IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 83 of 1994()
1. KUTTAN NAIR
... Petitioner
Vs
1. VASUDEVAN NAIR
... Respondent
For Petitioner :SMT.PRABHA R.MENON
For Respondent :SRI.P.K.ABOOBACKER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/07/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
S.A. NO. 83 OF 1994
===========================
Dated this the 2nd day of July, 2007
JUDGMENT
Plaintiffs in O.S.80/1983 on the file of
Munsiff Magistrate Court, Ponnani are the
appellants. Respondents are the defendants. Suit
was filed seeking a decree for permanent
prohibitory injunction in respect of three items of
property in R.S.No.110/5 of Edappal Village. But
the dispute was only in respect of thak No.3 of the
plaint schedule properties having measurements of
24×10= six ft. koles. According to appellants,
plaint schedule properties including the disputed
property was obtained by first appellant from
Edappamveettil tarward as per a lease and jenm
right vests with Azhuvancherry Mana and
Edappamveettil Tarwad has kanam right over the
property and appellants later obtained jenm right
from the Land Tribunal as per order in
O.A.7910/1975 and also the purchase certificate
S.A.83/1994 2
and they have been in possession of the
properties. It was contended that respondents 1
and 2 filed O.S.40/1979 seeking a decree for
permanent prohibitory injunction in respect of the
disputed 20 cents of the property and that suit was
dismissed and after the dismissal of the suit, they
attempted to trespass into the plaint schedule
properties and they have no right to do so and so
they are to be restrained by permanent prohibitory
injunction and from trespassing into the plaint
schedule properties. Respondents resisted the suit
contending that the disputed property is part of
the properties belonging to them and it was
obtained on oral lease from Edappam veettil
Narayani Amma and subsequently a purchase
certificate was also obtained and they are in
possession of the property and appellants are not
entitled to the decree sought for. Learned Munsiff
framed the necessary issues. On the evidence of
Pws.1 and 2, Dws. 1 and 2, Exts.A1 to A12, Exts.B1
to B4, C1 and C2, learned Munsiff upheld the case
S.A.83/1994 3
of the appellants and granted a decree for
injunction holding that they have established their
possession over the plaint schedule properties
including the disputed property. Defendants
challenged the decree and judgment before the Sub
Court, Tirur in A.S.36/1988. Learned Sub Judge on
reappreciation of evidence, set aside the findings
of learned Munsiff and held that appellants did
not establish their possession of the disputed
portion of the plaint schedule properties and
therefore they are not entitled to the decree
granted by the trial court. The appeal was allowed
and the suit was dismissed. It is challenged in
the Second appeal.
2. The second appeal was admitted formulating
the following substantial questions of law.
1) When Ext.A3 judgment in O.S.No.40/1979 shows
that appellants are in possession of the plaint
schedule property, should not the first appellate
court draw a presumption under section 114 of
Evidence Act that the appellants continued
S.A.83/1994 4
possession of the plaint schedule property.?
2) Whether first appellate court was justified
in interfering with the findings of the trial
court, when under Ext.A2 decree and A3 judgment
respondents are found to be not in possession of
the plaint schedule properties?
3. Learned counsel appearing for appellants
and respondents were heard.
4. Learned counsel appearing for appellants
vehemently argued that O.S.40/1979 was instituted
by respondents 1 and 2 against appellants seeking
a decree for permanent prohibitory injunction in
respect of the disputed portion of the plaint
schedule properties herein and under Ext.A3
judgment, respondents are found not in possession
of the property and the case of the appellants was
upheld by the court and in such circumstances,
appellants are presumed to continue in possession
of the property till the date of institution of the
suit and if so, first appellate court is not
justified in interfering with the findings of
S.A.83/1994 5
the trial court and appellants are entitled to the
decree for injunction. It was argued that as under
Ext.A3 judgment appellants are found to be in
possession of the property, respondents cannot
claim that they obtained possession of the property
after the dismissal of Ext.A3 suit and therefore
first appellate court should not have interfered
with the decree. Learned counsel appearing for
respondents argued that first appellate court has
appreciated the facts and evidence in the proper
perspective and that finding of fact cannot be
interfered in exercise of the powers of this court
under section 100 of Code of Civil Procedure.
5. It is admitted case that O.S.40/1979 was
instituted by respondents 1 and 2 against
appellants seeking a decree for injunction. It is
not disputed that plaint schedule property therein
takes in the disputed thak No.3 of plaint schedule
properties herein. As argued by learned counsel
appearing for appellants, if there was a finding in
Ext.A3 judgment, either that the plaintiffs therein
S.A.83/1994 6
namely respondents 1 and 2 herein are not in
possession of the plaint schedule property or that
defendants therein namely appellants herein are in
possession of the property, respondents are not
entitled to raise a contention to the contrary that
they are in possession of the plaint schedule
property as against the claim for possession raised
by appellants. As rightly found by the first
appellate court, there is no finding in Ext.A3 with
regard to the possession of the respondents or the
possession of the appellants. The decree for
injunction sought for in Ext.A3 suit was not only
against appellants herein but also against the
plaintiff in O.S.58/1978. The landlord of the
respondents who instituted O.S.58/1978 admitting
possession of respondents over the entire plaint
schedule property therein. Both the suits were
jointly tried. Ext.A3 judgment shows that learned
Munsiff held that as the landlord admitted
possession of respondents herein, there was no
necessity to grant a decree for injunction against
S.A.83/1994 7
the plaintiff in O.S.58/1978 as there could be no
reasonable apprehension of trespass. With regard
to the claim raised by the appellants herein, the
finding in Ext.A3 reads:-
“Added to this, from the
available evidence there
is much force in the case
put forwarded by the 3rd
defendant in O.S.40/79
that portion of his
property is included in
the schedule to
O.S.40/79. Any way I am
not at all convinced that
any decree for injunction
in O.S.40/79 is
justifiable in the facts
and circumstances of the
case.”
There is no finding that plaintiffs therein are not
in possession of the disputed 20 cents. There was
S.A.83/1994 8
also no finding that defendants therein were in
possession of the disputed 20 cents herein.
Therefore Ext.A3 cannot be used by the appellants
to strengthen their case. Their possession was not
found by the court. So also possession of the
respondents claimed was not negatived. If that
be so, relying on Ext.A3 judgment, appellants are
not entitled to contend that they are entitled to
get a decree for injunction.
6. Learned Sub Judge relying on Ext.C1 report
and C2 plan as well as Exts.A4 and A5 reports and
plan in the earlier suit O.S.40/1979, entered a
factual finding that appellants did not establish
their possession of the disputed portion of plaint
schedule property. That factual finding cannot be
interfered by reappreciating the evidence in
exercise of the powers of this court under section
100 of the Code of Civil Procedure. In such
circumstance, appellants are not entitled to the
decree for injunction, which was originally granted
by the trial court and set aside by the first
S.A.83/1994 9
appellate court.
The appeal fails and is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.83 /94
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JUDGMENT
2ND JULY,2007