Benoy George v. Dr. Joy, Aravindan and P. Shaji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 RSA NO. 1222 OF 2012** **AGAINST THE DECREE AND JUDGMENT DATED 08.06.2012 IN AS 180/2010 OF III ADDITIONAL SUB COURT, ERNAKULAM AGAINST THE DECREE AND JUDGMENT DATED 24.11.2009 IN OS 328/2006 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** BENOY GEORGE AGED 42 YEARS S/O.GEORGE, CHERUKARA, MAPPANACHERRY HOUSE, NEAR GOOD EARTH HAVELI, PERIKAD, EROOR WEST P.O., TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 306. BY ADVS. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR SRI.RAHUL SHENOY ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 & 3:** 1 DR.JOY AGED 62 YEARS S/O.LATE P.G.JOSEPH, RESIDING AT JOYS, JANATHA ROAD, VYTILLA, KOCHI - 19, ERNAKULAM DISTRICT. 2 ARAVINDAN AGED 56 YEARS S/O.NARAYANAN, REAL ESTATE BROKER, NEAR GOOD EARTH HAVELI, PERIKAD, EROOR WEST P.O., TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 306. 3 P.SHAJI **RSA NO.1222 OF 2012** **2** AGED 34 YEARS S/O.PARAMESWARAN, PERIKATTU VEETTIL, PERIKAD, EROOR WEST P.O., TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682 306. BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.R.DIVAKARAN SRI.R.DIVAKARAN SRI.MANU GEORGE KURUVILLA SRIN.RAYNOLD FERNANDEZ SMT.RINU JOSE THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.1222 OF 2012** **3** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.1222 of 2012 --------------------------------------------- Dated this the 25[th] day of November, 2021 ## **JUDGMENT** Defendant No.1 in the Trial court is the appellant. The plaintiff and defendant Nos.2 and 3 are the respondents. 2. Material facts relevant for considering the appeal are briefly narrated below:- 2.1 The plaintiff is the owner in possession of plaint 'A' schedule property measuring 14.11 Ares of land (39.800 cents) comprised in Sy.No.890 of Nadama Village. The plaintiff acquired title and possession over the property by way of sale deed No.1844/1997 of SRO Tripunithura. A pathway runs in the east-west direction on the north of the plaint 'A' schedule property. Yielding coconut trees are standing on 'A' schedule property. Defendant No.1 is the owner of the property situated on the north of the plaint 'A' schedule property. He constructed a compound wall around his property and set up a gate on the south-eastern corner of **RSA NO.1222 OF 2012** **4** the property, abutting the south passage. Defendant No.3 has property on further west of the property of defendant No.1. The plaintiff is residing about 5 kms away from the plaint 'A' schedule property. The defendants trespassed upon the plaint 'A' schedule property and cut down 7 yielding coconut trees standing on the northern boundary, and dumped gravel over a width of about 3 metres. This portion of plaint 'A' schedule property is described in the plaint as 'B' schedule. The defendants have no right to trespass upon the plaint schedule property. 3. Defendant No.1 resisted the suit contending that the width of the pathway on the north of plaint 'A' schedule property is 10 feet. According to defendant No.1, the way on the north of plaint 'A' schedule property had been widened by taking portions of his property. Gravel was put on the pathway as it was marshy. Defendant No.1 has not trespassed upon the plaint 'A' schedule property. 4. Defendant Nos. 2 and 3 also resisted the suit. They contended that the width of the way on the north of plaint 'A' schedule property is 20 links. Defendants 2 and 3 also contended that they have not trespassed upon the plaint **RSA NO.1222 OF 2012** **5** 'A' schedule property and committed any acts of waste as pleaded by the plaintiff. 5. During the trial, on the side of the plaintiff, PWs 1 and 2 were examined and Exts.A1 to A15 were marked. DWs 1 to 4 were examined and Exts.B1 to B6 were marked on the side of the defendants. Exts.C1 and C1(a) were marked as Court Exhibits. 6. The Trial Court held that the plaintiff established the identity of the plaint schedule property and the cause of action pleaded. It was also held that the plaintiff is entitled to the prohibitory injunction as prayed for. The Trial Court also allowed the plaintiff to realise a sum of Rs.21,000/- as compensation from the defendants for the loss sustained by the plaintiff on account of cutting and removal of seven coconut trees. 7. Defendants challenged the decree and judgment of the Trial Court in A.S.No.180/2010. The First Appellate Court partly allowed the appeal. The First Appellate Court set aside the decree awarding compensation to the plaintiff. However, the First Appellate Court confirmed the decree **RSA NO.1222 OF 2012** **6** granting a permanent prohibitory injunction in favour of the plaintiff against the defendants. 8. Defendant No.1 is before this Court in this Second Appeal. 9. After hearing both sides, this Court has reformulated the substantial question of law as follows: (i) Were the Courts below justified in granting a permanent prohibitory injunction in favour of the plaintiff without identifying the plaint schedule property based on a survey plan? 10. Heard Sri.T.B.Thankappan, the learned counsel appearing for the appellant, Sri.Manu Kuruvila, the learned counsel appearing for the 1[st] respondent/plaintiff and Sri.R.Divakaran, the learned counsel appearing for respondents 2 and 3. 11. The short question that falls for consideration is whether the Courts below were justified in granting the relief of permanent prohibitory injunction in respect of the plaint schedule property in favour of the plaintiff, without **RSA NO.1222 OF 2012** **7** measuring and specifically locating the plaint schedule property based on a survey plan. 12. The case of the plaintiff is that he is the absolute owner in possession of plaint 'A' schedule property having an extent of 14.11 Ares of land (39.800 cents). According to the plaintiff, the plaint schedule property has well defined boundaries on all sides. Plaintiff pleaded that a pathway having an approximate width of 4 feet runs in the east-west direction on the northern side of the plaint 'A' schedule property. The defendants attempted to trespass upon the plaint schedule property and dumped gravel on the northern portion of plaint 'A' schedule property. They also cut and removed coconut trees planted on the property. Hence, the plaintiff prayed for granting a prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and from committing any acts of waste therein. 13. The challenge of the defendants is that the width of the northern way is not 4 feet as pleaded by the plaintiff, but it has a width of 10 feet. **RSA NO.1222 OF 2012** **8** 14. The plaintiff relied on Ext.A4 title deed and Ext.A5 tax receipt to establish his title and possession over the plaint schedule property. The plaintiff also relied on Ext.A15, the certified copy of the sale deed of the property owned by defendant No.3 to contend that the way as mentioned therein has a width of only 7 links. A Commissioner visited the property and prepared Exts.C1 report and C1(a) sketch. In Exts.C1, the Commissioner specifically reported that plaint 'A' schedule property has well defined boundaries on all sides. 15. This is a suit for injunction. In _**Sunkamma v. S.Pushparaj [(2018) 12 SCC 647]**_ , the Apex Court held that in a suit pertaining to permanent injunction the touchstone upon which the suit has to be decided is “lawful possession” and not “ownership”. 16. The plaintiff's possession over the plaint 'A' schedule property is not in dispute. The defendants have not specifically disputed the identity of plaint 'A' schedule property. The Trial Court held that there are boundary stones on all the four boundaries of plaint 'A' schedule property and **RSA NO.1222 OF 2012** **9** the survey stone at the north-western corner of plaint 'A' schedule property separates it from the northern pathway. Relying on the oral evidence of PWs 1 and 2 and Exts.A4 and A15 and Exts. C1 series, the Trial Court held that the plaint schedule property is identifiable and the plaintiff is in the exclusive possession of plaint 'A' schedule property. 17. The First Appellate Court confirmed the finding of the Trial Court that the plaintiff established possession over the plaint schedule property and that the property is well identifiable. The question raised by the appellant is that whether the Courts below were justified in granting decree of prohibitory injunction without identifying the property based on a survey plan. 18. There is a specific finding of the Trial Court that plaint 'A' schedule has well-defined boundaries on all sides, which has been confirmed by the First Appellate Court. Where the property has well-defined physical boundaries sufficient to identify the same law does not insist for location of the property based on a survey-plan especially in a suit for injunction simpliciter. **RSA NO.1222 OF 2012** **10** The plaintiff established the cause of action pleaded in the plaint. This Court finds no reason to interfere with the findings of the Courts below. The Regular Second Appeal lacks merits. Accordingly, it stands dismissed. Parties are directed to bear their respective costs. **Sd/K.BABU JUDGE** VPK