IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 285 of 2000(A)
1. CHEEMENI ESTATE
... Petitioner
Vs
1. NARAYANI
... Respondent
For Petitioner :SRI.JOSEPH MARKOSE (SR.)
For Respondent :SRI.KALEESWARAM RAJ
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :29/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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S.A No.285 OF 2000
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Dated this the 29th day of October 2010
JUDGMENT
Plaintiff in a suit for injunction has filed this appeal. Trial
court granted a decree in his favour, but, in appeal preferred by
the defendants, the lower appellate court reversed the decree
and dismissed the suit. Challenging the decision of the lower
appellate court as aforesaid, plaintiff has preferred this appeal.
2. Plaintiff is a unit of the Plantation Corporation of Kerala
Ltd. Suit claim is in respect of a portion of the property assigned
in favour of the Corporation by the Government, which was
described in the plaint as having an extent of 17 = cents when
the suit was instituted, but, later, amended and reduced to 13
cents after local inspection of the suit property and preparation of
a plan by an advocate commissioner. The defendants made
attempts to trespass upon the suit property was the case
canvassed to claim the discretional relief of injunction against
them. Resisting the suit, the defendants claiming that they had
been issued a purchase certificate over 10 cents of land by the
Land Tribunal recognizing the tenancy over such land contended
that they are in possession and enjoyment of more extent of land
at the site. Description of the plaint schedule was disputed by the
defendants contending that the suit has been filed to annex the
S.A No.285 OF 2000 – 2 –
property in their possession. The trial court, on the materials
placed, which consisted of PW1 and PW2 and Ext.A1 to Ext.A4
series for the plaintiff, DW1 and Ext.B1 for the defendants and
Ext.C1 to Ext.C4 reports and plan prepared by an advocate
commissioner, found the case of the plaintiff more probable and
acceptable, and accordingly, granted the plaintiff a decree of
injunction against the defendants restraining them from
interfering with the possession and enjoyment of the plaintiff over
the suit property. In the appeal preferred by the defendants, the
lower appellate court, after reappreciating the materials tendered
in the case, coming to the conclusion that the plaintiff has failed
to identify and establish its possession over the suit property as
described in the plaint reversed the decree of the trial court and
dismissed the suit.
3. In the appeal preferred by the plaintiff, challenging the
decision of the lower appellate court as stated above, notice was
ordered to the respondents and thereupon they have entered
appearance. Though the appeal had been filed as early as on
2000, its admissibility with reference to the question whether any
substantial question of law is involved as covered by sub Section
(1) of Section 100 of the Code has not been considered so far. So
much so, the admissibility of the appeal was heard. The
S.A No.285 OF 2000 – 3 –
questions formulated in the memorandum of appeal, it is seen,
are not based on any question of law, but, on the findings entered
by the lower appellate court over disputed facts involved in the
case. Perusing the judgments of both the courts below, it is seen
that even the trial court, on the materials, found that the
documents tendered by the plaintiff to sustain the claim of
injunction canvassed in the suit are hardly sufficient to identify
the suit property. However, it proceeded to examine the claim of
injunction of the plaintiff with reference to the commission report
and plans whereunder the advocate commissioner had located
the property under the possession of the defendants and rest of
the property lying to its north and also east as forming part of the
property of the plaintiff. Considering the oral evidence tendered
in the case with reference to the report and plan of the
commissioner, the trial court formed an opinion that the case
canvassed by the plaintiff is more probable and acceptable and in
that view of the matter, the decree of injunction was granted.
The trial court has expressed the view that in the facts involved in
the case, ‘probabilities can be gathered from the testimony of the
parties as also from the reports and plans of the Commissioner’.
Needless to point out, when a decree of injunction is applied for in
respect of an immovable property, such a discretionary relief can
S.A No.285 OF 2000 – 4 –
be granted only on proper identification of that property, and, if
not, any decree passed on incomplete data is likely to create
more confusion and further work out undesirable consequences to
the parties. So much so, where the trial court found that the
plaintiff failed to establish the identity of the property by basic
documents especially where the claim of possession was based
on title, assignment of the property by the Government, there
was no question of granting any discretionary relief of injunction
in favour of the plaintiff. On what basis, the advocate
commissioner deputed by the court identified the suit property
also appears to be a mystery. A large extent of property in the
survey number relating to the plaint property ie, 313. 60 acres,
was obtained by the plaintiff Corporation as part of 1268.74 acres
handed over to it by the Government. Plaint property at the time
of institution of the suit was shown as having 17 = cents, but,
later, it was amended on the basis of the commission report
reducing it to 13 cents for the reason that in Ext.B1 purchase
certificate issued in favour of the defendants, the eastern
boundary is shown as a public road. On mere surmise a
description of the property was included in the plaint to seek the
relief of injunction. So, whether or not the defendants had
established the contention raised by them to resist the suit claim
S.A No.285 OF 2000 – 5 –
for injunction, it was a case where the plaintiffs failed to prove the
identity of the suit property over which the relief of injunction was
canvassed. The lower appellate court was fully justified in
reversing the decree of injunction granted by the trial court where
the property in respect of which that relief was claimed remained
unidentified. The reports and plan prepared by the advocate
commissioner, it is seen, no way assist the plaintiff to identify or
establish its possession over the suit property described in the
plaint. The appeal does not involve any question of law leave
alone any substantial question of law. Appeal is dismissed
directing both sides to suffer their cost.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv