Jayaram v. Gopi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944** **RSA NO. 639 OF 2009** **AGAINST THE JUDGMENT IN AS 115/2004 OF ADDITIONAL DISTRICT COURT,KOTTAYAM OS 256/1998 OF MUNSIFF COURT, VAIKOM** **------** ## **APPELLANT/RESPONDENT/PLAINTIFF:** JAYARAM, S/O RAJAN, LAKSHAMVEETTIL, AKKARAPPADATHU WARD NO.1, UDAYANAPURAM PANCHAYATH, VADAKKEMURI VILLAGE, VAIKOM TALUK. BY ADV SRI.JAMES MATHEW KADAVAN ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** |1|GOPI, S/O KESHAVAN, PATHILVEETTIL HOUSE,| |---|---| ||VADAKKEMURI VILLAGE, AKKARAPADAM P.O., VAIKOM TALUK.| |2|LEELA, W/O. GOPI, PATHILVEETTIL HOUSE,| ||VADAKKEMURI VILLAGE, AKKARAPADAM P.O., VAIKOM TALUK.| |3|SASI, S/O. KESHAVAN PATHILVEETTIL HOUSE,| ||VADAKKEMURI VILLAGE, AKKARAPPADAM P.O.,VAIKOM TALUK| |4|VIJAYAN, S/O. SANKUNNI,| ||RANDUKANDATHIL HOUSE, VADAKKEMURI VILLAGE, AKKARAPPADAM P.O.,| ||VAIKOM TALUK.| |5|MANOHARAN, S/O. SANKUNNI, RANDUKANDATHIL HOUSE,| ||VADAKKEMURI VILLAGE, AKKARAPPADAM P.O., VAIKOM TALUK.| ||BY ADVS.| ||SRI.S.RADHAKRISHNAN| ||SHRI.S.RAJMOHAN| THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. S. A. No.639 of 2009** **= = = = = = = = = = = = = = = = = = Dated this the 5[th] day of December, 2022** ## **J U D G M E N T** The suit for prohibitory injunction against trespass was decreed by the trial court. The decree was reversed by the first appellate court and the suit was dismissed. Aggrieved, the plaintiff is in Second Appeal. 2. The plaint schedule property has an extent of 3.5 cents. Plaintiff claims title and possession over the same as per Ext.A1 Sale Deed dated 25.04.1998. Adjoining the plaint schedule property on its southwestern side is the property of the defendants. The second defendant is the wife of the first defendant. Defendants 1 and 3 are the sons of one Kesavan. Defendants 4 and 5 are the children of one Sankunni. Kesavan and Sankunni were brothers. The suit is filed alleging attempt to trespass by the defendants. **RSA No.639 of 2009** -: 2 :- 3. The defendants claim that, they are cultivating tenants of the plaint schedule property, the lease having been obtained from the predecessor of the executant of Ext.A1. It was prayed that the plea of tenancy is to be referred to the Land Tribunal. 4. The trial court, as per order on IA 1561/1998 held that, the suit being one for injunction simplicitor, the plea of tenancy need not be referred to the Land Tribunal. The trial court found that the plaint schedule property is identifiable and that the plaintiff is in possession of the plaint schedule property. Accordingly, the suit was decreed. The first appellate court held that, the plaint schedule is not identifiable. The plea of the defendants that they are cultivating tenants of the property, was held to be prima facie probable. It was also held that a suit for mere prohibitory injunction could not be maintained. Accordingly, the suit was dismissed. **RSA No.639 of 2009** -: 3 :- 5. Heard Sri.James Mathew Kadavan, learned counsel for the appellant and Sri.P.Jayasankar, learned counsel for the respondents, on the following substantial questions of law :- _(i) Has there been a misreading of the evidence on record by the first appellate court, leading to an erroneous finding that the plaint schedule property is not identifiable ?_ _(ii) Was the first appellate court right in having relegated the plaintiff to a separate suit on title on the mere plea of the defendants that they are the cultivating tenants of the property, without any material to at least prima facie suggest the same ?_ 6. Firstly, I shall deal with the issue as to whether the plaint schedule property is identifiable at the spot or not. On the southern side of the plaint schedule property is the remaining property of the vendor. The Commissioner has reported that there is a 'thodu' separating the two properties. The eastern **RSA No.639 of 2009** -: 4 :- boundary of the plaint schedule property is the Muvattupuzha river. On the northern side of the plaint schedule property is a public way. On the western side of the plaint schedule property is the property of the plaintiff's father. Separating the plaint schedule property and the property of the plaintiff's father is a vegetative fencing. To the south of the said property, is the property of the defendants. 7. The commissioner noted one boundary stone each on the north-eastern and south-eastern corners of the property of the plaintiff's father. In the same alignment with the said boundary, towards south, was seen a row of trees on the eastern boundary of the defendant's property. The trees were seen standing in a line. On the eastern side of the said trees is the property of the vendor of the plaint schedule under Ext.A1 viz. Parameswara Iyer. It is evident from the commissioner's report and sketch that there is a small **RSA No.639 of 2009** **==> picture [34 x 9] intentionally omitted <==** stretch of land in between the property of the plaintiff's father and the property of the plaintiff's vendor, which shares common boundary between the plaint schedule and the defendant's property. Through the said portion, is seen a pathway leading from the defendants property into the plaint schedule property. That they are using the said portion for access, is evident. The Commissioner further reported that, at the said portion, there is no specific demarcating boundary. 8. From the above it is evident that, apart from a small area of the plaint schedule property which shares its boundary with the defendant's property on the west, the property is lying well demarcated. But for the said common boundary, the boundary of the plaint schedule property on its west and that of the defendant's property on its east are lying well demarcated and are in straight lines. Just because there is a small area where there is sharing of boundary between the plaint **RSA No.639 of 2009** -: 6 :- schedule and the defendant's property, there is no reason to hold that the plaint schedule property is not identifiable on the spot. This is so because, except the said portion the entire western boundary of the plaint schedule property and the eastern boundary of the defendants property is well demarcated in a straight line. The lie of the properties is further evident from the sketch attached to the Commissioner's Report. The sketch reveals that there is no scope for any ambiguity regarding the identity of the plaint schedule property. Therefore, it could only be concluded that, the plaint schedule property is clearly identifiable on the spot. 9. Now coming to the issue of possession, I will deal with the improvements/cultivations, if any, found in the plaint schedule property. The commissioner noticed that, on the eastern extremity of the plaint schedule property and adjoining the river bank, there exists 15 trees which include 3 teak trees, 2 **RSA No.639 of 2009** -: 7 :- 'poovarisu', 4 tamarind trees etc. In the remaining portion, two coconut trees and two banana plants. The Commissioner reported that, among the trees in the property, but for one coconut tree, the other trees are not fruit bearing. The Commissioner noted that the trees similar to those on the eastern extremity of the plaint schedule property are found at the river banks of the other nearby properties also. The Commissioner noticed that there are no indications of any maneuvering having been done to the coconut trees standing in the property, and that there are no indications of any pruning having been done to the teak and 'poovarisu' standing in the property. The commissioner noticed that, in the defendant's property there existed four coconut trees of 50 years age, another coconut tree which is yet to yield, and 5 coconut saplings. The Commissioner also noticed 13 yielding areca nut trees and 8 small areca nut trees. He also noticed 10 banana plants. **RSA No.639 of 2009** -: 8 :- 10. Now coming to the nature of the remaining property of the vendor situated on the southern side of the plaint schedule property, the Commissioner could notice only one areca nut tree and two coconut trees. 11. From the above, it is evident that while the property of the defendants are improved by various cultivations, no such activities are going on in the plaint schedule property and the remaining property of the vendor on the south. The evidence indicates that, the plaint schedule property and the remaining property of the vendor on the south are left unattended without being put to any use. No evidence of exercise of any particular acts of possession have been brought out. When the definite plea of the defendants is that they are cultivating tenants of the plaint schedule property and the remaining property of the vendor on the south since the year 1950, necessarily there would be indications to that effect in the manner of enjoyment of **RSA No.639 of 2009** -: 9 :- the property. The same is conspicuously absent. While observing so I am conscious that, the question as to whether the defendants are cultivating tenants or not, is not a matter for determination in the present suit. The only question that falls for determination is as to, who is in the possession of the property as on the date of the suit. Suffice to notice that, there are no indications to show exercise of possession by the defendants over the plaint schedule property as on the date of suit in spite of a plea of “cultivating tenant”. The plaintiffs are purchasers of property under Ext.A1 Sale Deed from its owner. In the absence of any material to show that the property is in the possession of any third parties, there is no reason to assume that the plaintiff did not obtain possession of the property under Ext.A1 Sale Deed and that the plaintiff is not in possession. The mere fact that there exists beaten tracks from the defendants' property into the plaint **RSA No.639 of 2009** -: 10 :- schedule property, showing that the defendants were having access to the plaint schedule property, does not mean that they are in possession of the plaint schedule property. This is so since the property is lying open and unenclosed, and with the public road on the north. 12. On the sum total of the discussions as above, I am inclined to hold that the plaintiff has established his possession of the plaint schedule property as on the date of suit. The trial court had appreciated the entire materials on record including the Commissioner's Reports in extenso and had arrived at such conclusion. The first appellate court has failed to take note of the significance of the matters reported by the Commissioner, especially regarding the nature of the improvements in the properties. There has been a misreading of the Commissioner's Report by the first appellate court in holding that the plaint schedule property is not identifiable. The finding regarding **RSA No.639 of 2009** -: 11 :- possession is based on such appreciation. The substantial question of law _(i)_ is answered accordingly. 13. Relying on the judgment of the Apex Court in _**Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. And Ors. 2008 4 SCC 594**_ , the learned counsel for the respondentsdefendants would contend that, since the defendants raised a plea that they are the cultivating tenants of the property, there is a real dispute on the title of the plaintiffs. Therefore, the mere suit for prohibitory injunction is not maintainable. The plaintiff should have got the plaint amended as one for declaration of title, it is argued. The first appellate court has also adopted such view. That the vendor under Ext.A1 in favour of the plaintiff or its predecessors had title to the plaint schedule property is not in dispute. All that the defendants claim is that they are cultivating tenants under the plaintiff's predecessor in interest. But for a bald plea that the defendants are cultivating **RSA No.639 of 2009** -: 12 :- tenants, there is nothing on record even to prima facie suggest the same. The defendants have not even mentioned in the written statement as to from whom the lease was taken, whether there is any document evidencing the lease, whether it was oral or otherwise. It is true that the plea of tenancy cannot be decided by the civil court but is to be referred to Land Tribunal under Section 125(3) of the Land Reforms Act. The suit being one for injunction simplicitor, the question is one of possession and not on the nature of possession. Merely on such a wild plea that they are the cultivating tenants, the plaintiff need not be called upon to sue on his title; or else, any such suits for injunction could be defeated by merely disputing the title of the plaintiff. Therefore, on the materials on record, I am unable to agree with the submissions of the learned counsel for the respondents that the suit for injunction is not maintainable and the plaintiff should have sued **RSA No.639 of 2009** -: 13 :- on his title. Substantial question of law _(ii)_ is answered accordingly. 14. On the discussions as above, I am inclined to interfere with the judgment of the first appellate court and restore the judgment of the trial court. Resultantly, the Regular Second Appeal is allowed. The judgment and decree of the first appellate court is set aside and that of the trial court is restored. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge