K.Balakrishna vs Sridhara Naik on 31 October, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 775 of 2008()


1. K.BALAKRISHNA, S/O.KUTTIA NAIK, CRPF
                      ...  Petitioner

                        Vs



1. SRIDHARA NAIK, S/O.CHOMANNA NAIK, R/AT.P
                       ...       Respondent

                For Petitioner  :SRI.K.JAYAKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :31/10/2008

 O R D E R
                       V. RAMKUMAR, J.
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                      R.S.A.No.775 of 2008
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             Dated this the 31st day of October, 2008

                            JUDGMENT

The plaintiff in O.S.No.311 of 2003 on the file of the

Munsiff’s court, Kasaragod is the appellant in this second appeal.

The said suit was one for injunction against trespass into the

plaint schedule property which was described as 11 cents of

property comprised in Survey No.694/2 part. The body of the

plaint alleged that the correct survey number of the property is

695/2. After the Advocate Commissioner deputed by the trial

court filed his report, the plaintiff amended the plaint so as to

change the Survey Number 694/2 part, to 694/1. The boundaries

of the plaint schedule property were also changed after the

Commissioner’s report and plan. According to the plaintiff, he is

in possession of the plaint schedule property on the strength of

Ext.A1 certificate of purchase issued by the competent land

tribunal in favour of the plaintiff’s father and the father assigned

the property to him as per Ext.A2 sale deed dated 17.2.01.

2. Admittedly, the survey number shown in Ext.A1

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certificate of purchase is Survey No.694/2 part, which was the

survey number originally shown for the plaint schedule property.

The boundaries shown in Ext.A1 certificate of purchase are the

following:-

North — Rama Naik

West — Property of plaintiff’s father

South — Rama Naik

East — Ittappa Naik

The same boundaries were shown in the plaint schedule

property as originally filed. On the Commissioner submitting

Ext.C1 report to the effect that the northern boundary is the

property of the Sreedharan Naik, the plaintiff amended the

northern boundary of the plaint schedule property. Even after

the amendment of the plaint as above, the plaintiff’s attempt

before the lower appellate court and this Court was to show that

the correct survey number of the plaint schedule property is

Survey No.694/1B which is not the survey No. either in Ext.A1

certificate of purchase or in the plaint schedule property either

before or after the amendment of the plaint. According to the

Commissioner, the plaint schedule property is comprised in

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R.S.No.694/1 part. It is not known as to how the trial court

granted a decree to the plaintiff on these materials.

3. Aggrieved by the decree passed by the trial court, the

defendant who is the paternal uncle of the plaintiff filed an

appeal before the Court of the Subordinate Judge, Kasaragod as

A.S.No.135 of 2004. As per the impugned judgment and decree,

the lower appellate court reversed the decree passed by the trial

court and dismissed the suit. Hence this second appeal.

4. It may be true that the lower appellate court was not

justified in considering a case which is not even pleaded by the

defendant. But then the appellant being the plaintiff will have

to stand or fall on the strength of his own evidence. When the

evidence before the court was so discrepant and the identity of

the suit property was not established, it was not permissible for

the trial court to grant a decree for injunction. It is true that the

appellant is a C.R.P.F Jawan and rendering service elsewhere.

But when he has come to court seeking a perpetual injunction he

will have to prove his possession over the plaint schedule

property after properly identifying the same. On the material

before the court it cannot be said that the dismissal of the suit by

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the lower appellate court is erroneous. No questions of law,

much less any substantial question of law arises for

consideration in this second appeal, which is accordingly

dismissed in limine.

I make it clear that observations, if any, regarding the title

of the plaintiffs were made only incidental to the finding

regarding the possession and those observations regarding title

need not be taken as binding.

Dated this the 31st day of October, 2008.

V. RAMKUMAR, JUDGE

sj