IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 841 of 2000(A)
1. PARVATHY AMMA
... Petitioner
Vs
1. NARAYANAN
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :01/02/2008
O R D E R
K.T. SANKARAN, J.
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S.A. No. 841 OF 2000
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Dated this the 1st February, 2008
J U D G M E N T
The plaintiffs in O.S.No.667 of 1995 on the file of the court of the II Addl. Munsiff,
Thrissur are the appellants in this Second Appeal. The suit filed by them for permanent
prohibitory injunction was dismissed by the trial court. On appeal by them as A.S.No. 168
of 1996, the District Court dismissed the appeal. However, it was observed that the
remedy of the plaintiffs is to sue for fixation of boundary or such other reliefs based on
the title.
2. The plaint schedule property is having an extent of 39 cents. On the western
side of the plaint schedule property, the property of the defendants is situated. There is a
well on the boundary separating the two properties . According to the plaintiffs, the well
belongs to the plaintiffs as well as the defendants and both of them are entitled to take
water from the well. According to the defendants, the well belongs to them and that the
plaintiffs have no right over the well.
3. The prayer in the suit is for an injunction restraining the defendants from
trespassing upon the plaint schedule property, from cutting and removing the trees and
other improvements in the property and from constructing a compound wall or other
boundary obstructing the user of the well. The plaintiffs claim title in respect of an extent of
39 cents as per document No. 4197 of 1950 executed in favour of Sankaran Ezhuthassan,
the predecessor of the plaintiffs . After the death of Sankaran Ezhuthassan, the plaintiffs
are in possession of the property along with two other children of Sankaran Ezhuthassan.
It is alleged in the plaint that the well is situated in the boundary separating the property of
the plaintiffs and that of the defendants and that the well belongs to both the parties in
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equal rights. The plaintiffs also contended that they are using the well in question.
4. The defendants contended, inter alia, in the written statement filed by them that
a total extent of 70 cents of land was assigned in favour of Krishnan Ezhuthassan. Out of
the extent of 70 cents, an extent of 23 = cents was assigned by Krishnan Ezhuthassan in
favour of the defendants. Thereafter, the rest of the land on the eastern side of the
defendants’ property came to vest in the possession of the plaintiffs. The defendants also
contented that out of the total extent of 70 cents, 1/3 portion came into the possession of the
defendants and 2/3 is in the possession of the plaintiffs. Thus, the plaintiffs are in
possession of 46 = cents and defendants are in possession of 23 = cents. The defendants
also raised a contention that the well is not in the boundary separating the properties of the
plaintiffs and the defendants. According to the defendants, the well belongs to them and
the plaintiffs have no right over the well.
5. Since the suit was one for permanent prohibitory injunction, apparently, no
question of title was considered by the courts below. Issue regarding the title was also not
raised in the suit. Though issue no.2 was raised as: “In whose property, is the well in
question situated?”, the trial court has not considered the question of title to the well, but
proceeded on the basis of possession. It was held by the trial court that the plaintiffs had
not cared to get the properties measured with the help of records and therefore, they are
not entitled to get a decree for injunction. On that finding, the trial court held thus:
“Under these circumstances, the only probable conclusion is that the well
is lying in the property of the defendants themselves.”
This was not a decision on the question of title. The trial court was answering the question
of possession and was deciding the question as to whether the plaintiffs were entitled to get
injunction.
6. The trial court considered the fact that the property was measured by the Taluk
Surveyor who was examined as D.W.2. He produced Ext.X1 file which would indicate
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that the property was measured in accordance with the survey records before the suit was
filed and the boundaries were shown to the parties. The plaintiffs suppressed this fact,
though notice was received by them before conducting the survey. It was held by the trial
court that the plaintiffs did not approach the court with clean hands and that they
suppressed material facts. The equitable relief of injunction was thus denied to them.
7. The appellate court held that there is no evidence to show that there is any
specific boundary demarcating the property of the plaintiffs and that of the defendants. It
was held that though the plaintiffs claimed that they have been taking water from the well
in question, there is no reliable evidence to prove the same. It was also held by the
appellate court that though the plaintiffs claimed that the measurements made by D.W.2.,
Taluk Surveyor were incorrect, no steps were taken by them to get the properties
measured. Though a Commissioner was appointed, the properties were not measured in
accordance with the survey and no steps were taken by the plaintiffs to get a proper report
and a plan. The appellate court concluded by holding thus:
“The remedy of the appellants is to sue for fixation of boundary or such
other reliefs as the case may be, based on the title claimed by them over
the disputed portion.”
Evidently, this finding was arrived at by the appellate court on the basis that in the present
suit for injunction, the question of possession alone was considered by the trial court . The
appellate court left open the question of title to be decided in a properly constituted suit. It
cannot be said that the courts below committed any error of law in dismissing the suit for
injunction. The courts below considered the oral and documentary evidence in detail and
held that the plaintiffs have not established the identity of the plaint schedule property
correctly and they have failed to prove possession. The relief of injunction was therefore
rightly declined.
8. Even after noticing that the remedy of the plaintiffs is to file a suit for fixation of
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boundary or to file a suit based on title, the appellate court has observed in paragraph 15 of
the judgment thus:
“There is also no evidence to show that the appellants have any right
over the well in question”.
The learned counsel for the appellants is right in his submission that having relegated the
parties to a properly constituted suit, the appellate court was not justified in making such an
observation.
In the aforesaid circumstances, I am not inclined to interfere with the concurrent
findings of the courts below. The Second Appeal lacks merit and it is accordingly
dismissed. However, the aforesaid observation/finding in paragraph No.15 of the judgment
of the appellate court as regards the right of the plaintiffs over the well shall stand vacated.
K.T. SANKARAN,
JUDGE.
lk
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K.T. SANKARAN, J.
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S.A. No. 841 OF 2000
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Dated this the 1st February, 2008
J U D G M E N T