High Court Kerala High Court

Palliparambath Mariyumma vs Abdul Azeez on 14 November, 2007

Kerala High Court
Palliparambath Mariyumma vs Abdul Azeez on 14 November, 2007
       

  

  

 
 
  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.
                   ...........................................
                    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