IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 SA.No. 240 of 1995(C) --------------------- AS.128/1986 of I ADDL.SUB COURT,TRIVANDRUM AS.393/1986 of DISTRICT COURT, TRIVANDRUM O.S 283/1983 OF PRL.MUNSIFF'S COURT, NEDUMANGAD .................... APPELLANT(S): -------------------- 1. PAZHAKUTTY MAHAGANAPATHY TEMPLE, REPRESENTED BY ITS PRESIDENT, P.G CHANDRASEKHARAN NAIR, POURNAMY, NEDUMANGADU P.O BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): ---------------------- 1. ABDUL REHUMAN MYTHEEN, KAVUVILA PUTHEN VEEDU, KOLLAMKAVU, VADAKKUMKARA MURI, NEDUMANGAD VILLAGE * 2. THANKAPPAN NAIR, S/O GOVINDA PILLAI, KRISHNA BHAVAN, KOLLAMKAVU, -DO- DIED 3. BHASKARA PILLAI REGHUNATHAN NAIR, ROADARIKATHU LETHI HOTEL, PAZHAKUTTY, VETTAMPALLY MURI, ANAD VILLAGE. ** 4. ANANTHASUBRAMONIANASARY, S/O VELAYUDHANASARY, PATHROMKOTTU KIZHAKKUMKARA PUTHEN VEEDU, DIED VATTAMPALLY MURI, ANAD VILLAGE 5. NANUKUTTAN PILLAI, S/O KUMARASWAMYPILLAI, KUNNATHUMALA CHARUKUVILAKATHU VEEDU, ANADU MURI, ANAD VILLAGE. 6. SABU, S/O VASU, NARICHILOTTU PUTHEN VEEDU, PULIPPARA, VADAKKUMKARA MURI, NEDUMANGAD VILLAGE. 7. MOHANAN NAIR, S/O BHASKARAN NAIR, GEETHA MANDIRAM, VENGAVILA, CHOLLAMKODU MURI, NEDUMANGADU VILLAGE. SA.No. 240 of 1995(C) 2 *** 8. AHAMMEDPILLAI MOHAMMEDKUNJU, MEMALA HOUSE, PAZHAKUTTY, VADAMMUMKARA MURI, DIED NEDUMANGADU VILLAGE. 9. ABDUL KHADER LEBBA JAFERKHAN, MEMALA HOUSE, PAZHAKUTTY, VETTAMPALLY MURI, ANAD VILLAGE 10. SHAIK MOHAMMED, PAZHAKUTTY, NEDUMANGADU ADDITIONAL RESPONDENTS R11 TO R13: 11. KRISHNAMMA, S/O ANANTHA SUBRAMANIAN ASARI, PATHROMKOTTU KIZHAKKUMKARA PUTHEN VEEDU, VETTAMPALLY MURI, ANAD VILLAGE. 12. ASOKAN. S/O ANANTHASUBRAMANIAN ASARI -DO- 13. JAYACHANDRAN, S/O ANANTHASUBRAMANIAN ASARI -DO- ADDITIONAL RESPONDENTS R14 TO R16: 14 KRISHNAMMA, W/O THANKAPPAN NAIR, KRISHNA BHAVAN, KOLLAMKAVU, VADAKKUMKARA MURI, NEDUMANGADU. 15. T.K.BALACHANDRAN, S/O THANKAPPAN NAIR, -DO- 16. T.K.SURESH KUMAR, S/O THANKAPPAN NAIR, -DO- ADV. SRI.T.H.ABDUL AZEEZ FOR R1 SRI.R.S.KAKKURA SRI.B.KRISHNAMANI ** Additional respondents 11 to 13 are impleaded as the legal heirs of deceased 4th respondent as per order dated 04/08/2003 on C.M.P No.1730/2002. * Additional respondents 14 to 16 are impleaded as the legal heirs of deceased 2nd respondent as per order dated 23/06/2004 on C.M.P No.1727/2002. *** It is recorded that R8 died and he has no legal representatives to implead as parties in this S.A as per order dated 04/08/2010 ub Memo of No.2152/2005 filed by the counsel for the appellant. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A NO.59/2005 DISMISSED. 03/11/2010 S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.240 OF 1995 -------------------------------- Dated this the 3rd day of November 2010 JUDGMENT Plaintiff is the appellant. Suit was one for perpetual prohibitory injunction. Both the courts below have negatived the claim canvassed by the plaintiff. Feeling aggreived, the plaintiff has preferred this Second Appeal. 2. Plaintiff is a temple represented by the Secretary of its managing committee. Suit was originally filed only against a sole defendant/the first respondent herein, scheduling a property having an extent of 12 cents. Description of the suit property with the extent aforementioned consisted of two cents of registered holding, four cents of puramboke land and six cents of river bund. However, later, the suit was amended impleading additional defendants and showing a larger extent of property, described as having 22 cents. The claim of the plaintiff was based on two gift deeds, Ext.A16 and Ext.A17 alleging that the property originally belonged to one Easwarapillai and that he had constructed an inn and also a porters rest in such land. One of the successors in interest of Easwarapillai, who had obtained the right of the other coowners over the land, executed Ext.A16 and Ext.A17 gifts in favour of the temple was the case of the plaintiff. It was alleged that a building situate in the property was let out to the second defendant for conducting a hotel S.A No.240 OF 1995 - 2 - and the third defendant is his servant is managing that hotel. The first defendant was alleged of conducting a shop situate in one cent in the plaint schedule. Some of the other defendants are state of occupying other shop rooms in the plaint property, as let out by the plaintiff. The first defendant is attempting to encroach upon and annex portions of the plaint property, and other defendants are actively assisting him is the main case canvassed for the discretionary relief of perpetual prohibitory injunction against them. First and third defendants alone resisted the suit claim, filing separate written statements. Both of them disputed the title and possession claimed over the property described in the plaint contending that the description of the property is mischievous and further, the temple has no possession or enjoyment over the property. The third defendant even contended that the temple is in possession of only one cent of property in the plaint schedule. The first defendant contended that in a portion of the property described in the plaint schedule, a Mosque has been built and it continues as a place of worship by the members of his community. The third defendant similarly claimed his possession and enjoyment over the hotel which is, admittedly, situate within the property described in the plaint denying the title and possession of the plaintiff. On the materials placed, the trial court found that the plaintiff has failed to S.A No.240 OF 1995 - 3 - prove possession over the entire property described in the suit and accordingly, the suit was dismissed. The appellate court, after reappreciating the evidence, noticing that even under Ext.A16 and Ext.A17 gift deeds, on the basis of which the plaintiff claimed title and possession, only an extent of 20 cents is shown, concurred with the conclusion formed by the trial court and upheld the dismissal of the suit. As against that concurrent decision rendered by the two courts below, plaintiff has preferred this appeal. 3. Substantial questions of law raised in the appeal among others included, whether the courts below have gone wrong in placing reliance on Ext.B1 report and Ext.B1(a) plan prepared by an advocate commissioner in another suit and also whether there was denial of sufficient opportunity to the plaintiff in establishing its case for the discretionary relief of injunction. 4. I heard the counsel on both sides. Having regard to the submissions made and perusing the judgment rendered by the courts below, it is seen, despite the challenge raised by the first and third defendants disputing the identity of the suit property and also the possession thereof by the plaintiff, appellant/plaintiff had not taken out a Commission to identify the suit property with reference to the title deeds or survey records. As already indicated, the suit was laid initially describing a property of 12 cents, but, later, it was S.A No.240 OF 1995 - 4 - amended to claim a larger extent of 22 cents. Even on the plaint description and also on admission by the plaintiff, the claim raised over a larger portion of the plaint schedule, pertained to purampoke land. It has also come out that the property described in the plaint, over which the relief of injunction was claimed, comprised of an inn and also a porters rest indicating an unmistakable term that it was in existence at least for considerable period before Ext.A16 and Ext.A17 were executed in favour of the plaintiff. In olden days, porters rest was constructed beside a public road to enable the porters carrying goods to unload, and take cart, very often with an inn put up nearby to give a resting place to the travelers passing by. The defendants have contended that an idol was installed in the inn situate in the property only recently, and the temple has no exclusive possession or enjoyment over the plaint property. They have also disputed and challenged the title of the person from whom the plaintiff obtained Ext.A16 and Ext.A17 gift deeds. The third defendant had, admittedly, instituted a suit earlier, as against the present plaintiff, for a decree of injunction apprehending his eviction from the building where he is operating a hotel. In that suit, an advocate commissioner, after conducting local inspection, had filed a report and plan. Copy of that report and plan were produced and exhibited in the present case as Ext.B1 and Ext.B1 (a). The S.A No.240 OF 1995 - 5 - commissioner was also examined as DW1. The evidence of the commissioner corroborating his report and plan disclosed that a Mosque is situate beside the temple in the property scheduled in the plaint. The shop rooms of the 3rd defendant, who was asserted independent title and possession, is also situate within the plaint property, which is conceded by the plaintiff also. The identity of the property claimed by the plaintiff to seek an injunction having not been established and in the back drop of the circumstances indicated above, the dismissal of the suit cannot be found fault with. I find there is no question of law leave alone any substantial question of law in the appeal, and no interference with the concurrent decision rendered by the courts below is called for. However, it is made clear that the dismissal of the suit will not stand in the way of the plaintiff temple in seeking appropriate remedies as under law over any portion of the land covered by the plaint schedule on establishing its title over such property. The appeal is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN vdv JUDGE //True Copy// P.A to Judge