IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 406 of 1994()
1. PALLIPARAMBATH MARIYUMMA
... Petitioner
Vs
1. ABDUL AZEEZ
... Respondent
For Petitioner :SRI.M.P.ASHOK KUMAR
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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S.A.No. 406 OF 1994
............................................
DATED THIS THE 14th DAY OF NOVEMBER, 2007
JUDGMENT
Defendant in O.S.223 of 1988 on the file of Munsiff Court,
Taliparamba is the appellant. Husband of the deceased plaintiff
is the respondent. Plaintiff instituted the suit seeking a decree
for permanent prohibitory injunction contending that plaint A
schedule property belongs to him under Ext.A1 gift deed dated
26.11.1956 and plaint B schedule property is the western portion
of plaint A schedule property and plaintiff is in possession of the
property which lies further west of plaint B schedule property
and she has no right over the B schedule property and she is
attempting to trespass into the plaint schedule property. It was
contended that appellant has attempted to demolish the
boundary ridge separating plaint B schedule property from the
property of appellant. A Commission was taken out.
Commissioner submitted Ext.C2 report. Thereafter plaint was
got amended claiming a decree for mandatory injunction and
damages contending that appellant has completely demolished
the boundary ridge and also cut and removed trees standing
there and thereby caused damages. Appellant resisted the suit
SA 406/1994 2
contending that plaintiff has right only over the property in
R.s.26/11 and the property of appellant is in R.S.26/12 and there
was dispute regarding the survey boundary which was settled by
Taluk Surveyor and it was found that the disputed property is the
property of appellant and appellant did not attempt to trespass
into the said property or commit any damages as alleged and the
suit is only to be dismissed. Commissioner subsequently
inspected the property once again and submitted Ext.C3 report
and C1 plan. Plaint A schedule property was demarcated as plot
C and plaint B schedule property as plot A1 and property of
appellant as plot A. Trial court, on the evidence of Pws 1 and 2,
DW1, Ext.A1 and A2 and Ext.B1 to B4, dismissed the suit holding
that appellant did not establish her right and possession over
plaint B schedule property. Respondent challenged the decree
and judgment before Sub Court, Payyannur in A.S.107 of 1990.
When the appeal was pending, original plaintiff died and
respondent husband being the legal heir was impleaded as
additional second appellant. Appellant filed a cross-objection
contending that trial court should have granted cost also while
dismissing the suit. First appellate court as per judgment dated
24.2.1994 found that plaint B schedule property is plot A1 as
SA 406/1994 3
marked in Ext.C1 plan and reports of the Commissioner show
that a ridge was existing on the western boundary of plot A1
separating plot A and property of appellant and trees were
standing therein and the ridge was demolished and the trees
were cut by appellant and the ridge was the separating boundary
between the property of appellant and respondent and plaintiff
has been in possession of the disputed plaint B schedule
property namely plot A1 and therefore she is entitled to the
decree for mandatory and prohibitory injunction. Appeal was
allowed and suit was decreed. It is challenged in the second
appeal.
2. Second appeal was admitted formulating the following
substantial questions of law.
1) Is not the burden on the plaintiff to prove possession of the
property to get a decree for prohibitory injunction.
2)Whether first appellate court was correct in granting a decree
for injunction in respect of R.S.26/12, which is not the subject
matter of the suit.
3)Whether first appellate court was justified in granting a
mandatory injunction in the absence of evidence to prove the
existence of the alleged ridge on the western boundary of the
SA 406/1994 4
disputed property.
3. Learned counsel appearing for appellant and respondent
were heard. The argument of the learned counsel appearing for
appellant is that respondent has no right over any portion of the
property comprised in R.S.26/12 and under Ext.A1, he has title
to only the property in R.S.26/11 and plaint B schedule property
which is the disputed plot is in R.S.26/12 and therefore first
appellate court should have found that respondent has no right
over the plaint schedule property and the disputed property
forms part of the property of appellant and therefore the decree
granted is unsustainable. It was also argued that there is no
evidence to prove that a ridge was existing separating the two
properties or that it was demolished by appellant and in such
circumstances, the decree granted is unsustainable.
4. Learned counsel appearing for respondents pointed out
that first appellate court elaborately appreciated the evidence
and relying on Ext.C2 and C3 reports, it was found that a ridge
was in existence on the western boundary of the disputed plaint
B schedule property, which was serving as the boundary
separating the property of respondent and appellant. It was
pointed out that existence of the trees, which were admittedly
SA 406/1994 5
cut by appellant was proved by Ext.C2 and C3 reports and it
establish that the ridge was demolished subsequently by
appellant to anex the disputed portion of the property and
appellant has no right to do so and first appellate court rightly
granted the decree and appeal is only to be dismissed.
5. True, under Ext.A1, the original plaintiff obtained the
property comprised in R.S.26/11. But Ext.A1 shows that though
the property is in R.S.26/11, it is comprised within the
boundaries and within the measurements of 19 = X 23 = six
feet koles. The western boundary of the property covered under
Ext.A1 is shown as the property in the possession of appellant.
Appellant did not produce the document relating to her property.
Learned Sub Judge, on appreciation of evidence, found that a
ridge was serving as the boundary separating the property
obtained by respondent under Ext.A1 and the property of
appellant which lies to its west. The fact that trees were existing
on the ridge probabilise the case of respondent that the ridge
was a common boundary between the two properties. Ext.C2
report submitted by the Commissioner after inspection of the
property on the date of institution of the suit, establish that an
attempt was made just before the institution of the suit to
SA 406/1994 6
remove the ridge by cutting the trees. Ext.C3 report submitted
by the Commissioner later shows that when Commissioner
inspected the property subsequently ridge was completely
removed and the area to the east of western ridge and plot C was
tilled. Ext.C3 report also shows that before the Commissioner
appellant admitted cutting of the trees from the ridges and tilling
of the soil was carried out by appellant. In such circumstances,
no further evidence is necessary to prove that ridge was
demolished and trees on the ridge were cut and removed by
appellant. It is on that basis first appellate court found that the
demolition of the ridge was by appellant.
6. Added to this, first appellate court found that Ext.B3
adangal extract as well as tax receipts produced by appellant
show that appellant has been in possession of only 80 cents. Plot
A is admittedly in the possession of appellant. It is having an
extent of 80 cents. If the disputed plot A1, having an extent of 1
> cents is also taken as part of the property of appellant, the
total extent would be 81 > cents. Therefore payment of tax by
appellant for 80 cents as shown in the adangal extract prove that
appellant is in possession of only 80 cents. The existence of a
ridge separating the disputed plot A1 from plot A, as rightly
SA 406/1994 7
found by first appellate court, establish that the demolished
ridge which was existing on the western boundary of Ext.A1 was
the common boundary separating the property of appellant and
respondent. The property which lies to the east of that ridge has
been in the possession of the plaintiff as part of the property
obtained under Ext.A1. Therefore though the disputed plot A1 is
in R.S.26/12 and Ext.A1 only shows that the property is in
R.S.26/11, evidence establish that respondent has been in
possession of the disputed portion comprised in R.s.26/12 also. It
is on that basis the decree was granted. I do not find any merit in
the appeal. It is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-
SA 406/1994 8
M.SASIDHARAN NAMBIAR, J
SA 406/1994
JUDGMENT
14.11.2007