## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938**
**RSA.NO. 150 OF 2015 (A) -----------------------**
**AGAINST THE JUDGMENT AND DECREE DATED 07-06-2011 IN A.S. NO. 27 OF 2007 OF THE DISTRICT COURT,PATHANAMTHITTA**
**AGAINST THE JUDGMENT AND DECREE DATED 16-12-2006 IN O.S. NO. 137 OF 2002 OF THE MUNSIFF COURT,PATHANAMTHITTA**
**APPELLANT/APPELLANT/PLAINTIFF:**
**--------------------------------**
**JOHN VARGHESE S/O.VARGHESE, KUZHIKALAVAYALIL HOUSE, MEKOZHOOR MURI, MYLAPRA VILLAGE.**
**BY ADV. SRI.DEEPU THANKAN**
**RESPONDENTS/RESPONDENTS/DEFENDANTS-APPELLANT/PLAINTIFF:**
**---------------------------------------------------------**
**1. T.E.MATHEW, THEKKEDATHU HOUSE, MURUKKAMMOODU.P.O., KAYAMKULAM VILLAGE.**
**2. ROSAMMA JOHN,**
**W/O.JOHN VARGHESE, KUZHIKALAVAYALIL HOUSE, MEKOZHOOR MURI, MYLAPRA VILLAGE.**
**BY ADVS. SRI.JOHN K.GEORGE SRI.M.A.PRABHU**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **DST**
## **K. HARILAL, J.**
## **= = = = = = = = = = = = = = = = = = = = =**
## **R.S.A. No. 150 of 2015**
**- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 17th day of November, 2016
## **J U D G M E N T**
The appellant is the plaintiff in O.S. No.137 of 2002 on the files of the Munsiff's Court, Pathanamthitta as well as the appellant in A.S. No.27 of 2007 on the files of the District Court, Pathanamthitta. The above said suit is one for
injunction, restraining the defendants from trespassing into the plaint schedule item No.1 property. According to the plaintiff, he had obtained title and possession over the said property, by virtue of Ext.A1 sale deed dated 05.04.2002. Item No.1 is having an extent of 35 cents and it lies as northern portion of 70 cents. Item No.2 having an extent of 35 cents belongs to the defendants, by virtue of Ext.B1 settlement deed of 1997 and it is lying immediately on the south of
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item No.1, which belongs to the defendants and both properties are clearly separated by boundaries. Now, the 1[st] defendants claims that he is entitled to get 53½ cents, which is the half of 1 Acre and 7 cents as mentioned in the prior document and by raising such a claim, he is attempted to trespass upon the plaint schedule property. Hence, the suit was filed with the aforesaid reliefs.
2. In the written statement, the 1[st] defendant contended that the the plaint schedule properties originally belonged to his father by name 'Easow' and the total extent of the property is only 70 cents, though, it was described as 1 Acre and 7 cents in the prior title deed. In the year 1993, 'Easow' settled the property to 1[st] defendant's elder brother 'Varghese' by Ext.A2. According to him, in the year 1997, the said 'Varghese' executed Ext.B1 settlement deed, in respect of northern 53½ cents in
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favour of the 1[st] defendant and he had put up boundary on the southern side planting granite pillars, pursuant to the execution of Ext.B1. Thereafter, he is in absolute possession and enjoyment of 53½ cents of property. It is also contended that out of 70 cents, earlier, their father 'Easow' had sold away 6½ cents of property in favour of the plaintiff for a pathway. Thereafter, 'Varghese' sold away 10 cents of property, which was lying in between 6½ cents of property and the northern 53½ cents of property of the 1[st] defendant, in favour of the plaintiff, by virtue of Ext.B3. Thus, according to the 1[st] defendant, there was no property as described in Ext.A1 sale deed and it is a forged document created by daughter of Varghese and now the plaintiff is taking advantage from the said forged document, for making undue gain. According to him, the plaintiff have neither title
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nor possession over the plaint schedule item No.1 property and no property was conveyed under Ext.A1 sale deed.
3. On the aforesaid rival pleadings, both parties adduced evidence consisting of oral testimonies of PWs1 to 5 and Dws1 to 3, Exts.A1 to A9, Exts.B1 to B3, Exts.C1 to C3 and Ext.X1. After considering the evidence on record, the trial court found that no property had been conveyed to the plaintiff under Ext.A1 sale deed and he had neither title nor possession over 35 cents of property, as alleged in the plaint.
4. Feeling aggrieved, though the plaintiff has preferred an appeal, the lower appellate court also after re-appreciating the evidence on record, concurred with the findings of the trial court and dismissed the appeal. The legality and propriety of the concurrent findings, whereby the court below
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rejected the case of the appellant, are challenged in this Regular Second Appeal.
5. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents.
6. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the courts below went wrong by meticulously considering the title of the properties in a simple suit for injunction. It is also contended that the court below failed to consider the sustainability of Ext.B1 settlement deed as the same was executed by 'Varghese', alone, the son of Easow, when his father had a life estate over the said property.
7. _Per contra,_ the learned counsel for the respondents advanced arguments to justify the concurrent findings of the court below. According to him, when possession is claimed under title alone,
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the court below is justified in considering the title also in a suit for simple injunction. It is also contended that the plaintiff has not challenged the legality of Ext.B1 document in their pleadings. On the other hand, the defendants admitted the execution of Ext.B1 document and in such circumstances, the court below is justified in considering the legality of Ext.A1 sale deed.
8. It is not disputed that the title and extent of the property is only 70 cents. Though, the extent of property described as 1 Acre and 7 cents in the prior title deed and the said 70 cents originally belonged to their father 'Easow'. The plaintiff further admitted that father executed a settlement deed in favour of his elder brother 'Varghese', with respect to the entire 70 cents of property reserving a life estate in his favour as Ext.A2 and pursuant to Ext.A2, 'Varghese' executed
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Ext.B1 settlement deed in favour of the 1[st] defendant with respect to 53½ cents of property, which was lying as northern portion of entire 70 cents of property. It is also not disputed that after Ext.A2, his brother 'Varghese' had 10 cents of property between the 1[st] defendant property and 6 cents of property, which was given to the plaintiff for pathway by his father. The aforesaid 10 cents of property was given to the plaintiff, by Ext.B3. Therefore, on a combined reading of Exts.A1, A2, B1 and B3, it is discernible that after the sale of 53½ cents of property to the defendant, actually there was no property as claimed by the plaintiff. It is pertinent to note that Ext.A1 was executed in the year 2002 and Ext.B1 was executed in the year 1997. So, the courts below are justified in finding that there is no property having an extent of 35 cents at the time, when Elizabeth, the daughter of 'Varghese'
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had executed Ext.A1 sale deed in favour of the plaintiff.
9. So, the next question to be considered, whether the courts below are justified in considering the title deed, when the suit is one for simple prohibitory injunction only.
10. Going by the plaint averments, the specific case of the plaintiff is that he had purchased 35 cents of property, by Ext.A1 and pursuant to Ext.A1, he took possession of 35 cents lying on the northern portion 70 cents and the properties are clearly separated by the boundaries put up by him, after the said purchase. Thus, the possession is claimed under Ext.A1 title only. As rightly held by this Court in _**Avira Joseph v. Varghese Mathi and Others**_ [2010(3) KHC 564], if the issue of possession was so interlinked with the title and possession claimed under the umbrella of title only, the courts below
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are justified in considering the title also. But, in the instant case, after considering the title, both courts considered the oral evidence adduced by the plaintiff with respect to the alleged possession of 35 cents in his favour. After analysing the evidence of PWs2 to 4, the courts below arrived at a finding that those witnesses cannot be considered as independent witness and their evidence cannot be relied on to arrive at a conclusion that the plaintiff is in possession of 35 cents of property . On the other hand, the courts below found that the defendant has succeeded in proving his possession over the northern 53½ cents of property out of 70 cents, by producing Ext.B2 series of tax receipts and examining DW2.
11. The learned counsel for the appellant further contended that the court below has not considered the sustainability of Ext.B1 settlement
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deed. But, going by the judgment passed by the lower appellate court, it could be seen that the lower appellate court has considered that issue also. Going by the appellate court judgment, it could be seen that the court below rejected the challenge against Ext.B1, on the reason that there was no pleadings challenging the sustainability of Ext.B1 settlement deed and in the plaint and the plaintiff himself admitted the execution of Ext.B1 settlement deed.
12. As rightly noted by the lower appellate court, even though, the 1[st] defendant has claimed title and possession over the northern 53½ cents property under Ext.B1 settlement deed, the plaintiff has not filed a replication, challenging the validity of Ext.B1 settlement deed or raising a counter claim to declare his alleged title and possession. Therefore, in the absence of sufficient
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pleadings, the court below is justified in not considering the legal validity and sustainability of Ext.B1 settlement deed. In the above analysis, in the absence of any illegality or perversity in the appreciation of evidence, I do not find any reason to interfere with the concurrent findings of the court below and no question of law arises for consideration in this appeal.
This Regular Second Appeal is dismissed accordingly.
DST
Sd/- **K. HARILAL,** //True copy// P.A. To Judge
**JUDGE**
