IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 RSA.No. 775 of 2008() --------------------- AS.135/2004 of SUB COURT, KASARAGOD OS.311/2003 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT: -------------------- K.BALAKRISHNA, S/O.KUTTIA NAIK, CRPF JAWAN BY PROFESSION, R/AT.PALLANJI HOUSE ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT PO.PANDI. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA RESPONDENT(S): --------------------------- SRIDHARA NAIK, S/O.CHOMANNA NAIK, R/AT. PALLANJI IN ADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT PO.PANDI. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.775 of 2008 = = = = = = = = = = = = = = Dated this the 31 st day of October, 2008 JUDGMENT The plaintiff in O.S.No.311 of 2003 on the file of the Munsiff's court, Kasaragod is the appellant in this second appeal. The said suit was one for injunction against trespass into the plaint schedule property which was described as 11 cents of property comprised in Survey No.694/2 part. The body of the plaint alleged that the correct survey number of the property is 695/2. After the Advocate Commissioner deputed by the trial court filed his report, the plaintiff amended the plaint so as to change the Survey Number 694/2 part, to 694/1. The boundaries of the plaint schedule property were also changed after the Commissioner's report and plan. According to the plaintiff, he is in possession of the plaint schedule property on the strength of Ext.A1 certificate of purchase issued by the competent land tribunal in favour of the plaintiff's father and the father assigned the property to him as per Ext.A2 sale deed dated 17.2.01. 2. Admittedly, the survey number shown in Ext.A1 R.S.A.No.775 of 2008 2 certificate of purchase is Survey No.694/2 part, which was the survey number originally shown for the plaint schedule property. The boundaries shown in Ext.A1 certificate of purchase are the following:- North -- Rama Naik West -- Property of plaintiff's father South -- Rama Naik East -- Ittappa Naik The same boundaries were shown in the plaint schedule property as originally filed. On the Commissioner submitting Ext.C1 report to the effect that the northern boundary is the property of the Sreedharan Naik, the plaintiff amended the northern boundary of the plaint schedule property. Even after the amendment of the plaint as above, the plaintiff's attempt before the lower appellate court and this Court was to show that the correct survey number of the plaint schedule property is Survey No.694/1B which is not the survey No. either in Ext.A1 certificate of purchase or in the plaint schedule property either before or after the amendment of the plaint. According to the Commissioner, the plaint schedule property is comprised in R.S.A.No.775 of 2008 3 R.S.No.694/1 part. It is not known as to how the trial court granted a decree to the plaintiff on these materials. 3. Aggrieved by the decree passed by the trial court, the defendant who is the paternal uncle of the plaintiff filed an appeal before the Court of the Subordinate Judge, Kasaragod as A.S.No.135 of 2004. As per the impugned judgment and decree, the lower appellate court reversed the decree passed by the trial court and dismissed the suit. Hence this second appeal. 4. It may be true that the lower appellate court was not justified in considering a case which is not even pleaded by the defendant. But then the appellant being the plaintiff will have to stand or fall on the strength of his own evidence. When the evidence before the court was so discrepant and the identity of the suit property was not established, it was not permissible for the trial court to grant a decree for injunction. It is true that the appellant is a C.R.P.F Jawan and rendering service elsewhere. But when he has come to court seeking a perpetual injunction he will have to prove his possession over the plaint schedule property after properly identifying the same. On the material before the court it cannot be said that the dismissal of the suit by R.S.A.No.775 of 2008 4 the lower appellate court is erroneous. No questions of law, much less any substantial question of law arises for consideration in this second appeal, which is accordingly dismissed in limine. I make it clear that observations, if any, regarding the title of the plaintiffs were made only incidental to the finding regarding the possession and those observations regarding title need not be taken as binding. Dated this the 31 st day of October, 2008. V. RAMKUMAR, JUDGE sj