree in favour of the appellant. It was challenged in A.S.52 of 1985 and A.S.131 of 1985 by separate appeals by the respondents 1 and 2. By judgment dated 13.1.1997, suit was again remanded for fresh disposal. Subsequent to the said remand, respondents 3 to 5 were impleaded as the legal heirs of deceased first respondent. Sixth respondent got impleaded as an assignee of the first respondent. 4. Learned Munsiff by judgment dated 13.1.1997 dismissed the suit finding that appellant is a building tenant under Ext.B11 rent deed. Appellant challenged the decree before District Court, Thiruvananthapuram in A.S.71 of 1998. Learned District Judge, on re-appreciation of the evidence, dismissed the appeal confirming the decree, recording that the learned counsel appearing for respondents submitted that appellant will not be evicted from the building in the plaint schedule property other than by due process of law. Appeal RSA 1055/2004 4 was filed challenging the decree. 5. Appeal was admitted formulating the following substantial questions of law. “1)Whether a suit for perpetual injunction simplicitor based on possession of the plaintiff can be dismissed when even the defendants admit the possession of the plaintiff, but claim that the possession is under a title different from the one pleaded by the plaintiff ? 2) In the suit where the question is as to whether the plaint schedule building comes in a particular survey division or not, were the courts below acting legally in deciding the issues without any adjudication on the objections to the Commission report ? 3) Whether a document which has been held to be inadmissible and rejected during trial by the court under the Stamp Act RSA 1055/2004 5 and the Registration Act can be admitted in evidence after the appellate court sets aside the decree in the suit for fresh disposal ?”. 6. Learned counsel appearing for appellant and respondents were heard. 7. Learned counsel appearing for appellant argued that the courts below did not properly appreciate the evidence and the evidence of DW1 establish that mother of respondents 1 and 2 had right over the property which lies to the south of the plaint schedule property. It was pointed out that the Commissioner has identified the plaint schedule property which lies to the north of the road, along with the property which lies to the south of the road, and excluding the road, the total extent was shown as 35 cents and the evidence of DW1 shows that the road was formed later and if that be so, necessarily some extent is to be deducted from the land originally available as utilised for formation of the road and if so, RSA 1055/2004 6 there cannot be 35 cents with the mother and this aspect was not looked into by the courts below. Learned counsel also argued that Ext.A5 building tax register extract, in respect of the building in the plaint schedule property for the period 1972-73 shows that the building is 6/1271 and it was not numbered earlier. It was pointed out that Ext.A6 building tax register extract for the period 1978- 79 shows that the building was 6/489 and its previous number is 6/1271, corresponding to Ext.A6. Learned counsel argued that in such circumstances, based on Ext.B6, courts below erred in holding that the building was constructed by the mother of the respondent as that building is 6/1297 and not the building in the plaint schedule property. It was also pointed out that Ext.B11 rent deed shows the building number as 6/1297 and in such circumstances, it is clear that it was created based on the number seen in Ext.B6 and it is not genuine and in any case it is not in respect of the building in the plaint schedule property.It is RSA 1055/2004 7 therefore submitted that based on Ext.B11 it cannot be found that appellant is only a tenant of the building as found by the courts below. Learned counsel submitted that as possession of the plaint schedule property is established, a decree for injunction should have been granted. 8. Learned counsel appearing for the respondents submitted that suit was remanded twice and the properties were identified with the assistance of the Surveyor and the courts below found that plaint schedule property which lies to the north of the road also forms part of the 35 cents belonging to the mother of the first respondent and therefore respondents have title to the plaint schedule property. Learned counsel argued that the possession of the appellant is only under Ext.B11 rent deed and the finding of fact arrived at by the courts below based on Ext.B11 cannot be interfered. Learned counsel finally submitted that respondents admitted before the courts below that they will not evict the appellant RSA 1055/2004 8 other than due process of law and in such circumstances appeal is only to be dismissed. 9. Appellant is not claiming title to the plaint schedule property. Even according to appellant, he has no title, but has been in possession of the property from 1966 onwards. The suit is filed to protect his possession from apprehending trespass. Respondents on the other hand contended that the mother of respondents 1 and 2 is entitled to 35 cents and the plaint schedule property forms part of the 35 cents. It is in fact to decide this fact, the suit was remanded twice. Though the surveyor identified the plaint schedule property as part of 35 cents, as rightly pointed out by the learned counsel appearing for the appellant based on the identification done by the Commissioner it is not possible to hold that plaint schedule property forms part of the 35 cents belonging to the mother of the respondents 1 and 2. Evidence of DW2 the surveyor establishes that the property was not RSA 1055/2004 9 identified with reference to the survey records. Moreover, if the evidence of DW1 is to be believed, the road was formed subsequent possession of 35 cents came with the mother of the respondents. If that be so, when a road is formed through that property, leaving the road, there cannot be 35 cents. Necessarily a portion of the property is to be used for formation of the road. If that be so, it cannot be said that the 16 cents which lies to the north of the road forms part of the 35 cents. Whatever it be, being a suit for injunction, I do not find it necessary to resolve the said dispute. 10. Though courts below relied on Ext.B11 to find that appellant is a building tenant, there is force in the submission of the learned counsel that Ext.B11 was not a genuine rent deed. Ext.B11 shows that it is a rent deed executed in respect of building No.TC 6/1297 on 15.3.1974. Exts.A5 and A6 are admittedly the property tax demand register extracts in respect of the building in the plaint schedule property. Ext.A5 relates to 1972-73. It RSA 1055/2004 10 establishes that the building was numbered for the first time and the number was 6/1271. It was specifically noted in the column, where the previous number is to be noted, that the previous number is nil. Ext.A6 for the subsequent period 1978-79 establishes that the number was changed to 6/489. Its previous number is shown as 6/1271. Therefore it is clear that the building was numbered for the first time in 1972-73 and it was 6/1271 and during 1978-79 it was changed to 6/489. It is absolutely clear that the building was not having the building number TC 6/1297 during 1974. Ext.B6 the permit, produced by the respondents to prove that the mother of respondents 1 and 2 constructed the building after obtaining the building permit from the Corporation, shows that the permit was granted on 17.6.1972 and the period of the permit expired on 16.6.1973. Permit was issued in the name of Mary Elsi, the mother of respondents 1 and 2. Her address is shown as in TC 6/1297. The locality of construction is also shown RSA 1055/2004 11 as 17 M2 6/1297 Vattiyoorkavu. It is thus clear that building 6/1297 is the building belonging to the mother of respondents 1 and 2 even before 1972. If that be so, Ext.B11 cannot be in respect of the plaint schedule property. Viewed from that angle, the possibility of creating Ext.B11 subsequently cannot be ruled out. Whatever it be, in the nature of the case, it is not necessary to finally decide that aspect also in the appeal. 11. Evidence establish that appellant has been in possession of the plaint schedule property, which lies to the north of the road. The property which lies to the south of the road admittedly is in the possession of the respondents. Respondents even before the first appellate court submitted that they will not evict the appellant other than by due process of law. In such circumstances appellant is entitled to a decree for injunction restraining the respondents from forcibly evicting him or trespassing into the plaint schedule property, reserving right to claim recovery of RSA 1055/2004 12 possession on establishing title. Appeal is allowed. The decree and judgment in O.S.No.580/1979 on the file of Munsiff Court, Thiruvananthapuram as confirmed by the District Judge, Thiruvananthapuram in A.S.71/1998 is set aside. The suit stands restored and decreed as follows:- Respondents defendants are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or evicting the appellant other than by due process of law, if they have title. Parties are directed to suffer their respective costs. M.SASIDHARAN NAMBIAR JUDGE lgk/tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006