IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 251 of 1996(E)
1. T.NARAYANAN
... Petitioner
Vs
1. T.NARAYANI AMMA
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/03/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.251 of 1996
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Dated this the 4th day of March, 2009.
JUDGMENT
Claiming title and possession of 1.50 acres in R.S.No.568/1 of Bedadka
Village as per Ext.A1, sale deed dated 30.5.1983 executed by one Narayanan
Nambiar and alleging that appellants/defendants who according to the
respondent owned property on the western side of the suit property attempted to
trespass into that property, respondent/plaintiff sued the appellants for a decree
of prohibitory injunction. Respondent claimed that she has effected
improvements in the said property by planting cashew plants and raising a
portion of the property for construction of a house. Appellants denied title and
possession of the respondent and her predecessors-in-interest. According to
the appellants, suit property formed part of the 14.25 acres belonging to them
as per Exts.B1 and B2. In the court below, the advocate commissioner
inspected the property with the assistance of the Village Assistant and submitted
report and plan – Exts.C1 and C1(a), respectively. Learned Munsiff found that
there is no proper identification of the suit property and that respondent is not
proved to be in possession thereof. Consequently the suit was dismissed. First
appellate court however, placing reliance on the evidence of the first
appellant/defendant No.1 (DW1) found that there is proper identification of the
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suit property, circumstances indicated that respondent is in possession of the
same and granted decree. The judgment and decree of the first appellate court
are under challenge in this Second Appeal.
2. Substantial questions of law raised for a decision are:-
(i) In a suit for injunction, is not the burden of proving
possession of the suit property on the date of suit, on the plaintiff? If so has not
the lower appellate court committed an error of law in casting the burden on the
defendants.
(ii) Is not the finding of the lower appellate court, that the plaintiff
is in possession of the suit property, based on a wrong construction of Ext.A1
and Exts.C1 and C1(a)?
(iii) Has not the lower appellate court committed an error of law
in not taking note of the material portions of Exts.C1 and C1(a), while
considering the question of possession of the suit property?
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(iv) Is not the finding relating to the possession of the suit
property entered by the lower appellate court against the admission of PW1
(respondent/plaintiff) the report , Ext.C1 and plan Ext.C1(a) submitted by the
commissioner and the contents of Ext.A1. If so has not the lower appellate court
committed an error of law in entering such finding.
3. It is contended by the learned counsel for appellants that there is
no proper identification of the suit property with reference to Ext.A1, sale deed of
the respondent and that the claims made by the respondent in the plaint and in
her evidence as PW1 stand disproved by Ext.C1, report of the advocate
commissioner. Learned counsel contended that even in the objection preferred
by the respondent to Exts.C1 and C1(a), there is no challenge to the report of
the advocate commissioner regarding the age of the improvements found in the
property referred to in Ext.C1(a) as the suit property or, that the advocate
commissioner failed to notice the house building put up by the respondent in that
property. It is also pointed out by the learned counsel that it is for the first time in
the objection to the commissioner’s report that the respondent introduced a case
that the water chal on the east of the property identified by the advocate
commissioner was put up by the appellants immediately before the institution of
the suit. According to the learned counsel, first appellate court has made heavy
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reliance on an inadvertant mistake committed by the first appellant (DW1) in
the course of cross examination which itself is proved to be incorrect on the facts
of the case. Learned counsel for respondent in response contended that the
first appellate court has considered the evidence on record and reached the
conclusion, there is no error of law or, perverse appreciation of the evidence
requiring interference in the Second Appeal.
4. This being a suit for injunction the court is concerned with the
possession claimed by the respondent. She claimed title and possession as per
Ext.A1, sale deed executed by Nayananan Nambiar . She examined PW2, son
of Narayanan Nambiar who produced Ext.X1, gift deed as per which Narayanan
Nambiar is said to have acquired right over a larger extent including the suit
property which according to the respondent was conveyed to her as per Ext.A1.
PW2 has stated that Ext.A1 executed by his father (Narayanan Nambiar) is
concerning the property involved in this case. Respondent as PW1 also stated
so. She stated that she has already put up a house in the suit property which
she had pointed out to the advocate commissioner at the time of his inspection.
But ofcourse, Ext.C1 does not make any mention of any such house. There is
no reason to think that if such a house was there in the suit property at the time
of inspection the commissioner would have omitted to notice that and mention
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it in Ext.C1. But, for that reason alone, the case of the respondent regarding
possession cannot be rejected. For, it is seen that the advocate commissioner
inspected the suit property on 30.4.1989 while the respondent gave evidence as
PW1 on 19.2.1992. Even according to the respondent (PW1), she is residing in
the suit property for the last four years (of her examination on 19.2.1992).
Therefore, it may be a mistake on the part of PW1 in claiming that the house
was in existence at the time of inspection of the advocate commissioner or, her
statement was not correct or could even be an exaggeration. It may be that the
house was put up after inspection by the advocate commissioner. Respondent
has stated in the plaint that she raised a portion of the suit property for
construction of a house. That raised portion was noted by the advocate
commissioner also in Ext.C1. Therefore, it is not as if the respondent came with
an altogether false case of putting up a house in the suit property at the time of
her evidence or, the property she referred to as belonging to her and covered by
Ext.A1 being something other than the suit property.
5. As regards the improvements found in the suit property,
respondent stated in the plaint that the cashew plants are aged 1 = – 40 years
but, the advocate commissioner noted the age of the cashew plants as 7 – 10
years. No objection has been preferred by the respondent to the age of the
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cashew plants reported by the commissioner and hence, the age noted by the
advocate commissioner though approximate, has to be accepted. Even there,
one has to bear-in-mind that respondent was stating about the age of the
cashew plants as on the date of the institution of the suit in the year 1986 as
1= – 40 years and the advocate commissioner inspected the property on
30.4.1989 ie., after three years. Therefore, the age of the some of the cashew
plants reported by the advocate commissioner as around seven years almost
tallied with the case set up by the respondent (3 + 1 = years) though, not to the
extend of the respondent describing the maximum age of the cashew plants as
40 years. The advocate commissioner noticed a jack fruit tree in the suit
property having the oldness stated by the respondent in the plaint.
6. So far as the identification of the suit property is concerned, it is
seen from Ext.C1 that the advocate commissioner identified it with the help of
both parties who were present and with the help of the Village Assistant who
had brought the FMB also. There is no reason to think the FMB brought by the
Village Assistant was not made use of for identification and, it is pertinent to
note that the appellants did not challenge the identification of the property by the
advocate commissioner as shown in Ext.C1(a) [in Ext.C1(a), the suit property is
shown as plot 568/1A ].
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7. So far as the northern boundary of the suit property is concerned,
there is no dispute between the parties. Though in the plaint schedule
respondent had given a different description, the northern boundary reported by
the advocate commissioner tallied with the northern boundary described in
Ext.A1. The southern boundary also tallied. Appellants have no claim over any
property on the east of the suit property. In effect, the dispute is only regarding
the western boundary of the suit property. I do not forget that the advocate
commissioner has reported in paragraph 6 of Ext.C1 that the western and
eastern boundaries are reported by him as shown by the respondent and that
so far as the western boundary is concerned the advocate commissioner was
not able to find any boundary mark. But the commissioner has shown the
measurement of the western boundary of the suit property as ‘670’ and when the
first appellant (DW1) was in the box, Ext.C1(a) was handed over to him. He
admitted that the eastern boundary line of the property belonging to him is the
(western) boundary line (670) of the suit property. True, he also referred to a
stone wall on that boundary line and claimed that he has no property on the
east of that stone wall but concededly, there is no such stone wall on that
boundary line. To that extent a mistake is committed by the first appellant
(DW1). But he admitted that the appellants do not possess or own any land on
the east of the said boundary line (western boundary line of the suit property) as
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shown by the advocate commissioner. That statement remains. That, taken
along with the statement in Ext.C1 that the suit property was identified with the
help of both sides and the Village Assistant who was present with FMB give
sufficient indication that the plot marked as 568/1A in Ext.C1(a) is the suit
property over which the respondent claimed title and possession as per Ext.A1.
That precisely is what the appellate court accepted.
8. So far as the claim of possession is concerned, respondent
produced Ext.A4 series, receipts for payment of revenue after she acquired the
property while appellants rest contented by merely producing Exts.B1 and B2 . I
referred to the evidence of DW1 that appellants do not own or possess any land
east of the western boundary line shown by the advocate commissioner in
Ext.C1(a). I also referred to the case of the respondent about the improvements
in the suit property and her raising a portion of that property for the purpose of
house construction which stands corroborated by Ext.C1. It is in these
circumstances that the first appellate court concluded that respondent is in
possession of the suit property. It is not a case of there being no evidence or,
any perverse appreciation of evidence requiring interference in the Second
Appeal. As such the contention raised by the appellants cannot succeed. (Since
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the depositions of the witnesses do not form part of the case records, I have
made use of the photocopy of the depositions made available by the counsel for
the appellants).
10. No other point is raised for consideration.
Resultantly, the Second Appeal fails. It is dismissed. No costs.
C.M.P.No.631 of 1996 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.251 of 1996
JUDGMENT
4th March, 2009.