IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 594 of 2010()
1. PRASAD, S/O.VIKRAMAN,
... Petitioner
2. V.SANAL KUMARI, ARUNDHATHY MANDIRAM,
3. V.ANITHA, ARUNDHATHY MANDIRAM,
4. G.GAYATHRI, D/O.VASANTHA,
5. YAMUNA, ARUNDHATHY MANDIRAM,
6. JYOTHY, ARUNDHATHY MANDIRAM,
Vs
1. VIJAYAKUMAR, S/O.MADHUSOODHANAN,
... Respondent
2. SHYLA, W/O.VIJAYAKUMAR,
3. RADHAKRISHNAN, S/O.PADMANABHAN,
4. SARANGADHARAN, S/O.PADMANABHAN,
For Petitioner :SRI.P.KESAVAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :27/07/2010
O R D E R
P.BHAVADASAN, J.
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RSA No.594 of 2010-D
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Dated 27th July 2010
Judgment
Faced with the concurrent findings against them,
the defendants in OS No.874/03 have come up in appeal.
The parties and facts are hereinafter referred to as they
are available before the Trial Court.
2. The plaintiffs claimed to be in absolute
possession and enjoyment of the plaint schedule property,
which they claim to have been obtained under Exts.A1 and
A6. They were residing away from the property and the
property was being looked after by their children. It is
claimed that the property has well laid compound wall on
all the four sides. According to the plaintiffs, taking
advantage of the absence of the plaintiffs from the said
property, the defendants used to pluck tender coconuts
from the coconut trees in the property. In spite of several
warnings, they continued the said practice. On 28.05.2003,
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the defendants demolished a portion of the compound wall
on the western side of the property and tried to trespass
into the property. Timely intervention by the plaintiffs
prevented the trespass by the defendants. Apprehending
further trespass into the property, the suit was laid.
3. Defendants 1 and 2 resisted the suit.
According to them, the plaintiffs have no manner of right
over the suit property. They say that the documents relied
by the plaintiffs are fraudulent and they did not derive any
right over the suit property. The suit property, according to
them, is part of 31 cents of land jointly owned by the first
defendant, her brothers and sisters. The plaintiffs are total
strangers to the defendants. There was an earlier suit as
OS No.290/1969 in respect of 5 cents of land and the said
suit was dismissed. That suit was laid by the predecessor-
in-interest of the plaintiffs. Pointing out that the plaintiffs
have no manner of right over the suit property, they prayed
for dismissal of the suit.
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4. The Trial Court raised necessary issues for
consideration. The evidence consists of the testimony of
PWs 1 and 2 and documents marked as Exts.A1 to A7
from the side of the plaintiffs. The defendants did not
examine any witness, but they produced Exts.B1 to B5.
Exts.C1 and C1(a) were the Commissioner’s report and
plan and CW1 was examined as court witness.
5. The Trial Court, on an evaluation of the
evidence on record, found that though there was a mis-
description of the property in the plaint, the Commissioner
has properly identified the property and there was not much
dispute regarding the identity of the property. The Trial
Court also found that the plaintiffs have title and
possession over the property. It was also found that the
defendants have no manner of right over the suit property.
On the basis of these findings, the suit was decreed.
6. The matter was carried in appeal by the
defendants as AS No.392/06 before the District Court,
Thiruvananthapuram. The District Court, on an
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independent consideration of the evidence before it, came
to the same conclusion as that of the Trial Court and
dismissed the appeal. Hence the Second Appeal.
7. The learned counsel for the appellants
pointed out before this Court that being a suit for injunction,
the primary concern is one of possession and the identity
of the property. It is incumbent on the part of the plaintiffs
to show that they are in possession of the property
exclusively and also that they are entitled to the property
over which they laid their claim. Drawing attention of this
Court to the description of the plaint schedule property in
the plaint, it was pointed out that it does not tally with the
description of property in the Commissioner’s report and
the property lies elsewhere. It is sufficient to non-suit the
plaintiff. Unfortunately, the court below omitted to note this
vital aspect which has resulted in a wrong decision, it is
contended.
8. Though the above argument may look
attractive at the first blush, it can be seen to be without any
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basis whatsoever on a close scrutiny of the evidence on
record. The Commissioner’s report and evidence was
made available for perusal. It is true that the plaintiffs have
sated that their property is situated on the northern side of
Shanghumugham Road. As per the Commissioner’s report,
the property lies on the southern extremity on the eastern
side of Anayara Road. This is taken advantage of by the
learned counsel for the appellant to show that the property
has not been properly identified. It is seen that the courts
below have considered this aspect in considerable detail
and found that it is not of any significance or consequence.
The Commissioner pointed out that he had inspected the
site three times and had identified the property. Both the
defendants and the plaintiffs were present and they had no
dispute regarding the identity of the property.
9. The lower Appellate Court has found that
there is no road immediately adjacent on the southern side
of the plaint schedule property. But the main road from
which Petta-Anayara Road starts is on the southern side of
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the plaint schedule property a little away and that would
reach Sanghumugham Road. This slight discrepancy as
observed by the lower Appellate Court is not sufficient to
non-suit the plaintiffs. The Commissioner has reported that
the plaint schedule property has compound wall on all the
four sides. The courts below were inclined to hold that the
plaintiffs have proved their title and possession of the
property. Accordingly, a decree was granted in their favour.
The findings are essentially based on evidence on record.
No substantial questions arise for consideration in this
appeal. It is also not shown that the findings are either
perverse or unwarranted by the evidence on record. The
appeal has to fail. However, it is made clear that this being
a suit for injunction, the issue regarding title will not be
deemed to have been adjudicated in this proceeding. The
parties will be free to agitate their claim regarding title in
independent proceedings.
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The appeal is dismissed subject to the above
observations.
P.BHAVADASAN, JUDGE
sta
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