IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 RSA.No. 266 of 2004() --------------------- AS.208/1999 of II ADDL. DISTRICT COURT, PALAKKAD OS.308/1997 of ADDL.MUNSIFF COURT, PALAKKAD ........................ APPELLANT/RESPONDENT/DEFENDANT ----------------------------------------------------------- 1. RAJAN, AGED 40 YEARS, S/O.GOPALAN, ALIAS KOSHU, CHATHAPURAKKAL HOUSE, VADAMMUMURI, KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD TALUK. 2. SREEDHARAN, AGED 39 YEARS, S/O. GOPALAN, ALIAS KOSHU, DO. DO. 3. DEVADAS, AGED 37 YEARS, S/O. GOPALAN ALIAS KOSHU, DO. DO. BY ADV. SRI.D.SREEKUMAR RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------------------------------------------- MANI, AGED 45 YEARS, S/O. PAZHANIMALA, VADAKKUMURI, KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD. ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R1 SRI.GEEN T.MATHEW FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011 ALONG WITH RSA NO.1342/2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 266 & 1342 OF 2004 =========================== Dated this the 22nd day of August,2011 JUDGMENT Appellants are the plaintiffs in O.S.253/1997 and the defendants in O.S.308/1997 on the file of Munsiff Court, Palakkad. Respondent is the plaintiff in O.S.308/1997 and the defendant in O.S.253/1997. Both the suits were filed for permanent prohibitory injunction. O.S.253/1997 was instituted first by the appellants seeking a decree for permanent prohibitory injunction contending that the plaint schedule property having an extent of 6 cents in survey No.3613/2A of Kunnanur Village of Palakkad Taluk along with some other properties were taken on lease by the grandfather of the appellants as per patta chit dated 21.8.1939 and he has been in actual RSA 266 & 1342 of 2004 2 possession and enjoyment of the property. On his death, it devolved on the father of the appellants who has been in possession of the property and later he executed a settlement deed in favour of the appellants whereunder plaint schedule property was transferred in their favour. It was contended that as there was a mistake in the survey number shown in the settlement deed, a correction deed was executed later and respondent has no right, title or possession over the plaint schedule property. Alleging that he attempted to trespass into the plaint schedule property, suit was instituted for a permanent prohibitory injunction. Respondent resisted the suit contending that appellants have no right or title or possession of the plaint schedule property and it is part of the 10 cents which is the plaint schedule property in O.S.308/1997. It was contended that the property was obtained on lease by the father of the respondent and he obtained jenm right from the Land Tribunal and Ext.X1 purchase certificate was also RSA 266 & 1342 of 2004 3 issued in his favour and appellants have no manner of right or possession over the plaint schedule property and therefore the suit is to be dismissed. Respondent instituted O.S.308/1997 in respect of plaint schedule property, having an extent of 10 cents including the 6 cents involved in O.S.253/1997, contending that the property was obtained by his father on lease and subsequently the father obtained purchase certificate from the Land Tribunal and later he executed a settlement deed and under the settlement deed respondent has title to the plaint schedule property and he is in possession of the same and appellants instituted O.S.253/1997 and is attempting to trespass into the plaint schedule property and therefore they are to be restrained by a permanent prohibitory injunction from committing trespass. Appellants resisted the suit reiterating the same contentions raised in O.S.253/1997 and contending that father of the respondent was the tenant of only 4 cents and the remaining 6 cents belongs to the appellants and RSA 266 & 1342 of 2004 4 hence respondent is not entitled to the decree sought for. 2. Unfortunately though the suit properties and the parties are the same, both suits were separately tried and disposed. O.S.308/1997 was disposed by judgment dated 30.10.1999. Learned Munsiff on the evidence found that Ext.X1 the purchase certificate obtained by the father of the respondent contained interpolation on the southern boundary and Ext.B1 the certified copy of the same purchase certificate obtained by the appellants establishes the interpolation and hence found that respondent is not entitled to the decree for injunction and O.S.308/1997 was dismissed. O.S.253/1997 was disposed later by judgment dated 19.7.2001 by another Munsiff. Learned Munsiff found that plaint schedule property in O.S.253/1997 is in the possession of the respondent and there existed a house therein and DW2(who was examined as PW3 in O.S.308/1997) was the tenant of that house and her evidence establishes that it was obtained RSA 266 & 1342 of 2004 5 on lease from the respondent. On the evidence it was found that appellants did not establish their possession of the plaint schedule property. The suit was dismissed. 3. Respondent challenged the dismissal of O.S.308/1997 before the District Court, Palakkad in A.S.208/1999. Appellants challenged the dismissal of O.S.253/1997 before the District Court , Palakkad in A.S.321/2001. Both the appeals were separately disposed. Learned Additional District Judge on re-appreciation of the evidence found that the evidence establish that father of the respondent was the tenant under the father of the appellants and Land Tribunal had assigned jenm right in respect of the lease hold property in favour of the father of the respondent. Though the District Judge noted interpolation on the southern boundary of Ext.X1 purchase certificate, which was not there in Ext.B1 the certified copy issued from the Land Tribunal, on the evidence it was found that the purchase certificate obtained is in RSA 266 & 1342 of 2004 6 respect of 10 cents which is inclusive of the plaint schedule property in O.S.253/1997. District Judge also found that evidence of PW3 in O.S.308/1997 (who was examined as DW2 in O.S.253/1997) establish that the house in the disputed portion of the property was in the possession of PW3 and she obtained the property on lease from the respondent and the evidence establish that appellants are not in possession of the plaint schedule property and the plaint schedule property is in the possession of the respondent. Hence A.S.208/1999 was allowed and a decree for permanent prohibitory injunction was granted in O.S.308/1997. Finding that the trial court appreciated the evidence properly and appellants did not establish that they are in possession of the plaint schedule property it was held that appellants are not entitled to the decree for injunction. A.S.321/2001 was dismissed confirming the judgment in O.S.253/1997. The appeals are filed challenging the decree and RSA 266 & 1342 of 2004 7 judgment in the appeals. 4. R.S.A.266/2004 is filed against the decree granted in O.S.308/1997. The appeal was admitted formulating the following substantial questions of law. 1) Whether acceptance and reliance of Ext.X1 purchase certificate having unauthenticated and unauthorised interpolation as regards boundaries of plaint schedule property which were corroborated by unauthorised entry stultify the entire case of the respondent plaintiff.? 2.Whether non consideration of irrelevant materials as crucial and vital documents RSA 266 & 1342 of 2004 8 for determining rights of parties vitiates the impugned judgments and decree? R.S.A.1342/2004 was filed challenging the concurrent decree in O.S.253/1997. The appeal was admitted formulating the same substantial questions of law formulated in R.S.A.266/2004. 5. Learned counsel appearing for the appellants and respondent were heard. 6. Though the plaint schedule property in O.S.253/1997 is only 6 cents, it is admitted that it forms part of the plaint schedule property in O.S.308/1997 having an extent of 10 cents. The property admittedly originally belonged to the father of the appellants. The fact that the father of the appellants granted lease in favour of the father of the respondent is not disputed. It is also not disputed that father of the appellants inherited the property from his father, who obtained the property along with the other RSA 266 & 1342 of 2004 9 properties on lease from the jenmi and father of the appellants was thus the intermediary. It is also admitted that suo motu proceedings SM 1027/1974 was initiated by the Land Tribunal in respect of the lease hold property, in favour of the father of the respondent. By Ext.A1 order, Land Tribunal assigned the jenm right of the lease hold property in favour of the father of the respondent. Ext.X1 (Ext.B1 being the certified copy) is the purchase certificate issued by the Land Tribunal pursuant to Ext.A1 order. Though the southern boundary in Ext.B1 is shown as paramba, Ext.X1 purchase certificate shows that an interpolation was made on southern boundary as “Veerayyan house and Ettilum” in another ink. It is for this reason the learned Munsiff did not rely on Ext.X1 and ultimately non-suited the respondent. As rightly found by the first appellate court the fact that Land Tribunal assigned jenm right in respect of 10 cents of the lease hold property out of the property originally obtained by their RSA 266 & 1342 of 2004 10 grandfather and it was known to the appellants and their father and none of them challenged the assignment of jenm right over 10 cents in favour of the father of the respondent are not disputed. There is also no case for the appellants that the 10 cents claimed by the father of the respondent before the Land Tribunal, for which Ext.A1 order was passed, is in respect of the undisputed 4 cents which lies to the north of the plaint schedule property in O.S.253/1997 and another 6 cents to its further north. On the other hand, when the case of the respondent is that 10 cents was obtained on lease by his father and he was in the possession of the ten cents which is the plaint schedule property in O.S.308/1997, appellants are contending that the lease was only in respect of 4 cents. At the same time when the first appellant was examined as DW1 in O.S.308/1997, the case was different. According to DW1 the lease was in respect of 7 cents and appellants are in possession of the remaining 3 cents. It is RSA 266 & 1342 of 2004 11 pertinent to note that the case was not that the lease was in respect of 4 cents and appellants are in possession of remaining 6 cents as pleaded. Instead the case was that they are only in possession of 3 cents which lies to the south of the 7 cents which was in the possession of the father of the appellants as a tenant. Therefore when it was the case of the respondent that the lease was in respect of 10 cents, the case pleaded by the appellants was that the lease was in respect of 4 cents, but at the time of evidence it was the case that the lease was in respect of 7 cents. At the same time Ext.A1 order of the Land Tribunal as well as Ext.B1 purchase certificate establishes that jenm right was assigned in respect of 10 cents. In the light of this evidence, courts below were fully justified in holding that respondent has title to 10 cents and it is the plaint schedule property in O.S.308/1997 inclusive of the plaint schedule property in O.S.253/1997. 7. PW3 was examined in O.S.308/1997 to prove RSA 266 & 1342 of 2004 12 possession of the plaint schedule property by the respondent. PW3 was admittedly residing in a house in the disputed portion of the plaint schedule property. The evidence of PW3 is that she has been residing in that house for about 20 years and the building was obtained on lease from the respondent. Though it was suggested to PW3 that the lease was granted by the father of the appellants PW3, denied the case. PW3 deposed that the bathroom, latrine and the stone lying therein were being used by PW3 while she was a tenant of that house. That evidence of PW3 was not challenged. It was not even suggested that PW3 was not using the said bathroom and latrine. But when DW1 was examined it was deposed that PW3 was not using the said bathroom and latrine. He also deposed that the stone used for washing, was placed there subsequently. But such a case was not even suggested to PW3. When the entire evidence is appreciated in the proper perspective, it can only be found that respondent has been in possession of RSA 266 & 1342 of 2004 13 the plaint schedule property and appellants are not in possession of the plaint schedule property. In such circumstances, the concurrent finding of fact in O.S.253/1997 that appellants have not established their possession of the plaint schedule property and the finding of the first appellate court in A.S.208/1999 that respondent established possession of the plaint schedule property in O.S.308/1997 and is entitled to a decree for injunction is perfectly correct and warrants no interference. Appeals are therefore dismissed. No costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006