IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 SA.No. 170 of 1999(C) --------------------- AS.61/1996 of SUB COURT, HOSDRUG OS.212/1995 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------ E.A. ABRAHAM, S/O. ABRAHAM, RESIDING AT ELAYARI THOTTATHIL, AYYANNUR CHITTARICKAL VILLAGE, HOSDURG TLAUK, P.O. KAMBLLOOR. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): APPELLANT/DEFENDANT ---------------------------------------------------------------- PAYYADAKATH SYAMALA, D/O. KARUNKARAN NAIR, RESIDING AT KOTTAYIL HOUSE, AYYANNOOR IN CHITTARIKKAL VILLAGE, HOSDRUG TALUK P.O., KAMBALLOOR ADV. SRI.M.SASINDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2011, ALONG WITH SA NO. 171 OF 1999 THE COURT ON 24/05/2011 DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.499/99 & 2408/1999 IN SA. NO.170/1999 DISMISSED 24/05/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 170 & 171 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May, 2011. JUDGMENT Two suits, namely, O.S.211 of 1995 and O.S.212 of 1995 before the Munsiff's court, Hosdrug were jointly tried and disposed of by a common judgment. Both the suits were for injunction. The trial court decreed O.S. 212 of 1995 and dismissed O.S.211 of 1995. The plaintiff in O.S.211 of1995, who had her suit dismissed and who suffered a decree in the other suit carried the matter in appeal as A.S. 61 of 1996 and A.S.62 of 1996 before the Sub Court, Hosdrug. The lower appellate court interfered with the judgment and decree of the court below and decreed the suit in favour of the plaintiff in O.S. 211 of 1995 and dismissed O.S.212 of 1995. Thus aggrieved by the lower appellate court decree, the defendant in O.S.211 of 1995, who is the plaintiff in O.S.212 of 1995 has come up with S.A. 170 & 171/1999. 2 these appeals. The parties and facts are hereinafter referred to as they are available before the trial court in O.S.211 of 1995 since that had been treated as the leading case by the trial court. 2. The plaintiff in O.S.211 of 1995 laid claim to the suit property on the basis of Exts.A1 and A2 documents. Ext.A1 is the purchase certificate obtained by the vendor of the plaintiff and Ext.A2 is the document of title in her favour. Eversince the sale deed, the plaintiff claimed to be in absolute possession and enjoyment of the suit property. The allegation was that with the intention of depriving her of a portion of her property, the defendants have created some documents and attempted to trespass into her property. On these allegations the suit was laid. 3. The defendants contested the suit. They disputed the extent shown in the plaint as the property owned by the plaintiff. It was contended that the first defendant had obtained one acre of property in R.S.178/3, out of which he had assigned 22 cents to the husband of the S.A. 170 & 171/1999. 3 plaintiff, 14 cents to Mathootty, 35 cents to the second defendant and 20 cents to Plathottathil Joseph. The remaining property is in his possession. Out of the property assigned to the second defendant 12 cents was assigned long ago and 23 cents was assigned recently. The second defendant subsequently assigned one acre and 2 cents in favour of one P.V.Kamalakshan. The extent of 23 cents comprised in R.S.178/3 obtained by the second defendant from the first defendant was assigned in favour of the third defendant. The property is bounded on all sides by well laid boundaries. The allegation of trespass was denied and they prayed for a dismissal of the suit. 4. The third defendant in O.S.211 of 1995 in turn laid O.S.212 of 1995 on the basis of the allegations similar to the contentions in the written statement in O.S.211 of 1995. The defendant in the suit resisted the suit on the basis of the contentions similar to the allegations in the plaint in O.S.211 of 1995. S.A. 170 & 171/1999. 4 5. On the basis of the pleadings, the court below raised issues for consideration. Evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants had D.Ws.1 to 3 examined and Exts.B1 to B7 marked. The trial court on an evaluation of the materials before it came to conclusion that the plaintiff has not succeeded in proving her possession over 23 cents of property which is shown as A and C plots in Ext.C4 plan and accordingly declined relief to the plaintiff in O.S.211 of 1995. Consequently the plaintiff in O.S.212 of 1995 was granted a decree in his favour. The plaintiff in O.S.211 of 1995 carried the matter in appeals, the result of the same has already been mentioned. 6. Notice is seen issued on the following questions of law: S.A. No.170 of 1999 “I. Whether the lower appellate court is justified in arriving at a conclusion that the defendant is in S.A. 170 & 171/1999. 5 possession of the suit property and the said property forms part of Ext.A2 property on the basis of the pleadings and evidence on record. II. Whether the decree and judgment passed by the trial court was liable to be interfered with at all by the lower appellate court on facts and law. III. Whether the lower appellate court has properly construed the documentary evidence especially Exts.A1, A2, B2, B4 and B7. IV. Whether the conclusion drawn by the lower appellate court that the Assignor under Ext.A2 had some more property in the vicinity of the suit property is justified on facts and law. V. Whether the lower appellate court is justified in discarding the evidentiary value of the commissioner's report, especially in the absence of the report being seriously assailed by the parties.” S.A. No.171 of 1999 “1. Whether the lower appellate court is justified in arriving at a conclusion that the suit property forms part of Ext.A2 property and that the plaintiff S.A. 170 & 171/1999. 6 is in possession thereof, on the facts pleaded and evidence on record. 2. Whether the decree and judgment passed by the trial court was liable to be interfered with at all by the lower appellate court on facts and law. 3. Whether the lower appellate court has properly construed the entire evidence especially Exts.A1, A2, B2, B4 and B7. 4. Is not the entire discussion and finding of the lower appellate court one sided and perverse.. 5. Whether the lower appellate court is justified in discarding the evidentiary value of the commissioner's report in the circumstances of the case.” 7. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the judgments and decrees of the trial court which had considered the entire evidence in considerable detail and has come to the conclusion that plaint A and C schedule properties did not belong to the plaintiff. It is true that there is some mistake in the recital of the southern S.A. 170 & 171/1999. 7 boundary in respect of Ext.A4 document that was only a bonafide one and it did not affect the right of the plaintiff in O.S.212 of 1995 who has right over C and A schedule plots shown in Ext.C4 plan. According to learned counsel, admittedly going by Ext.A2 document, the plaintiff in O.S.211 of 1995 had obtained only one acre of property and even without A and C schedule plots they had more extent. After the commissioner had filed his report, the plaint was amended in O.S.211 of 1995 claiming rights over 1 acre and 32 ¾ cents of property. It could thus be seen that the plaintiff had no idea about the property and that the lower appellate court was not justified in reversing the decree of the trial court. 8. Learned counsel appearing for the contesting respondents on the other hand pointed out that the lower appellate court has considered the matter in the right perspective unlike the trial court and has come to the right conclusion. Learned counsel drew the attention of this court to the commission report and pointed out that the entire S.A. 170 & 171/1999. 8 plots A, B, C, D, E lie as a contiguous plot with well laid boundaries and with uniform type of improvements, which would show that it was being enjoyed by the plaintiff in O.S.211 of 1995. Emphasis was laid on the fact that the plaintiff in O.S. 211 of 1995 had got her property identified by the commissioner while there was no such attempt from the side of the defendant at all. Going by the commission report, it is clear that A and C schedule properties form part of the property obtained by the plaintiff in O.S.211 of 1995 as per Ext.A2. Even though the extent shown has only one acre in Ext.A2, going by the boundaries and the identification made by the commissioner it can be seen that she is entitled to 1.32 ¾ acres of property. There is no reason as to why the judgment and decree of the lower appellate court should be interfered with. Further it was contended that the lower appellate court had found on an appreciation of the evidence that the findings of the trial court cannot be sustained and the conclusions drawn by the lower appellate court are pure questions of facts. No S.A. 170 & 171/1999. 9 substantial question of law arises for consideration in these second appeals and they are only to be dismissed. 9. At the outset itself it must be said that there is considerable force in the contention raised by the learned counsel for the contesting respondent. It is true that as per Ext.A2 document the plaintiff has got only an extent of 1 acre. But as rightly pointed out by the learned counsel for the respondent a commission was taken out in O.S.211 of 1995 and he has identified the plaint schedule property in that suit on the basis of the documents produced by the plaintiff. It is true that both sides had produced several documents containing various assignments in favour of various persons. The assignor of the plaintiff in O.S.211 of 1995, the first and second defendants in the said suit have obtained purchase certificates in respect of 1 acre 60 cents each. 10. Ext.A1 is the purchase certificate obtained by the vendor of the plaintiff in O.S.211 of 1995. He obtained 1 acre 60 cents in R.S. Nos. 178/1, 177/2A1, 178/3 and S.A. 170 & 171/1999. 10 178/2. The first defendant obtained Ext. B1 purchase certificate in respect of 1 acre 60 cents comprised in Sy. No.177/2B (31 cents), 177/2A (29 cents) and 178/3 ( 1 acre) and the second defendant obtained 1 acre 60 cents as per Ext.B3 comprised in Sy. No.178/1pt (25 cents), 178/3 pt (10 cents), 177/1 pt (35 cents) and 178/3 pt (90 cents). The property obtained by Reveendran Nambiar. i.e. 1 acre 60 cents, as per Ext.A1 was assigned to the plaintiff by Ext.A2. The third defendant in the suit apart from 23 cents, which is the subject matter of dispute, and which is shown as C and A plots had obtained other properties from the other defendants in the suit. 11. A commissioner was deputed to identify the property in O.S.211 of 1985. Ext.C3 is the sketch drawn by the commissioner prepared with the help of the Taluk Surveyor. One may now have a look at Ext.C1 report. Ext.C1 report mentions about the identification of the property made by him with the documents of title of the plaintiff in O.S.211 of 1995. In Ext.C1 report, which is S.A. 170 & 171/1999. 11 accompanied by a rough sketch it is mentioned that Glyrecidia stumps were seen in E F line. However, it is mentioned by the commissioner in the said report also that plot shown as A B E F lie as a compact plot. Dissatisfied by the report, a fresh report was sought for and a fresh report Ext.C3 was obtained along with Ext.C4 plan. Ext.C3 is the relevant report. It needs to be noticed. The commissioner has categorically stated that he has identified the plaint schedule property with reference to the plaint and the documents produced by the plaintiff. The commissioner measured the properties and marked the same as A, B, C, D and E. Plot A has an extent of 0.0 ¼ acres and plot B has an extent of 42 cents. They are comprised in R.S. Nos. 178/2A and 178/2B respectively. Plot C has an extent of 24 ½ cents and plot D has an extent of 63 ½ cents and they are comprised in R.S.Nos.178/3A and 178/3B respectively. E plot has an extent of 2 ½ cents in R.S. No.1789/4A. It is interesting to note that there was no request from the side of the defendants in the suit to identify their property said to S.A. 170 & 171/1999. 12 have been assigned to the third defendant by the second defendant regarding an extent of 23 cents which really forms the subject matter of the suit and identified as C plot and A plot by the commissioner. What the defendants wanted was only to measure the width of the road on the southern side of the plaint schedule property and show the disputed property separately in the plan. 12. The commissioner in his report has pointed out that the disputed plots are shown in red colour in Ext.C4 plan and shown as A and C plots. It is pointed out by the commissioner that plot A situates on the south-western side of plot C. In Ext.C3 report it is also mentioned by the Commissioner that there is nothing on ground to distinguish plot A from plot C. What is significant is that the Commissioner has categorically reported that plots A, B, C, D and E are seen lying as a compact plot and the boundaries at the site tally with the boundaries shown in the plaint. S.A. 170 & 171/1999. 13 13. It is true that after the commission report was filed, the plaint was amended to bring it in consonance with the commission report. 14. This is highlighted as an aspect by the learned counsel for the appellant to show that the plaintiff had no idea about the suit properties and that plaint was amended to bring it in consonance with the commission report. Under such circumstances relief ought not to have been granted by the plaintiff in O.S. 211 of 1995. The further contention is that the court below ought to have seen that mentioning of the southern boundary in Ext.A4 is only a bonafide mistake and that could not have gone against the contesting defendants in these cases. 15. There is little merit in the above contention. The commissioner has categorically stated that the boundaries shown in the plaint schedule tally with the boundaries noticed by him in his report and that plots A, B, C, D and E plots lie as a compact plot. The commissioner S.A. 170 & 171/1999. 14 has also noticed that the nature of improvements in all the plots are of uniform nature. They are all planted with rubber trees and they are of the same age. 16. The husband of the plaintiff in O.S. 211 of 1995 was examined as P.W.1. It is true that he says that the property obtained by the plaintiff was measured. He would assert that even though the document of title Ext.A2 shows only one acre though they had more than one acre going by the boundaries. The trial court refused to accept this plea while the lower appellate court relied on the commission report to grant a decree in favour of the plaintiff in O.S. 211 of 1995. The trial court was of the view that Glyrecidia stumps were seen in EF line in Ext.C2 sketch indicated that that was the southern boundary of the property obtained by the plaintiff in O.S.211 of 1995. However, the lower appellate court found that that could not be so. That was a mistake committed by the trial court in view of the statements contained in the commission report, namely, Exts.C3 and C4. S.A. 170 & 171/1999. 15 17. None of the defendants have a case that the properties owned and possessed by them contained rubber plantation. D.W.3, the man who really claims C and A schedule plots says that it was he who planted rubber trees in the property and what is interesting is that while his statement was that his trees are of tapping age, actually the rubber trees in the other plots are at budding stage. This ofcourse is belied by the commission report, which shows that the nature of improvements in C and A plots are identical with the one found in B, D and E plots. 18. One has to remember that the suits are for injunction alone. The question of title does not arise for consideration. One cannot omit to notice that the plaintiff in O.S. 211 of 1985 has sought to get the properties identified by the commissioner, where there was no such attempt from the side of the defendants in the said case. The attempt of the third defendant in O.S.211 of 1995 was to show that a portion of the property obtained by the plaintiff in O.S.211 of S.A. 170 & 171/1999. 16 1995 was taken for the road on the southern side and therefore she had only a lesser extent of property. The third defendant was unable to establish the said claim as could be seen from the commission report. 19. In a suit for injunction, as already stated, the relevant aspect is the possession of the person concerned as on the date of the suit. It is here that the commission report assumes significance and importance. At the risk of repetition one may notice that the commissioner has reported that plots A, B, C, D and E lie as a compact plot with similar nature of improvements. If that be so, the lower appellate court was justified in coming to the conclusion that prima facie the plaintiff in O.S.211 of 1995 is in possession of the suit properties. 20. It could not be said that the finding of the lower appellate court is either perverse or unwarranted or unjustified by the evidence on record especially when there was no attempt from the side of the defendants to get the property identified. S.A. 170 & 171/1999. 17 No question of law much less any substantial question of law arises for consideration in these appeals. These appeals are without merits and they are accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.