IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 82 of 1998(B)
1. C.KUNHIKANNAN
... Petitioner
Vs
1. K.GOPI
... Respondent
For Petitioner :SRI.S.VIDYASAGAR
For Respondent :SRI.P.K.SURESH KUMAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :28/10/2010
O R D E R
HARUN-UL-RASHID,J.
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S.A. NO. 82 OF 1998
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DATED THIS THE 28TH DAY OF OCTOBER, 2010
JUDGMENT
The substantial questions of law framed in the
appeal are as follows:
(1) Whether in the facts and
circumstances of the case the lower
appellate court was correct in coming to a
conclusion and recording a finding
discarding legal evidence and basing on
wild observations and baseless
presumptions?
(2) Whether in the facts and circumstances of
the case, the court below was legally
correct in casting the burden of proof in a
suit for injunction on the defendants?
2. The defendants in O.S.No.81/1987 on the file of
the Munsiff-Magistrate’s Court, Perambra are the appellants.
The appeal is directed against the judgment and decree in
A.S.No.67/95 on the file of the Sub Court, Quilandy. The
suit was for permanent prohibitory injunction restraining the
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defendants from trespassing upon the plaint schedule property. By
the revised judgment dated 23/12/1994 the trial court dismissed the
suit finding that the plaintiff has not succeeded in proving the
possession over the plaint schedule property. In the appeal
(A.S.No.67/95) preferred by the plaintiff the Lower appellate Court
reversed the findings of the trial court and held that the plaintiff has
proved the possession over the plaint schedule property. The
Appellate Court set aside the judgment and decree passed by the
trial court and decreed the suit for injunction. The parties are
hereinafter referred to as the plaintiff and defendants as arrayed in
the suit.
3. The suit property is having an extent of 7 cents
comprised in R.S.No.88/1A. The plaintiff claimed to be in
possession of the plaint schedule property. The plaintiff claimed
title and possession by virtue of Ext.A3 deed dated 17/3/1987
executed by Chathu and others in favour of the plaintiff. The
defendants filed written statement contending inter alia that the
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plaintiff has no manner of right, title and possession over the plaint
schedule property. The defendants also disputed the identity of the
property. Originally the suit was dismissed by the learned Munsiff.
Subsequently, in the appeal the Sub Court, Badakara directed the
trial court to dispose of the suit afresh after deputing a
Commissioner to identify the plaint schedule property. As per the
remand order, the trial court deputed a Commissioner. The court,
after considering the objections raised that there were some
mistakes in the report and plan, remitted the report and plan to the
Commissioner. Thereafter, the Commissioner submitted Exts.C5
and C6 report and plan. The parties also adduced additional
evidence both oral and documentary, after remand. Admittedly the
property lying on the immediate east of the plaint schedule property
is in the possession of the defendants. Both the plaintiff and
defendants claimed title on the strength of Exts.A3 and B1 deeds
respectively executed by the very same person, who was holding
the property. On the basis of the description of the boundaries and
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on the basis of the identification done by the parties to the suit in
the presence of the Commissioner, the Commissioner measured,
identified and demarcated the plaint schedule property and the
adjacent eastern property, which admittedly belongs to the
defendants. The plaint schedule property is shown as plot A and
the property on the eastern side is shown as plot B. The
identification of the properties was made on the basis of the title
deeds of the respective parties. The Commissioner found that plot
A is having an extent of 6.25 cents and plot B 3.8 cents. As per
the documents, the plaint schedule property and the adjacent
eastern property are having an extent of 7 cents and 5 cents
respectively.
4. The trial court as well as the Appellate Court accepted
the Commissioner’s report and held that the plaint schedule
property is correctly identified and described by the Commissioner
in Ext.C6 plan as plot A. The trial court as well as the Appellate
Court considered the claims of the respective parties on merits.
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Both the parties are claiming title and possession under a common
vendor. The defendants case is that they obtained 5 cents of
property from PW-1, who is the predecessor-in-interest of the
plaintiff. The trial court considered the question as to whether the
plaintiff is in possession of the plaint schedule property. After
examining the description of the property shown in Exts.A3 and
B1, considering the Commissioner’s report, plan and other oral and
documentary evidence, the trial court held that the plaintiff has not
succeeded in proving the possession of the property and therefore
the relief of injunction was declined. The Appellate Court on the
very same set of facts, circumstances and evidence, reversed the
findings of the trial court. The Appellate Court also considered
the question of possession of the property with reference to the title
deeds, namely, Exts.A3 and B1. The Appellate Court also found
that the plaintiff and the lst defendant get portions of item No.3 in
Ext.A1 and the assignor is also the same person. The Appellate
Court also noted the fact that the Commissioner has shown Ext. B1
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property as plot B which is admittedly in the possession of the
defendants. The court also noted the fact that the Commissioner
has on measurement shown lessor extent of both Exts.A3 and B1
properties. Considering the oral and documentary evidence adduced
in support of the respective contentions including Commissioner’s
report and plan, the Lower Appellate Court held that the plaintiff
has succeeded in proving the possession over the plaint schedule
property. The court below held that the evidence of PW1 and the
documentary evidence adduced by the plaintiff satisfactorily
shown the possession of the plaintiff. After assessing the whole
evidence it set aside the judgment and decree of the lower court
and held that the plot A in Ext.C6 is in the possession of the
plaintiff and he is entitled to the relief as prayed for. The finding
that the plaintiff is in possession of the plaint schedule property is a
pure question of fact entered by the fact finding court. Therefore,
the finding of facts recorded by the court below cannot be
interfered in the second appeal filed under Section 100 of the
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C.P.C. On a perusal of the judgment rendered by the Lower
Appellate Court, I am of the view that the court rightly found that
the plaintiff is in possession of plot A in Ext.C6 plan. There is
slight difference in extent between the property shown as plaint
schedule property and the property identified by the Commissioner
in Ext.C6 plan. In the plaint the extent shown is 7 cents. The
Commissioner identified the property, which is having 6.25 cents.
5. The learned Sub Judge in appeal instead of restricting
the decree to plot A in Ext.C6 plan, granted injunction for the
extent of 7 cents shown in the plaint, after finding that the plaintiff
is in possession of only 6.25 cents identified as plot A in Ext.C6
plan. There is no justification for passing the decree for injunction
as prayed for in the plaint. Therefore, slight modification of the
decree and judgment passed by the court is necessitated.
In the result, the judgment and decree passed by the
Appellate Court is confirmed subject to the modification that the
decree passed by the Lower Appellate Court is confined to plot A
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in Ext.P6 plan.
Second Appeal is disposed of with the above
modification. The parties shall bear their respective costs. Ext.C6
plan shall form part of the decree.
HARUN-UL-RASHID,
Judge.
kcv.