Kesavan and Others v. Saseendran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934** **SA.No. 777 of 2001 ( A ) ----------------------** **AS.60/1993 of I ADDL.DISTRICT COURT, PALAKKAD OS.218/1989 of MUNSIFF COURT, CHITTUR** ## **APPELLANT(S):** ## **------------** **1. KESAVAN, S/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **2. JANAKI, D/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **3. ARUMUGHAN, S/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **4. KAMALAM, D/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **5. YESODHA, D/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **6. MANIKANTAN, S/O LATE APPUKUTTAN AND THANKA, RESIDING AT THIRUVAZHIYAD DESOM, NEMMARA VILLAGE, CHITTUR TALUK.** **(SUPPLEMENTAL RESPONDENT NO.2 IN THE LOWER APPELLATE COURT, THANKA, DIED ON 23-1-1998 PENDING APPEAL. HER L.RS., THE APPELLANTS HEREIN, ARE ON RECORD)** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN** ## **SA.No. 777 of 2001 ( A ) :2:** ## **RESPONDENT(S):** **--------------** **1. SASEENDRAN, S/O MADHAVAN (DIED), AGRICULTURAL OFFICER, RESIDING AT KOMBANKATTIL, NEMMARA VILLAGE, CHITTUR TALUK.** - **IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4.** - **2. SATHYABHAMA, W/O LATE SASEENDRAN, RESIDING AT BANK ROAD, ALATHUR P.O., PIN – 678 541.** - **3. SUBODH, S/O LATE SASEENDRAN, RESIDING AT BANK ROAD, ALATHUR P.O., PIN – 678 541.** - **4. SAJITHA, D/O LATE SASEENDRAN, RESIDING AT BANK ROAD, ALATHUR P.O., PIN – 678 541.** - **LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 AS PER THE ORDER DATED 25-7- 2012 IN I.A.NO.2990/2011.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SMT.BINDUMOL JOSEPH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** ## **S.A.No.777 OF 2001** **--------------------------------------------------Dated this the 16[th] day of October, 2012.** ## **J U D G M E N T** The legal representatives of the sole defendant in a suit for injunction and damages is the appellant. The plaintiff, who was the respondent, died, while the appeal was pending and his legal representatives are impleaded. Though notice has been served on the legal representatives, there is no appearance. 2. The suit was filed by the plaintiff claiming that the varamba on the western boundary of his paddy field is attempted to be trespassed into by the defendant. The plaintiff's paddy land is bounded on the west by the defendant's garden land. The defendant's property lies at a lower level than the plaintiff's property and is bounded on the west, by a fence, which excludes the varamba. The plaintiff contended that the varamba is on his part of the paddy land and that he had been taking usufructs of the three trees, situated on the varamba. When the trees were plucked, the defendant and his family members forcefully took away the ## **S.A.No.777 OF 2001 2** usufructs. Apprehending the defendant's trespass, the suit was filed for an injunction simplicitor with a claim for damages. The defendant contested the same, claiming that the varamba belongs to his garden land as per Ext.B1. 3. The suit was dismissed by the trial court, on the sole premise that the plaintiff, when he was examined as PW1 deposed that the three trees on the varamba were taken over by the defendant, by erecting a fence enclosing the said trees and since the plaintiff had admitted dispossession, the suit for injunction simplicitor could not be entertained. The court below also noticed that no survey plan was prepared and there was no indication as to, in which survey number, the varamba was situated. In any event there was no declaration sought on title. Though, applications on violation of injunction were filed by both parties, the same were rejected along with the suit. Neither parties have filed any appeal from the rejection of the said I.A's. Against the rejection of the suit, ## **S.A.No.777 OF 2001 3** an appeal was filed. 4. On first appeal, the District Court reversed the findings of the trial court and granted the injunction prayed for, but declined the claim for damages for reason of total lack of evidence. The questions of law raised are the following :- - A) Whether on the facts and in the circumstances of the case, the lower appellate court was correct in law in granting a decree of injunction against the true owner of the property ? - B) Has not the lower appellate court acted illegally in adjudicating the suit without raising an issue on title to the property ? - C) In the light of the admission of the plainiff that his document of title does not take in the varamba and that he has lost possession of the varamba before the filing of the suit has not the lower appellate court acted with manifest irregularity in granting a decree for injunction based on possession ? - D) Is the observation of the lower appellate court that the possession of the defendant is not “settled possession” sustainable in law ? - E) Will not lack of possession on the date of suit disentitle the plaintiff to relief in a suit for injunction based on possession ? - F) Has not the lower appellate court made an ## **S.A.No.777 OF 2001 4** essentially erroneous approach to the whole case ? - G) Whether the judgment and decree of the lower appellate court is sustainable in law ? 5. Since divergent findings have been entered into what is significant in the second appeal is the findings of the first appellate court; whether the same is erroneous and whether the appellate court has erroneously answered or failed to answer any question of law. The thrust of the arguments by the learned counsel for the appellant is that no relief could have been granted without a prayer for repossession as also declaration of title. The first appellate court found that the reasoning of the court below with respect to the dispossession of the plaintiff was not one, which was possible, on taking into consideration the totality of the facts and circumstances. The trial court had placed reliance on the statement made by the plaintiff, in the box, to the effect that three trees standing on the varamba were fenced in to the defendant's ## **S.A.No.777 OF 2001 5** property. The plaint itself was filed apprehending trespass by the defendant. The trial court relied on a solitary statement, in the box, to find that the plaintiff had been dispossessed and hence the prayer for injunction could not be granted without a prayer for recovery of possession. 6. Looking at the evidence, as a whole, it cannot be said that the plaintiff has admitted dispossession. True, there is a solitary statement by the plaintiff that the trees have been taken over by the defendant by erecting a fence around them. However, the defendant in chief examination as DW1, categorically denied any such fence around the trees. The Commission report and the Sketch filed would also show the existence of a fence on the eastern boundary of the defendant's property and the three trees marked as Exts. C1, C2 and C3 are shown outside the fence. The tree marked as Ext.C1 is slightly away from the fence to the east and Exts.C2 and C3 are situated adjacent to the fence; but still ## **S.A.No.777 OF 2001 6** outside. The solitary statement of the plaintiff could not have been relied upon by the trial court so as to find dispossession and reject the prayer for injunction. 7. The first appellate court found that there is no reason why the title should be decided, since the plaintiff only claims for a simple injunction based on his possession. The non framing of an issue, regarding the title, hence was found to be irrelevant. The evidence recorded in the case would also disclose that the plaintiff sets up his title on the plaint schedule property by Ext.A1 and the defendant over the garden land, lying to the west of the plaint schedule property by Ext.B1. Neither Ext.B1 nor Ext.A1 in their schedule shows a varamba. 8. The lie of the properties are discernible from the Commission report. The topography as disclosed in the report, indicate that there is a slope from the east to the west. The garden land of the defendant lying to the west is also admitted to be at a ## **S.A.No.777 OF 2001 7** lower level. The claim of the plaintiff was that the said varamba was a blockade ensuring that water is retained in the paddy field and does not flow out to the west. The Commission report, the lie of the property and the evidence adduced would clearly indicate that the varamba is a part of the paddy filed owned by the plaintiff. As noticed by the first appellate court, the Commissioner specifically speaks about the fence with trees of about 10 to 15 years standing thereon, intermittently on the eastern boundary of the defendant's garden land. This fence excludes the varamba, which lies contiguous with the paddy fields of the plaintiff. The evidence of DW1 would also show that it was his specific case that his property is only up to the fence. It is also noticed by the first appellate court that in cross examination when a specific question was put to the defendant as to who is in possession of the varamba, he answered that the varamba was part of the paddy field. On repeating the question, he resiled and stated that the varamba ## **S.A.No.777 OF 2001 8** belongs to him. But again in the same breadth he stated that whatever property lies outside the fence does not belong to him. The varamba is a part of the paddy field he further repeated. 9. The learned counsel for the appellants, relying on _**Anathula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs. & Ors.**_ (A.I.R 2008 Supreme Court 2033) and _**Paulose v. Thomas**_ (1999 (2) KLT 423), _**Achuthan v. Sumitra & Ors.**_ ( 1987 (1) K.L.T.457 would contend that the judgment of the lower court is to be restored. The plaintiff ought to have claimed for a declaration of title as also prayed for a mandatory injunction rather than a prohibitory one. _**Anathula Sudhakar's**_ case (supra) explains the position with regard to suits were prohibitory injunction relating to immovable property is the subject matter and says so : a) “Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue ## **S.A.No.777 OF 2001 9** for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor”. 10. In my opinion, the present suit is one, in which, there is an apprehension of interference with the plaintiffs lawful possession, coupled with a threat of dispossession, in which case, it was held by the Supreme Court that an injunction simplicitor would lie. The Hon'ble Supreme Court also noticed that ordinarily in a suit for injunction, the issue of title will not arise directly or substantially. The decision to grant or refuse injunction would rest on possession unless; possession has to be established on the basis of title; as in the case of vacant sites. Here the properties which are the subject matter are agricultural lands; one garden land and the other paddy field. The actual user would assume significance. The 'varamba' is in the form of a restrictive water barricade and the user is definitely attached to the field. DW1 concedes so much. ## **S.A.No.777 OF 2001 10** And what is the cloud ? Ext.B1, the title of the deed of DW1 does not confer title on the varamba and DW1's fence excludes the varamba. 11. The findings of the lower court that the survey plan was not made available is fallacious. The mere fact that the varamba would have been in the survey number in which the garden land was situated would not by itself confer title on the defendant. As a legal proposition, it cannot be said that the person possessing land in one survey number cannot be possessing land in an adjacent survey number. The decision in _**Paulose v. Thomas**_ is not relevant, since that is a clear case of dispossession and the plaintiff sought for and was granted recovery of possession. _**Achuthan's case**_ (supra) is a case in which the title over two trees standing on the boundary was in dispute. The court found that the safest method was to follow the simple rule that the tree whose trunk stands protanto on the land of two co-terminous owners ## **S.A.No.777 OF 2001 11** belongs to them in common. Here the dispute is not on the trees, but on the possession of the varamba on which the trees are situated. The trees are not a part of the garden land of DW1 nor are they within or even on the fence. They stand outside the fence erected on DW1's boundary. 12. In the facts and circumstances of the case, it cannot be said that the defendant is the true owner of the varamba. The document produced by the defendant also does not disclose the varamba in the description. The clear statements made by the defendant as DW1 also would indicate that the varamba lies outside the fence and the defendant has no claim over any land lying outside the fence. He categorically accepts that the varamba is a part of the paddy field. The dispossession found by the trial court has been held by the first appellate court to be incorrect on facts. Looking at the evidence as a whole, this Court also finds that there is no dispossession of the plaintiff from the possession of the ## **S.A.No.777 OF 2001 12** varamba and the defendant definitely denied any such possession being taken. The findings of fact entered into by the first appellate court are unassailable. It cannot be said that there is an erroneous appreciation of facts or a mistaken application of law. The jurisdiction conferred under Section 100 of the Code of Civil Procedure as also the fact that the findings of the first appellate court are one possible from the evidence on record, deters this Court, from interfering with the judgment of the first appellate court. The questions raised by the appellants are all on facts. The conclusion of the first appellate court on a re-appreciation of the evidence is definitely the only reasonable conclusion possible from the evidence on record. In the circumstances, the second appeal is rejected with costs throughout. **K.VINOD CHANDRAN,** amk