IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 SA.No. 1 of 1996(A) ---------------------------- AS.39/1994 OF ADDITIONAL SUB COURT, THALASSERY OS.108/1992 OF MUNSIFF COURT, THALASSERY .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------- *1. P.V. KUNHIKANNAN VYDIAR, S/O.KORAN, AGED 55 YEARS, KARINTHAVEETTIL, PANUR AMSOM DESOM, PANOOR, TELLICHERRY. *(DIED) * ADDL. APPELLANTS 2 TO 5 IMPLEADED ADDL. A2: K.V. MADHAVI, W/O.LATE KUNHIKANNAN VYDIAR, KARINTHAVEETTIL, PANOOR AMSOM DESOM, KANNUR DISTRICT. ADDL. A3: JAYABHADURI, RESIDING DO. ADDL. A4: JAYADEEP, RESIDING DO. ADDL. A5: AMRUTHA, RESIDING DO * ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER THE ORDER DATED 03/06/2009 IN I.A.973/2009. BY ADV. SRI.CIBI THOMAS. RESPONDENT/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. PALAKKANDIYIL HYMA, W/O.C.K. KUMARAN, AGED 33 YEARS, TEACHER, MANSSA CHAITHANYA, P.O. PANOOR. 2. C.K. KUMARAN, MASTER, S/O.KANNAN, TEACHER, AGED 41 YEARS, -DO- -DO-. SA.No. 1 of 1996(A) **3. PALAKKANDIYIL PRADEEPAN, S/O.KANNAN, AGED 30 YEARS, -DO- . **(DIED) **SUPPLEMENTAL RESPONDENTS 4 TO 6 IMPLEADED 4. SHEEJA, W/O.PRADEEPAN, AGED 35 YEARS, TEACHER, MOOZHIKARENTAVIDA HOUSE, PANOOR, THALASSERY. 5. ANOOP, S/O.LATE PRADEEPAN, AGED 8 YEARS, (REPRESENTED BY MOTHER, THE 4TH SUPPLEMENTAL RESPONDENT SHEEJA). 6. ANAKHA, D/O.PRADEEPAN, AGED 4 YEARS, (REP. BY MOTHER THE 4TH SUPPLEMENTAL RESPONDENT SHEEJA). ** SUPPLEMENTAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD RESPONDENT AS PER ORDER DATED 25/06/2004 IN I.A.299/2003. R1 & R2 BY ADV. SRI.K.V.PAVITHRAN, SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.1 of 1996 ------------------------------------- Dated this the 22nd day of June 2011 Judgment The defeated plaintiff has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for injunction. The plaintiff claimed to have obtained the plaint schedule property as per Ext.A1 dated 17.04.1969. According to him, the property was having compound walls on all the sides of the property. There is also an anichal on the western side in between the boundary walls of the property of the plaintiff and that of the defendant. Apprehending trespass by the defendant, the suit was laid. 3. The defendants resisted the suit. They denied the allegation of trespass. They disputed that there is an anichal on the western side of the plaint schedule property. According to them, the plaintiff was trying to enclose a SA 1/96 2 portion of the property belonging to them. On the basis of these contentions, they prayed for dismissal of the suit. 4. It is seen that during the pendency of the suit, an interlocutory application was moved by the plaintiff, seeking to have the extent of property shown as 10 cents instead of 9 cents. 5. On the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B5 marked. Exts.C1 to C4 commissioner's report and plan were also marked. 6. The trial court, on an evaluation of the evidence, found that the plaintiff has not been successful in establishing the case put forward by him and accordingly dismissed the suit. 7. The matter was carried in appeal by the plaintiff by filing AS No.39/94 before the Sub Court, SA 1/96 3 Thalassery. The lower appellate court dismissed the appeal, confirming the judgment and decree of the trial court. That brings the plaintiff before this court. 8. Notice is seen issued on the following questions of law raised in the second appeal : a)Whether the lower appellate court was correct in law in stating that the relief of injunction cannot be granted against a defendant who trespass and shows that he is in possession of the encroached portion of the plaint schedule property during the pendency of the suit ? b)Whether the appellate court is correct in law in stating that the remedy of the plaintiff even in a case where a portion of the property has been encroached upon during the pendency of the suit is to sue for recovery ? Cannot the court in such error should the relief in favour of the plaintiff ? c) Whether the encroachment and demolition of the boundary wall after the filing of the suit and reconstruction of the wall to include a portion of the plaint SA 1/96 4 schedule property to that of the defendant should be held to be legal possession of the defendant ? d)Whether in the facts and circumstances of the case, courts below correct in law in refusing an injunction against trespass and demolition of the boundary especially when it is admitted that boundary walls were constructed all around the property by the appellant soon after purchase ? 9. The learned counsel for the appellant contended that both the courts below have misdirected themselves on facts and in law. The learned counsel went to point out that the plaintiff had sought the relief of injunction against the defendants but the courts below were of the opinion that the injunction sought cannot be granted and the plaintiff will have to sue for recovery of possession of the property which has been trespassed upon and reduced into their possession by the defendants. Relying on the decision reported in Rameshwar v. Jot Ram (AIR 1976 SC 49), it was contended that the state of affairs as SA 1/96 5 on the date of the suit is the relevant fact and the subsequent events cannot annihilate his rights. The issue involved was to ascertain whether the boundary wall has been shifted towards east as alleged by the plaintiff. Instead of undertaking that exercise, the lower appellate court has simply gone on the premises that once it is shown that there is trespass, then the only remedy available to the plaintiff is to seek recovery of possession. According to the learned counsel, the judgment and decree of the courts below are unsustainable in law. 10. There seems to be considerable force in the above submissions. It is true that the plaint shows an extent of 9 cents. The plaint was later amended and the extent of land was shown as 10 cents. The real issue was regarding the position of the compound wall on the western side of the plaint schedule property. The plaintiff says that it was on the line EF shown in Ext.C4 plan and his further case was that after the suit was instituted, the defendants had trespassed into a portion of his property and put up a SA 1/96 6 compound wall on the eastern side and now, it is at the line DC. The lower appellate court has not addressed the question as to whether the claim made by the plaintiff that the compound wall at the time of instituting the suit was on line EF. If as a matter of fact, the compound wall at the time of institution of the suit was along the line EF and the newly constructed wall is on line CD, obviously, relief could have been granted to the plaintiff. The ground relied on by the lower appellate court that even assuming that there is a trespass, the proper remedy of the plaintiff is to file a suit for recovery of possession, cannot be countenanced. In the decision reported in 1976 SC 49, it has been specifically stated that the state of affairs as on the date of institution of the suit is the determining factor and the subsequent events cannot affect the plaintiff's rights. The real issue is as to whether the plaintiff had succeeded in proving that the western boundary at the time of institution of the suit was EF line. This has not been considered by the lower appellate court and it has resulted in miscarriage SA 1/96 7 of justice. The real issue involved was the position of the western compound wall at the time of institution of the suit and whether the allegation that it has been subsequently shifted by the defendants towards east is established by evidence adduced by the plaintiff. In the result, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and the matter is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 04.08.2011. The lower appellate court may make every endeavor to dispose of the suit as expeditiously as possible, at any rate, within three months from the date of appearance of parties before it. There will be no order as to costs. P.Bhavadasan, Judge sta SA 1/96 8 SA 1/96 9