IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1053 of 2009()
1. SUBBA NAIKA @ SUBBAYYA NAIKA, AGED
... Petitioner
Vs
1. SAROJINI, AGED 59 YEARS,
... Respondent
2. K.T.KRISHNAPPA, AGED 30 YEARS,
For Petitioner :SRI.T.MADHU
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/01/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1053 of 2009
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Dated this the 6th day of January, 2010.
JUDGMENT
Respondents/plaintiffs claimed that plaint A schedule, 1.58 acres was
acquired by Battya Naika as per order in L.A.No.39 of 1967 and on his death, it
devolved on the respondents. Appellant/defendant has some property adjoining
to plaint A schedule on its southern side. Alleging that appellant is attempting to
trespass, respondents sued for decree for prohibitory injunction. Appellant
denied that plaint A schedule was acquired by Battya Naika and on his death it
devolved on the respondents. According to the appellant, a portion of plaint A
schedule is in the possession of Krishna Naika. Battya Naika has borrowed
Rs.30,000/- from the said Krishna Naika and as security a portion of plaint A
schedule was given into the possession of Krishna Naika. Original document of
title was given to the said Krishna Naika. Appellant is in possession of the
property scheduled as ‘X’ in the written statement since the last 40 years. He
claimed to have title by adverse possession and law of limitation. Trial court
found against the claim of appellant, held that respondents are in possession of
the suit property and granted decree. That was confirmed by the first appellate
court and hence this Second Appeal urging by way of substantial question of law
whether the courts below were justified in accepting and acting upon Ext.C1 and
whether in the absence of any evidence courts below were justified in granting
relief in favour of the respondents particularly as there is no definite boundary
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between plaint A schedule and property belonging to the appellant. It is
contended by learned counsel that in the above circumstances courts below
were not justified in granting relief in favour of the respondents.
2. Respondents have produced patta dated 25.5.1972 issued in
L.A.No.39 of 1969 in favour of Battya Naika in respect of the 1.58 acres and
marked Ext.A1. Ext.A2 is the receipt dated 29.9.2005 for payment of revenue for
the said property by the respondents. Respondent No.2 has given evidence as
PW1 and stated about their possession of the suit property. Respondents have
claimed that there was mud wall on the eastern portion of the suit property.
Exts.C1 and C2 are the report and plan submitted by the advocate
commissioner. Courts below found that boundary described in Exts.C1 and C2
tallied with the description of plaint A schedule property in Ext.A1. Appellant
when examined as DW1 stated that Battya Naika has executed a power of
attorney in favour of Krishna Naika and that himself is in possession of the
property. He however did not pay tax for any portion of plaint A schedule.
According to him, Krishna Naika has filed O.S.No.194 of 2006 against the legal
representatives of Battya Naika in respect of the alleged loan transaction of the
year 1996.
3. The question for consideration is whether respondents are in
possession of the suit property. Appellant has no claim that he is in possession
of any portion of suit property. Being a suit for injunction appellant cannot plead
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jus tertii, a plea that neither the respondents nor himself is in possession of the
property, but a third person is in possession. This being a suit for injunction
what is required to be considered is only whether respondents are in possession
of the suit property. That possession is proved by Exts.A1 and A2 and the
descriptions in Exts.C1 and C2. Advocate commissioner has reported that there
is no boundary within plaint A schedule property. Hence possibility of any
portion of the schedule property being in the possession of another person
does not arise. At any rate, it is not necessary in this case to dwelve into the
question whether Krishna Naika may have any claim against the respondents
or on any portion of the suit property. That is a matter which can be agitated in
appropriate proceedings between them. Courts below found that respondents
are in possession and granted injunction against the appellant. That is a finding
of fact based on evidence on record and required no interference. No
substantial question of law as urged in the memorandum of appeal do arise for
consideration.
The Second Appeal is dismissed in limine.
THOMAS P.JOSEPH,
Judge.
cks