IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 SA.No. 159 of 2000(B) ------------------------------ AS.170/1996 of PRINCIPAL SUB COURT, KOZHIKODE OS.11/1990 of Principal MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): APPELLANTS/DEFENDANT -------------------------------------------------------------- 1. M.SUBRAMANIAN, AGED 37 YEARS, MANIYERI HOUSE, S/O.NARAYANAN NAIR, KANNIPARAMBA AMSOM & DESOM, KOZHIKODE TALUK. 2. MANNARKOTT KUMARAN NAIR, AGED 76 YEARS, S/O.GOPALAN NAIR OF DO. DO. 3. VATTAMKANDATHIL GOPINATHAN NAIR, AGED 40 YEARS, ADUVAD AMSOM & DESOM OF KOZHIKODE TALUK. 4. KUNNAPOYIL VELAYUDHAN, AGED 49 YEARS, S/O.KRISHNAN NAIR, KANNIPARAMBA AMSOM, DESOM OF KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.ARJUN SREEDHAR SRI.T.K.SANDEEP RESPONDENT(S): RESPONDENT/ PLAINTIFF ----------------------------------------------------------------- KOZHIPARAMBATH GOVINDAN NAIR, AGED 75 YEARS, S/O.THITTAKANDATHIL KRISHNAN NAIR, KANNIPARAMBA AMSOM, DESOM OF KOZHIKODE TALUK. (DIED) tss S.A. NO.159/2000 *ADDL. R2 TO R9 IMPLEADED. 2. M.RADHA, AGED 53 YEARS, D/O.LATE GOVINDAN NAIR, EDAKANDIYIL HOUSE, VELLANNUR, P.O.CHATHAMANGALAM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. M.PADMINI, AGED 51 YEARS,D/O. LATE GOVINDAN NAIR, PANACHIRULMEETHAL, MUNDAPALAM P.O., PANTHEERANKAVU, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 4. M.RAJAN, AGED 49 YEARS,S/O. LATE GOVINDAN NAIR, MACHERRIMMEL HOUSE,P.O. KANNIPARAMBU, KOZHIKODE TALUK,KOZHIKODE 673 661. 5. M.SAROJINI, AGED 47 YEARS, D/O.GOVINDAN NAIR, ENNARAMBATH HOUSE, KOZHIKODE P.O., CHATHAMANGALAM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 6. M.BHAGYALAKSHMI, AGED 45 YEARS, D/O.GOVINDAN NAIR, PULPARAMBIL HOUSE, P.O. KANNIPARAMBU, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 7. M.GEETHA, AGED 42 YEARS, D/O. GOVINDAN NAIR, VALIYATHODIKAYIL HOUSE, SANKETHAM, P.O.VELLALASSERY, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 8. RADHIKA, AGED 39 YEARS, W/O. LATE M.SOMASUNDARAM, KUNDANNOOR HOUSE P.O., CHERUKULATHOOR, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 9. AATHIRA, D/O. LATE M.SOMASUNDARAM, AGED 15 YEARS, KUNDANNOOR HOUSE, P.O.CHERUKULATHOOR, KOZHIKODE TALUK, KOZHIKODE DISTRICT, REPRESENTED BY THE GUARDIAN AND MOTHER ADDL. 8TH RESPONDENT. *ADDL. R2 TO R9 ARE IMPLEADED AS LRS. OF DECEASED SOLE RESPONDENT AS PER ORDER DTD 20.9.2011 IN IA. 529/2008. R2 TO R9 BY ADV. SRI.P.RAMAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No. 159 of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of November, 2011 J U D G M E N T The defendants in O.S.No.11 of 1990 before the Munsiff Court Kozhikode are the appellants. They suffered concurrent decree against them. 2. Both the parties and facts are hereinafter referred to as they are available before the trial court. 3. The plaintiffs claimed title to the suit property as per Ext.A1 dated 03.09.1993 and his complaint was that the defendants were trying to trespass into suit property and disturb his possession. He therefore laid for a suit for injunction. 4. The defendants resisted the suit by pointing out that the plaintiff is not in actual possession of the plaint schedule property, a good portion of which was covered by portions of a temple situated in the plaint schedule property itself. They specifically contended in the written statement that the plaint schedule property had temple in it with 'Nagathara', pond, well etc attached to the temple. They therefore prayed that the suit :2: S.A.No. 159 of 2000 may be dismissed as the plaintiff is not in possession of the property. 5. On the basis of above pleadings issues were raised. The evidence consists of the testimony of PWs. 1 to 4 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants had DW1 examined and and Exts.B1 to B20 marked. Exts. C1 to C4 are the commissioner's report and plan. 6. The trial court on an evaluation of the evidence found that the defendants had not proved their possession over the suit property and decreed the suit. Unfortunately the lower appellate court did not feel it necessary to re- appreciate or reconsider the evidence on record and satisfied itself by observing that since the trial court has considered all the aspects, it is unnecessary to consider it again and confirmed the decree forgetting the fact that it is the final court on facts. 7. That brings the defendants before this Court. Notice is seen issued on the following questions of law:- :3: S.A.No. 159 of 2000 a. Are the Court below right in ignoring the oral and documentary evidence in the case in entering the findings and passing the decree? b. The trial court having raised issue No.2 relating to the title to the suit property, are the court below right in decreeing the suit without entering a finding on title? c. Whether the Courts below are justified in proceeding to decree the Suit in part without considering the validity of Exhibit B1 mortgage deed which purports to mortgage the entire property including the temple, the places of installation of the subsidiary deities, temple tank, well etc., which is contrary to Hindu Religious Concept and therefore, opposed to public policy hit by Section 23 of the Contract Act? AND d. Are the Courts below right in proceeding to decree the Suit without considering that a temple takes in not only the place of the installation of the principal deity but also the entire temple complex principal deity but also the entire temple complex respected, revered and worshiped by the worshipers? 8. The learned counsel appearing for the appellant pointed out that though they were faced with concurrent decrees, the counsel may be permitted to take this Court through the entire evidence to show that there has been an improper appreciation of the evidence and the burden is wrongly cast on the defendants, and thereby the decree is :4: S.A.No. 159 of 2000 clearly unsustainable in law. It is pointed out that the suit was one for injunction and the burden was on the plaintiffs to show that he was in exclusive possession of the suit property and the burden could not be cast on the defendants to show that they are in possession of the plaint schedule property. Drawing attention to the various items of evidence, it was pointed out that the plaintiff had no idea about the plaint schedule property and when each witness is examined on the side of the plaintiff the extent of plaint schedule property gets reduced resulting in a situation where one fails to understand what is the extent of property for which the decree is now granted. The learned counsel pointed out that there was no identification of the properties as such, it was a wrong appreciation that was adopted by both the courts below resulting in miscarriage of justice. 9. The learned counsel appearing for the respondent on the other hand tries to sustain the judgment of the courts below. It is pointed out that Ext.B1 is the prior :5: S.A.No. 159 of 2000 document of title which would clearly indicate that the temple was excluded from the purview of that document and it is the portion of the property covered by Ext.B1 that is conveyed under Ext.A1 to the plaintiff. These two documents would clearly indicate that the temple was excluded. And it is excluding the temple that the decree has been granted and accordingly it is pointed out that there is no grounds are made out to interfere with the judgment and decree of the court below. 10. After having perused the documents and heard both sides I find it extremely difficult to accept the contentions put forward by the respondent. As it rightly urged by the learned counsel for the appellant the suit was one for injunction and the burden was on the plaintiff to establish his exclusive possession to the suit property. What has now been done by both the courts below is that they have found that since the defendants had not been able to prove his possession over the suit property, a decree in favour of the plaintiff should follow. That is unfortunately :6: S.A.No. 159 of 2000 not the law. 11. One has to notice that the extent of plaint schedule property is shown as 1.99 acres and that includes the temple also. At the time of evidence PW1 admitted that the property covered by the temple was not assigned, it was excluded. It is interesting to refer to the evidence of PW1. He in fact disowns the plaint itself. A reading of his evidence shows that he has absolutely no idea about the property at all. PW3 is his son. He was examined to repair the damages done by PW1, but he miserably failed in his attempt. It made things worse. In fact PW1 has admitted that he has no idea about the document produced either by him or by the defendants. He had to concede in the cross examination that there was a 'Nagathara' the outside temple compound as now shown in the Commissioner's report. 12. It is true that the main structure as such is well bounded on all sides but the definite claim of the defendants was that there are worship areas outside the :7: S.A.No. 159 of 2000 temple compound which form the part of the temple. They also contended that the pond now located by the commissioner is the temple pond. Even though there is attempts from the side of the plaintiff and his evidence to show that the temple is not well attended, they were unable to withstand the cross examination and had to concede that it attracts lot of worshipers. 13. Even though PW 3 and 4 claimed that there were large scale cultivation in the suit property, unfortunately the commissioner who went on two occasions could not find any cultivation having been done by the plaintiff in the plaint schedule property. The property was covered by bushes and shrubs. There were nothing to show that the plaintiff was actually exercising possession over the suit property. 14. It is in the above context that one will have to look at the finding of the court below. It seems that the trial court had placed considerable reliance on Ext.C3 which claims to have been prepared after measuring the property :8: S.A.No. 159 of 2000 with reference to the documents. Of course in Ext.C3 report the commissioner says that he was shown the documents of the plaintiff and the deeds by which the plaintiff got the property under Ext.A1. The case has also built on that basis. But what is most surprising is that those documents based on which Ext.C4 plan is drawn are not either produced before the court below or marked. In the result one is not in a position to verify whether the commissioner's report is correct or not. In short there is no proper identification of the property at all. It is an admitted fact that out of the property received by the plaintiff under Ext.A1 he had assigned portions to various persons. Those portions were not properly identified and it is not possible to ascertain the extent of property in the possession of the plaintiff. These aspects have not been looked into by the courts below at all. It is quite unfortunate that the lower appellate court did not feel it necessary to probe into the matter independently and was satisfied by confirming the judgment and decree of the trial court. :9: S.A.No. 159 of 2000 For the above reasons this Court is unable to uphold the judgment and decree of the court below. This appeal is accordingly allowed, the judgment and decree of the court below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence if they so want. Parties shall appear before the trial court on 07.12.2011. The trial court may make every endeavor to dispose off the matter, as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties. P.BHAVADASAN, JUDGE kkj