Jayakumar and others v. Varkey

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** **RSA.No. 906 of 2003 ( ) ------------------------** **AGAINST THE DECREE AND JUDGMENT DATED 13-06-2003 IN AS 42/2002 of SUB COURT,THODUPUZHA** **AGAINST THE DECREE AND JUDGMENT DATED 27-07-2002 IN OS 27/2000 of MUNSIFF COURT,THODUPUZHA** **APPELLANTS/DEFENDANTS 1 TO 6/RESPONDENTS 1 TO 6: -------------------------------------------------** **1. JAYAKUMAR, S/O. RAMAN NAIR, MEDATHIL HOUSE, EDAVATTY KARA, KARIKKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **2. SHAJI, S/O. PADMANABHAN,PARATHAZHATHU HOUSE, DO DO.** **3. SOMAN,S/O. LATE SIVARAMAN, VALLILAMTHODATHIL HOUSE, DO DO.** **4. SUDHEER, S/O. NARAYANAN, THAZHATHUPARAYIL HOUSE, DO DO.** **5. SURESH, S/O. THANKAPPAN, KAYINKAL HOUSE, DO DO.** **6. VIJAYAN, S/O. GOPALAKRISHNAN, THITTIYIL HOUSE, DO DO.** **BY ADVS.SRI.N.SUBRAMANIAM** **SRI.P.T.GIRIJAN** **SRI.M.S.NARAYANAN SRI.PRAMODH.R SMT.USHA NARAYANAN** **RESPONDENT/PLAINTIFF/APPELLANT:** **------------------------------** **VARKEY, S/O. ULAHANNAN, THEKKEKKARA HOUSE, EDAVATTY KARA, KARIKKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **R1 BY ADV. SRI.S.SHYAM R1 BY ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL R1 BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.5.2017, THE COURT ON 22-06-2017 DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ....................................... R.S.A.No.906 of 2003 ........................................ Dated this the 22[nd] day of June, 2017. ## **JUDGMENT** The defendants in OS.No.27/2000 on the file of the Munsiff Court, Thodupuzha are the appellants herein. The suit was filed by the plaintiff, who is the respondent herein for injunction restraining the defendants from trespassing into the plaint schedule property and doing anything interfering with the peaceful possession and enjoyment of the plaint schedule property of the plaintiff. It is alleged in the plaint that the respondent herein is the owner in possession of 12 cents and its virivu comprised in Sy.Nos.1367/1/1, 1367/2/2 and 1394/1/12 of Karikkodu village as per Sale Deed No.3132/1977 of Karikkodu Sub Registry. It is surrounded by well defined boundaries on all sides. He is in possession and enjoyment of the same. The defendants are the neighbours. The 1[st] defendant was the President of Edavatty Sri Krishna Swami Kshethra Punarudharana Samithy which was formed for renovating the temple and defendants 2 to 6 were its members. There was an old shop room in the plaint schedule property. When that was demolished, the defendants approached him to provide some land for permitting them to construct a coffer (bhandaram) for the temple and that was declined by him. On account of that enmity, on 20.1.2000 under the leadership of the defendants, 50 persons tried to trespass into the plaint schedule 2 R.S.A.No.906 of 2003 property and attempted to construct a coffer on the eastern side of the property. The plaintiff made a complaint to the police and due to the intervention of the police, their attempt was thwarted and a case was registered as Crime No.35/2000 against the defendants and others. Apprehending further trespass, the plaintiff filed the above suit for injunction. 2. The appellants, who are defendants in the suit, entered appearance and filed written statement denying the allegation of existence of the Samithy as alleged in the plaint or their involvement in the activities of the aforesaid Samithy. According to them, within the boundary shown in the plaint schedule, about 25 cents of land is available, of which 11½ cents of land belongs to Edavatty Sri Krishna Swami temple and they are in possession of the same under Kidangoor Devaswom. They constructed a coffer only in the property where the temple had possession. There is also a stage in the property for the purpose of conducting various programmes during the festival and this land is used for conducting fire works and games as well. The temple procession starts from the property and the elephants of the temple are chained under the coconut tree in the property. The allegation that the defendants approached the plaintiff seeking permission to put up a coffer was denied by them. On the other hand, the suit was filed after demolition of the coffer belonged to the temple and another crime was registered as Crime No.41/2000 in respect of that 3 R.S.A.No.906 of 2003 incident against the plaintiff and his men. They have no intention to trespass into the property belonged to the plaintiff and the allegation that the plaintiff is possession of 12 cents and its virivu is not correct. He was in possession of only 12 cents of land covered by a sale deed. The suit is bad for non joinder of necessary parties for non impleadment of the temple and its authorities. They prayed for dismissal of the suit. 3. On the basis of the pleadings, the following issues are framed by the Court below: i. Whether the suit is bad for non joinder of necessary parties? ii. Whether the plaintiff is in exclusive possession of the plaint schedule property? iii Whether the plaintiff is entitled to get a decree for permanent prohibitory injunction against the defendants as prayed for ? iv. Reliefs and costs? 4. The plaintiff, the Commissioner and two witnesses were examined on the side of the plaintiff as PWs 1 to 4 and Exts. C1 and C1(a) and C2 and C2(a) were marked on the side of the plaintiff. The first defendant was examined as DW1 and no documents were marked on their side. After considering the evidence on record, the trial court found that as per Ext.A2 document, the plaintiff obtained only 12 cents of land and as per Ext.C2(a) plan, the plaint schedule property is having 24.897 cents 4 R.S.A.No.906 of 2003 and he cannot claim possession of the property larger than the extent mentioned in the document without explaining as to how he had come into possession of the same and further in the Commissioner's report, noted the presence of waste of palm leaves given as food to the elephant under a coconut tree which probablised the case of the defendants and since the defendants claimed that Edavatty Sri Krishna Temple is in possession of 11 ½ cents of land in the plaint schedule property claimed by the plaintiff, without impleading the deity, the suit is bad for non joinder of necessary parties and the plaintiff approached the Court below with unclean hands claiming more extent and as such, he is not entitled to get injunction as prayed for and dismissed the suit. 5. Aggrieved by the same, the plaintiff filed AS.94/2002 before the District Court, Thodupuzha which was made over to the Sub Court, Thodupuzha for disposal, where it was renumbered as AS.No.42/2002. The lower appellate court had on the basis of the arguments advanced by both sides, framed the following point for consideration : Whether the judgment and decree of the trial court was liable to be interfered with? 6. After hearing both sides, the first appellate court came to the conclusion that, in a suit for injunction, the plaintiff need to prove only actual possession of the property and it would be seen 5 R.S.A.No.906 of 2003 from the Commissioner's plan and report that the plaint schedule property comprised as a single plot surrounded by definite boundaries and plaintiff was found to be in possession of the same and the defendants had not proved any right over the same and from the allegations in the written statement, the apprehension of the plaintiff was genuine and no document had been produced to prove that the temple has got any property as claimed by the defendants within the plaint schedule property and the Court below was not justified in dismissing the suit and reversed the finding of the Court below and decreed the suit holding that the finding in this case will not affect the right of the temple, if any, as they were not parties to the proceedings and allowed the appeal and decreed the suit as prayed for granting a decree for injunction against the defendants against trespass into the plaint schedule property or causing any obstruction to the peaceful possession and enjoyment of the plaint schedule property by the plaintiff. Dissatisfied with the same, the present second appeal has been preferred by the appellants/defendants before the trial court and respondents in the lower appellate court. 7. At the time of admission of the second appeal, this Court has framed the following substantial questions of law which arise for consideration: i. Whether the lower appellate court was justified in reversing the judgment and decree of the trial court without referring to any 6 R.S.A.No.906 of 2003 item of evidence to show that the plaintiff was in possession of the entire property when document of title produced by the plaintiff does not show the extent of the property now claimed by the plaintiff? ii. Whether in calculating the virivu to a property, can there be any virivu or addition to an equal extent as in the property purchased by the sale deed and is not virivu confirmed to a marginal extent? 8. Heard Sri. N. Subramaniam, counsel appearing for the appellants and Sri.S. Shyam, counsel appearing for the respondent. 9. Counsel appearing for the appellants submitted that as per Ext.A2 title deed of the plaintiff, he had obtained only 12 cents of land from his predecessor and there was no virivu mentioned in the document. For the first time, he is claiming virivu in the plaint and it is no pleading as to how he had come into possession of so much extent of land as well. Further there is no definite extent mentioned either in the plaint or in the schedule of property in respect of which he is claiming injunction. No attempt was made to amend the plaint on the basis of the Commissioner's report. The lower appellate court was not justified in reversing the finding of the court below regarding possession of the property especially when the Commissioner's report showed the existence of the remnants of palm leaves under a coconut tree which was normally given as food to the elephant. That showed that a portion of the 7 R.S.A.No.906 of 2003 plaint schedule claimed by the plaintiff was enjoyed by the temple and without impleading the temple, the lower appellate court should not have reversed the finding of the court below on this aspect. The extent claimed in the plaint do not tally with the extent found by the Commissioner, on the basis of which injunction was granted by the lower appellate court. In fact, the lower appellate court had granted relief over and above what was pleaded by the plaintiff which is impermissible in law. Further, the virivu cannot extent equal to the extent of the property covered by the title deed and as such, the lower appellate court was not justified in decreeing the suit and the same is liable to be interfered with. The counsel also relied on the decision reported in _**Smt. Rani and another v. Smt. Santa Bala Debnath and others**_ (AIR 1971 SC 1028), _**Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others**_ (AIR 1977 SC 890), _**Bachhaj Nahar v. Nilima Mandal and others**_ (2009 (4) MLJ 900 SC), _**M. Rajagopal Mudaliar v. K.R. Venkataraman by power agent K.G. Ramanathan**_ (2002(1) MLJ 529) and _**Smt. N. Savithramma and others v. B.N. Sheshadri**_ (ILR 1999 Karnataka 4336) in support of his case. 10. On the other hand, learned counsel for the respondent submitted that it is a suit for injunction simplicitor and the plaintiff need only to prove that he is in possession of the plaint schedule property within the boundaries mentioned therein. Even a 8 R.S.A.No.906 of 2003 trespasser can maintain an action for injunction against the persons who are trying to interfere with the possession who has no better title or possession than that of the plaintiff in respect of the property in dispute. Further the Commissioner's report will go to show that the entire property covered by the boundaries is in the possession of the plaintiff and there is no symptom of any probability of temple being in possession of any portion of the property as claimed by the defendants. Further, the document produced by the plaintiff will prove the existence of a building in the property, that probabilises the case of the plaintiff. So the lower appellate court was perfectly justified, after evaluating the evidence on facts, in coming to the conclusion that the plaintiff was in possession of the plaint schedule property identified by the Commissioner in Ext.C2(a) plan and the defendants had failed to prove any right or possession over the plaint schedule property and decreed the suit as prayed for after setting aside the decree and judgment passed by the trial court. Since the case was decided on the basis of facts on proper appreciation of evidence, there is no question of law or substantial question of law arises for consideration so as to enable this Court to interfere with the decree and judgment passed by the lower appellate court. So according to him, no interference is called for. 11. The case of the plaintiff in the plaint was that he obtained the property having an extent of 13 cents as item Nos.1 and 2 as R.S.A.No.906 of 2003 9 per Ext.A2 document. Out of which, he had sold one cent on the western side to one Sebastian and he is in possession of remaining 12 cents and virivu and defendants claiming to be the office bearers of Edavatty Sri Krishna Swami Kshethra Punarudharana Samithy wanted him to give some portion for construction of coffer for the temple. When this was denied, they attempted to trespass into the property and construct a coffer, which was prevented by the plaintiff with the help of the police. The plaintiff also contended that he is in possession of the property within the boundaries irrespective of the extent mentioned in the document and the defendants have no manner of right to interfere with the same. So he is basing his action on the basis of possession of land lying as a compact plot within the boundaries mentioned in the plaint. According to the defendants, there is more than 25 cents of lands within that boundary and out of which, the plaintiff has got possession of only 12 cents and 11½ cents of land belonging to Kidangoor Devasom is in the possession of Edavatty Sri Krishna Temple and they are using the same for chaining the elephant, conducting programmes during festival and there is a stage in the property for that purpose and it is being used for conducting fireworks and games during festival season of the temple. Though both the parties contended that crimes have been registered in respect of the incident mentioned in the plaint as well as in the written statement, no such document is forthcoming 10 R.S.A.No.906 of 2003 in this regard. The trial court on the basis of the document found that there was no virivu mentioned in the document and in the Commissioner's report it was mentioned that dried palm leaves were seen under a coconut tree which, according to the trial court, probablises the case of the defendants that it is being used for temple purpose and the plaintiff has failed to prove possession over the entire property claimed and dismissed the suit. But the appellate court re-appreciated the evidence and came to the conclusion that since it is a suit filed by the plaintiff for injunction simplicitor, possession of the property as on the date of suit alone need be considered and on the basis of the Commissioner's report and evidence adduced on the side of the plaintiff and non production of the documents to prove that temple has got any property in that portion and the appellate court had reversed the finding of the trial court and granted a decree for injunction in favour of the plaintiff against the defendants. 12. It is true that as per the document, Ext.A2, the plaintiff had obtained only 13 cents of land, of which he had sold one cent and the remaining portion as per the document is only 12 cents. It is also seen from the document that there is no virivu mentioned in the document, but according to the plaintiff, apart from the extent mentioned in the document, he is in possession of some land as virivu and enjoying the same as a compact plot within the boundaries mentioned in the document. In order to prove his R.S.A.No.906 of 2003 11 case, Commission was taken out and the Commissioner with the help of Surveyor prepared Ext.C2(a) plan and submitted Ext.C2 report where he had categorically stated that the plaintiff is in possession of the plots ABCDEF having an extent of 10.08 Ares equivalent to 25 cents. |According to the Commissioner, the property covered by Ext.A2 shown as A,B and C schedule will be 27½ cents, of which A and B schedule will be having an extent of 13½ cents. Further the Commissioner had noted the property situated in Survey Nos.1394/1/12 part, 1395/9 part, 1367/1/3 part and 1367/2 part of which Survey No.1395/9 part having an extent of .65 sq.meter is not seen in the document. However, it is noted by the Commissioner that this plot is situated as a compact plot with definite boundaries on the east, north and south and it is in the possession of the plaintiff. He could not find any stage or any other thing within this plot which according to the defendants, was being used for conducting programmes of the temple. The Commissioner also noted that there is nothing to indicate that any portion of this plot is in the possession of any other person. Further it will be seen from Exts.C1 and C1(a) also that it is lying as a single plot and no stage either temporary or permanent or any other structure indicating that is used for temple purpose was seen in the property. Further it was brought out in evidence that there was a building in the property evidenced by Ext.A4 document and admitted by the defendants as well which was later demolished and 12 R.S.A.No.906 of 2003 it was in the name of the plaintiff. The Commissioner on the first inspection had found the remnants of the building on the eastern side of the property. So all these things probablise the case of the plaintiff that he is in possession of the entire plot covered by plot ABCDF in Ext.C2(a) plan and the temple has no property there as claimed by the defendants. 13. In a suit for injunction, it is settled law that, the plaintiff need only to prove the possession of the property claimed by him as on the date of suit and he need not prove that he has got title to the property claimed by him and this will be relevant only if he wants to get injunction against true owner of the property. Admittedly defendants are not claiming any right or possession over the plaint schedule property. The allegation mentioned in the written statement probablise the apprehension of the plaintiff that the defendants are trying to trespass into the plaint schedule property making some claim over the same on behalf of the temple Punarudharana Samithy. Further the evidence of PWs3 and 4 independent witnesses examined on the side of plaintiff apart from his oral evidence as PW1 will go to show that the plaintiff is in possession of the property as a compact plot within the well defined boundaries separating the same from other properties. The defendants did not dispute the identity of the property located by the Commissioner and in fact, ExtC2 and C2(a) report and plan of the Commissioner were marked through DW1. Merely because 13 R.S.A.No.906 of 2003 some old dried palm leaves were seen alone is not a ground to come to a conclusion that it is being used for chaining the elephant in the property especially when there is no evidence forthcoming to prove that the temple has got any elephant which is being chained in the property regularly. Further since the plaintiff is not claiming any relief against the temple and he was not apprehending any danger from the temple authorities, the lower appellate court was perfectly justified in coming to the conclusion that the suit is not bad for non joinder of necessary parties as observed by the trial court and rightly reversed that finding. 14. Since the plaintiff had established possession over the property claimed by him scheduled to the plaint and since the defendants could not prove that they have got any better title over the plaint schedule property, the lower appellate court was perfectly justified in granting a decree for injunction against the defendants setting aside the decree and judgment of the trial court dismissing the suit. 15. Virivu means some property in excess and the plaintiff may not be knowing the exact extent of the property as virivu and that was the reason why it is normally shown by the parties, if they are in possession of some extent of property than the extent mentioned in the document as virivu without mentioning the exact extent of land in their possession. Since the plaint schedule property has been identified by the Commissioner on the basis of the 14 R.S.A.No.906 of 2003 description given in the plaint, merely because it was not amended in tune with the Commissioner's report, is not a ground to deny the relief especially when the description of the property or its boundaries were not disputed by the defendants but their case was that within the boundary Edavatty Sri Krishna Temple was also having some property. So the submission made by the counsel for the appellants that without impleading the temple authorities, without specifying the exact extent in the plaint schedule property, the lower appellate court should not have granted a decree for injunction appears to be not sustainable in law. 16. The learned counsel appearing for the appellants relied on the decision reported in _**Smt. Rani and another v. Smt. Santa Bala Debnath and others**_ (AIR 1971 SC 1028) for the proposition that in the absence of any issue raised regarding the plea of fraudulent representation and exercise of undue influence, no decree could have been granted on that ground. So in the absence of such plea, evidence and issue granting a decree on that basis without plea and evidence by the High Court was set aside by the Apex Court. That was not the case in hand. 17. Further in the decision reported in _**M. Rajagopal Mudaliar v. K.R. Venkitaramman by power agent K.G.**_ _**Ramanathan**_ (2002 (1) MLJ 529) it has been held that when a party had purchased only 32 feet x 75 feet and there is no ambiguity in the measurement, it is not necessary to go into the 15 R.S.A.No.906 of 2003 question of boundaries with intention of the parties. When period of adverse possession has been rejected by the lower appellate court, the case of the respondent mainly depends upon the sale deed whether a specific extent alone has been conveyed, it has been held that the respondent is not entitled to claim more than that taking shelter under the boundaries. The same view was reiterated in the decision reported in _**Smt. N. Savithramma and**_ _**others v. B.N. Sheshadri**_ (ILR 1999 Karnataka 4336). It is further held in the Karnataka decision that the theory should be applied only to make marginal adjustments and not to the extent of giving undue advantage to the person who claims to have purchased under the boundaries enclosing a large extent. 18. In this case, as per Ext.A2, no side measurement or middle measurement was given as in the case of the decisions mentioned above. When there was specific measurements given along with the extent of the property under the sale deed itself, then the party to the document is not entitled to claim more than what was assigned based on the boundaries mentioned in the document. But that was not the case here. So the dictum laid down in the above decisions are not applicable to the facts of this case. 19. Further in the decision reported in _**Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others**_ (AIR 1977 SC 890), the Apex Court held that it is well settled that decision of a case cannot outside the plea of the parties and it is the case R.S.A.No.906 of 2003 16 pleaded which has to be founded. That was a case where the High Court had reversed the decree and judgment passed by the courts below based on certain pleas which were not set up by the parties in the pleadings and under such circumstances, the Apex Court had reversed the finding of the High Court. That was not the case here. 20. The plaintiff had specifically put up a case in the plaint that he is in possession of excess area than the extent mentioned in the document and he based his action on the basis of possession within boundaries and as such, none of the decisions relied on by the counsel for the appellants cited supra are applicable to the facts of this case. 21. The lower appellate court had on re-appreciation of evidence, correctly considered the legal aspects while granting injunction on the basis of possession and rightly came to the conclusion that the plaintiff has proved possession on the basis of the evidence and rightly granted a decree for injunction as prayed for in respect of the plaint property which was identified by the Commissioner as plot ABCDEF in Ext.C2(a) plan reversing the decree and judgment of the trial court dismissing the suit. Since a decision has been arrived at by the lower appellate court on the basis of facts and evidence and there is no substantial question of law arises for consideration, this Court do not find any reason to interfere with the decree and judgment passed by the lower appellate court. So the appeal lacks merit and the same is hereby R.S.A.No.906 of 2003 17 dismissed. In the result, the appeal fails and the same is hereby dismissed confirming the decree and judgment passed by the lower appellate court. Considering the circumstances of the a case, parties are directed bear their respective costs in the appeal. Sd/- **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge cl