IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 723 of 2001()
1. SOOSAMMANICKAM
... Petitioner
Vs
1. RAMASWAMY KOUNDAN
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/11/2008
O R D E R
K.T. SANKARAN, J.
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S.A. No. 723 OF 2001
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Dated this the 19th November, 2008
J U D G M E N T
The defendants in O.S.No. 29 of 1983 on the file of the
Munsiff’s Court, Chittur are the appellants in the Second Appeal.
The respondent herein instituted the suit for permanent
prohibitory injunction restraining the defendants from
trespassing upon the plaint schedule property or from cutting
trees standing on the western boundary of the plaint schedule
property. The trial court decreed the suit. On appeal by the
defendants, the appellate court confirmed the judgment and
decree of the trial court.
2. The case of the plaintiff is that his property is included in
Sy. No.1027 /1 of Vadakarapathy village. The property of the
first defendant is situated in Sy. No.1025 on the western side of
the plaint schedule property. The defendant attempted to
trespass upon the plaint schedule property and to cut down the
trees on the western ridge, which separates the plaint schedule
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property from the property of the first defendant.
3. According to the first defendant, boundary ‘varamba’
belongs to him and is included in his property in Sy.No.1025.
He also stated that when the dispute arose, the survey officials
measured the property and it was found that the disputed
portion is in Sy. No.1025.
4. Against the decision of the trial court, there was an
appeal and the appellate court had remanded the case to the
trial court with a direction to appoint a Commissioner to identify
the plaint schedule property and to submit a plan in accordance
with the survey measurements. After the remand, the trial court
appointed a commissioner who submitted Exhibit C1 report and
Exhibit C2 plan. From Exhibit C2 plan it is clear that the
‘varamba’ separating the properties of the defendants and that of
the plaintiff is included in Sy.No.1027/1. There is no claim for
the first defendant that he has title or possession over any
portion of the property in Sy. No. 1027/1. On the other hand,
the averments in the written statement filed by the first
defendant would disclose that the dispute was whether the
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disputed portion of the property is included in Sy.No.1027/1 or
1025 and that it was found on survey measurement that the
disputed portion is included in Sy.No.1025. But the survey
measurement in the presence of the Commissioner discloses
that the disputed portion is in Sy.No.1027/1. The first
defendant had transferred the property pending suit to the
second defendant. The courts below have noticed that the title
deed in favour of the second defendant also does not disclose
that any portion of Sy.No.1027/1 was assigned in favour of the
second defendant. In short, the parties put forward their
respective cases before the courts below based on survey
numbers. The dispute was as to whether the disputed portion is
included in Sy.No.1025 or in 1027/1. The Commissioner’s report
and plan make it abundantly clear that the disputed portion is in
Sy. No.1027/1. Relying on the plan and report submitted by the
Commissioner and also considering the oral evidence in the case,
the trial court as well as the appellate court came to the
conclusion that the plaintiff has established his possession over
the disputed ‘varamba’. Accordingly, it was held that the
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plaintiff is entitled to prohibitory injunction, as prayed for.
5. Learned counsel for the appellants submitted that the
property of the appellants/defendants is on a higher level and
that the disputed portion is a ‘thadayavaramba’ regulating flow of
water in the property. The ‘varamba’ should belong to the owner
of the property on the upper level and therefore, the plaintiff
cannot claim any title or possession over the ‘varamba’, which
forms a part of upper land. There is no pleading in the written
statement to that effect. On the other hand, as noted by the
courts below , the Commissioner’s report would indicate that the
disputed ‘varamba’ is a ‘thadayavaramba’ belonging to the
plaintiff. There is also no force in the contention raised by the
appellants since it is clear from the the Commissioner’s plan and
report that the property belonging to the plaintiff is on a higher
level. The decisions of the courts below are based on facts and
evidence on record. The findings of fact arrived at by the courts
below should not normally be interfered with in Second Appeal,
unless substantial questions of law are involved in the Second
Appeal. In the case on hand, no substantial question of law is
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involved. The findings are factual findings. The decisions are
based on facts and factual findings. There is no scope for
interference in the Second Appeal. It is clear from the
judgments of the courts below that the courts below have not
considered the question of title to the disputed property and
only the question of possession was considered. Nothing prevents
the appellants from raising the question of title in a properly
constituted suit.
With the above observations, the Second Appeal is
dismissed. No order as to costs.
K.T. SANKARAN,
JUDGE.
lk
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K.T. SANKARAN, J.
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S.A. No. 723 OF 2001
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Dated this the 19th November, 2008
J U D G M E N T