## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941**
## **RSA.No.1187 OF 2012**
**AGAINST THE JUDGMENT DATED 30.07.2012 PASSED BY THE SUB COURT, CHERTHALA IN AS NO.32/2008 CONFIRMING THE JUDGMENT DATED 24.07.2007 IN OS NO.88/2005 OF ADDL. MUNSIFF'S OURT, CHERTHALA**
**-----**
## **APPELLANTS/APPELLANTS/PLAINTIFFS:**
- **1 CELIN, W/O.LATE JOSEPH T.M., THYVELIKKAKATHU, NAROTH ROAD THAMMANAM KOCHI 682032.**
- **2 T.J MATHEW, S/O.LATE JOSEPH T.M., THYVELIKKAKATHU NAROTH ROAD THAMMANAM KOCHI 682032.**
**BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE SRI.N.SUBRAMANIAM**
## **RESPONDENTS/RESPONDENTS 2 TO 4 IN AS/DEFENDANTS 2 TO 4 IN OS:**
- **1 SALI @ JOSEPH SALI, S/O. VARUTH, VALIYAVEETTIL (MACHINGAL), ILLICKAL VAZHI, THANNIKAL WEST, VETTACKAL, CHERTHALA, ALAPUZHA DISTRICT, PIN - 688587.**
- **2 ST.MARYS FORONA CHURCH, THANKY, REPRESENTED BY ITS PRESENT VICAR- REV. FATHER XAVIER CHIRAMEL, THANKEY, WAYALAR WEST, CHERTHALA - 688529.**
- **3 TRUSTEE OF ST.MARYS FORONA CHURCH, THANKY, NOW T.D. MICHEAL, KAIKIARAN, ST.MARYS FERONA CHURCH THANKEY, WAYALAR WEST, CHERTHALA - 688529.**
**R1 TO R3 BY ADV. SRI.JOBY CYRIAC R2 & R3 BY ADV. SRI.T.SETHUMADHAVAN SR.**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2020, THE COURT ON 20-02-2020 DELIVERED THE FOLLOWING:**
## **SATHISH NINAN, J.**
## **= = = = = = = = = = = = = = = = = = RSA No.1187 of 2012**
## **= = = = = = = = = = = = = = = = = = Dated this the 20[th] day of February, 2020**
## **JUDGMENT**
The plaintiffs in a suit for prohibitory injunction against trespass are the appellants. They are faced with a concurrent dismissal of their suit.
2. The plaint schedule property has an extent of 80 cents which is a part of a larger extent of 1 acre and 5 cents situated in Sy. No.365/7 of Pattanakad, formerly Vayalar village. The plaintiffs claim that they are in possession and enjoyment of the property in continuation of their predecessor late Mathukutty who is the husband of the first plaintiff and father of the second plaintiff. Out of the 1 acre and 5 cents that was possessed by Mathukutty, 10 cents was given on kudikidappu to one Sebastian and another 15 cents was given to his brother Antony. It is the remaining extent of 80 cents that is described in the plaint schedule. The plaintiffs claim that the
RSA No.1187 of 2012
:- 2 :-
property is in their possession and enjoyment and they apprehend trespass by the defendants.
3. The defendants 3 and 4 which is a Church and its trustees raise a rival claim of possession. According to them, the property was purchased in the year 1102 ME under Ext.B1 sale deed for the Thankippalli English Medium School which is under the third defendant Church. They are in possession and enjoyment of the property ever since Ext.B1, and the plaintiff does not have any right or possession over the same.
4. The courts below found that the plaintiffs have failed to prove their possession over the plaint schedule property and accordingly dismissed the suit.
5. Heard learned counsel Sri.N.Subramaniam and Sri.Lakshmi Narayanan on behalf of the appellantsplaintiffs and learned Senior Counsel Sri.T.Sethumadhavan on behalf of the contesting respondents on the following substantial question of law:
RSA No.1187 of 2012
:- 3 :-
_“Is the appreciation of evidence by the Courts below perverse, warranting interference under Section 100 CPC”_
6. The suit being one for injunction simplicitor, what is relevant is, the possession over the property. When the plaintiff traces his possession/claims to have derived possession in a particular manner, then the court will look into the claim as put forward, to arrive at a finding. In the plaint, the plaintiffs does not have a specific case as to how they came into possession of the property except for the statement that they are in possession as the legal heirs of Mathukutty Joseph who is the husband of the first plaintiff and father of the second plaintiff.
7. As PW1, the second plaintiff asserts that they trace possession under Ext.A37 document of the year 1119 ME (corresponding to the year 1944) executed by one Parvathy Amma to their predecessor Mathukutty. As per Ext.A37, Parvathy Amma conveyed the rights under a chitty hypothecation bond in
RSA No.1187 of 2012
:- 4 :-
favour of Mathukutty, the predecessor-in-interest of the plaintiffs. The property under mortgage therein was the one acre and 5 cents with a building situated thereon. On Ext.A37 document, Mathukutty filed OS 1043/19 ME. The suit was decreed. In the execution proceedings the building situated in the property alone was sold and purchased by Mathukutty. The plaint in OS 1043/1119 ME has been produced as Ext.A38. The 8[th] defendant therein is, Thanki St. Joseph Committee represented by its Vice President. In paragraph 9 of Ext.A38 plaint, it is stated that the property is in the possession of the 8[th] defendant Committee. Ext.B10 is the judgment in Ext.A38 suit wherein the court takes note of the contention that the 8[th] defendant therein is impleaded as the person in possession of plaint item no.1 therein which is the one acre 5 cents. Issue No.II raised in the said suit reads thus, “Has the 8[th] defendant a prior right over item no.1 ? If so, what is the amount ?”. While considering the said issue, in paragraph 5 of the said judgment, it is noted that, on the claim of
RSA No.1187 of 2012
:- 5 :-
the 8[th] defendant over the property in question, the plaintiff therein who is the predecessor-ininterest of the plaintiffs herein, gave up his claim over the property. It was accordingly held that the property is not liable for the plaint claim therein. Therefore, the predecessor of the plaintiff has admitted and acknowledged the possession of the Committee over the one acre 5 cents. Ext.A40 the sale certificate issued in OS 1043/1119 confirms that it is only the building situated on the property that was sold and purchased by the plaintiff's predecessor. That being so, the claim in the present suit based on Ext.A37 fails.
8. The plaintiffs rely on Ext.A36 order of the Land Tribunal, whereunder 10 cents of property from out of the 1 acre 5 cents was assigned as Kudikidappu to one Varghese Sebastian, wherein the respondent is, Mathukutty Joseph, the plaintiff's predecessor. It is relevant to note that in Ext.A36 order, it is stated that one Mathai Ouseph was holding 1 acre 5 cents of property on pattom. The
RSA No.1187 of 2012
:- 6 :-
chitty hypothecation bond referred to in Ext.A37 is created by the wife of Ouseph. In Ext.A36 it has been stated that the jenmom right of the property vests with the Thankipalli English Medium School Committee in the year 1102 ME. However, they are not made parties to Ext.A36 proceedings. Here it is to be noted that it is in the suit on the chitty hypothecation bond that the claim of the committee regarding possession of the property was acknowledged by the plaintiffs' predecessor. Therefore Ext.A36 does not help the plaintiffs to prove their possession over the property.
9. Ext.A1 is the Release Deed of the year 1978, executed by one Varghese and Sebastian in favour of the first plaintiff and her children including the second plaintiff whereunder, their rights as caretakers over the plaint schedule property is stated to be released by them. The schedule to the said document refers to the grant of 10 cents of kudikidappu under Ext.A36 and also the assignment of an extent of 15 cents to one Antony. It is pertinent to note that, in Ext.A1, the title is
RSA No.1187 of 2012
:- 7 :-
traced to the father-in-law of the first plaintiff who is the grand-father of the second plaintiff viz. Souriyar Mathukutti as having obtained the property under Ext.B1 Sale Deed No.1767/1102 ME corresponding to 1927. However, Ext.B1 Sale Deed shows that it is a conveyance in favour of the Thanki Church St. Joseph Committee English Medium School, represented by its Manager, the Treasurer and Vice President. Mathukutty was the treasurer of the Committee. Therefore, the plaintiffs or their predecessors could not claim vacant possession over the property under Ext.B1 since, the possession, if any, held by Mathukutty under Ext.B1, is only in his capacity as treasurer of Thanki St. Joseph Committee English Medium School. It is important to note that, Ext.B1 recites that the property is in the possession and enjoyment of Thankipalli. Therefore, going by the derivation as traced by the plaintiff it is not possible to find possession of the property with the plaintiffs, their predecessor Mathukutty or his predecessor. On the other hand, the documents referred to above indicates
RSA No.1187 of 2012
:- 8 :-
possession of the property with the Committee.
10. The learned counsel for the appellants would harp on the fact that, tax was paid by the plaintiffs for the property and also on the documents relating to payment of plantation tax and exemption thereto in favour of the plaintiffs. However, the said documents do not reveal the identity of the property since the same does not refer to the survey number of the property. On the other hand, Exts.B2 to B8 tax receipts produced by the contesting defendants show the details of the property and that they are paying the tax for the same. It is true that though there are yielding trees in the property no accounts are produced by the contesting defendants to prove that they are taking yields from the property. However, that by itself is not sufficient to dislodge the probative value of the evidence as noticed above. The Advocate commissioner can only speak about what he saw at the time of his visit at the property and he cannot speak about possession.
11. Both the courts below have appreciated the
RSA No.1187 of 2012
:- 9 :-
entire materials on record and have arrived at a finding. On the materials the conclusion arrived at by the courts below is a possible one and the same cannot be held to be perverse. The substantial question of law is answered accordingly.
12. The findings of the courts below are pure findings of facts and are based on materials. Merely because another view of the matter would be possible on a reappreciation of the evidence, this Court is not entitled to substitute the findings in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. [See Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166] .
In the result, the appeal fails and is accordingly dismissed. No costs.
Sd/- **SATHISH NINAN JUDGE**
kns/-
//True Copy//
P.S. to Judge
