IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 SA.No. 17 of 1999(B) -------------------- AS.100/1991 of SUB COURT, TIRUR OS.159/1987 of MUNSIFF COURT, TIRUR .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- KUTTIPPURATH THODI MUHAMMED, S/O.UNNEENKUTTY, AGED 71 YEARS, RESIDING AT KURUMBATHUR AMSOM, PUNNATHALA DESOM, TIRUR TALUK. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) SRI.P.CHANDRASEKHAR RESPONDENT(S)/APPELLANT/DEFENDANT: --------------- ATHANIKKAL KHADER @ BAVA, S/O.ATHANIKKAL MARAKKAR, AGED 41 YEARS, RESIDING AT MARAKKARA AMSOM, KALLAR MANGALAM DESOM, TIRUR TALUK. ADV. SRI.T.KRISHNANUNNI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.17 OF 1999 ----------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T Plaintiff is the appellant. Suit was one for perpetual prohibitory injunction and also for recovery of money. Trial court decreed the suit as applied for by the plaintiff. The lower appellate court in the appeal preferred by the defendant reversed the judgment of the trial court and dismissed the suit. Aggrieved by that decision, the plaintiff has preferred this appeal. 2. The case of the plaintiff is that on the basis of Ext.A2 agreement entered, the defendant was permitted to use the way on the southern side of the plaint schedule property for transporting granite boulders from the nearby quarry subject to payment of Rs.260/- per month as rent. The way used for plying the lorries carrying the granite boulders formed part of the SA.NO.17/1999 2 plaint property and the use thereof by the defendant is subject to the terms and conditions under Ext.A2 agreement, according to the plaintiff. There was default on the part of the defendant in paying monthly rent and the arrears thereof has accumulated to Rs.2,580/- and he is not entitled to transport granite by plying lorries through the plaint properties is the case of the plaintiff for getting a decree of perpetual prohibitory injunction against the defendant restraining him from making use of the plaint properties and also for the arrears due on rent as claimed in the suit. The defendant resisted the suit claim disputing Ext.A2 agreement and also the claim set up by the plaintiff over the road through which lorries are plied carrying granite boulders from the nearby quarry. The trial court, on the materials produced was persuaded to hold that the case of the plaintiff that the defendant was enjoying the road for carrying granite loaded lorries on the basis of permission accorded to by the plaintiff in terms of Ext.A2 agreement and the challenges raised by the defendant disputing the right of the plaintiff over the road and also Ext.A2 agreement as having been not executed by him, are SA.NO.17/1999 3 meritless. In that view of the matter, a decree was granted in favour of the plaintiff as applied for in his suit. The lower appellate court on re-appreciation of the materials tendered in the case, in the appeal preferred by the defendant came to a different conclusion that the execution of Ext.A2 agreement by the defendant has not been proved by convincing evidence, and further, the plaintiff failed to establish that the road through which granite loaded lorries from the quarry were taken by the defendant formed part of the plaint schedule property. In arriving at such conclusion, the lower appellate court reversed the decree granted by the trial court and dismissed the suit. 3. In this second appeal preferred by the plaintiff, needless to point out, the correctness of the decision of the lower appellate court, which is a final authority, on disputed questions of fact can be gone into only if it is shown that such finding were perverse. On the disputes emerging for consideration involved in the suit, two questions had predominance for resolving the controversy to consider whether the suit claim is sustainable. SA.NO.17/1999 4 The description of the plaint schedule property was challenged by the defendant contending that the road through which granite loaded lorries were taken by him does not form part of the plaint properties. It has also come out that the defendant had filed another suit, and, he had obtained an order of temporary injunction against the plaintiff restraining him from causing any obstruction to the defendant in plying his lorries through the road claimed by the plaintiff as part of the plaint property. An Advocate Commissioner had conducted local inspection and filed a report in the suit filed by the defendant. That Advocate Commissioner was examined as a witness in the case as PW2. The evidence of PW2 with that of the defendant as DW1, after evaluation, were found acceptable by the lower appellate court to reach a conclusion that the road claimed by the plaintiff as part of the plaint property cannot be considered to be so in the absence of material evidence establishing the case of the plaintiff on that count by having a measurement of the plaint properties with reference to his title deed. Incidentally, it has to be pointed out that the plaintiff has not taken out a commission SA.NO.17/1999 5 to identify the plaint schedule property despite the contention raised by the defendant disputing his claim over the road, which, according to him, formed part of his property. Needless to point out, in a suit for injunction, the burden is on the plaintiff to prove the identity of the suit property where it is disputed. The trial court after comparison of the signature of the defendant in the process issued in the injunction application with that of Ext.A2 agreement had reached a conclusion that such agreement was executed by the defendant negativing the dispute raised thereof by him. The lower appellate court found it unsafe to enter a finding on that disputed question on the basis of comparison of admitted signature of the defendant with those appearing in the Ext.A2 agreement. The view taken by the lower appellate court, in the given facts of the case, without considering the other materials tendered by the plaintiff to prove the execution of Ext.A2 agreement cannot be approved. Plaintiff has examined one witness PW2, who was a witness in the Ext.A2 agreement, to prove that it was executed by the defendant. The evidence of PW2, it is seen, was not taken into account by the lower SA.NO.17/1999 6 appellate court when it had proceeded to consider the validity of Ext.A2, the execution of which was denied by the defendant. But on the basis of Ext.A2 agreement alone even by accepting the evidence of PW2, it is not possible to grant the decree of perpetual prohibitory injunction in favour of the plaintiff as such a relief could be possible only on proof of identification of the plaint property. The Commissioner appointed in the suit filed by the defendant as plaintiff, examined as DW2, had given evidence before the court contradicting the claim set up over the pathway by the plaintiff. Without proving the identity of the plaint schedule property the plaintiff was not entitled to a decree of injunction against the defendant. The money claim under Ext.A2 in fact rested upon the claim of the plaintiff over the road as part of the plaint property. When the plaintiff failed to establish that the road formed part of the plaintiff property by cogent and convincing evidence, the dismissal of his suit reversing the decree granted by the appellate court holding that he is not entitled to the money claim and also the injunction in the given facts of the case cannot be found fault with and, hence, it is not SA.NO.17/1999 7 liable to be interfered. The appeal is dismissed directing both sides to suffer their costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.17 OF 1999 ----------------------------------- J U D G M E N T 23rd day of September, 2010 SA.NO.17/1999 9