# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943**
**RSA NO. 450 OF 2021**
**[Against the judgment and decree dated 07.01.2021 in A.S.No.56 of 2015 of the Subordinate Judge's Court,Ottappalam arising from the judgment and decree dated 29.05.2015 in O.S.No.20/2013 of the Munsiff-Magistrate's Court, Pattambi]**
## **APPELLANT/APPELLANT/PLAINTIFF:**
KRISHNANKUTTY, AGED 73 YEARS, S/O.KOOTTAPULAKKAL KRISHNAN, KOOTTAPULAKKAL HOUSE, KALLADIPATTA AMSOM, ANDALADI DESOM, KALLADIPATTA POST, OTTAPALAM TALUK, PIN-679 313.
BY ADV R.SREEHARI
## **RESPONDENT/RESPONDENT/DEFENDANT:**
MOIDEENKUTTY, AGED 72 YEARS, S/O.POOVATHINGAL ABDULLA, POOVATHINGAL HOUSE, KALLADIPATTA AMSOM AND POST, PEROKKARA DESOM,
OTTAPALAM TALUK, PIN-679 313.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON 03.08.2021 DELIVERED THE FOLLOWING:
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## **J U D G M E N T**
This appeal is directed against the judgment and decree dated 07.01.2021 in A.S.No.56 of 2015 of the Subordinate Judge's Court,Ottappalam (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 29.05.2015 in O.S.No.20/2013 of the Munsiff-Magistrate's Court, Pattambi (hereinafter referred to as 'the trial court'). The appellant was the plaintiff in O.S.No.20/2013 and the respondent was the defendant therein. The trial court dismissed the suit by judgment dated 29.5.2015. The matter was carried in appeal before the first appellate court in A.S.No.56/2015. The first appellate court dismissed the appeal by judgment dated 7.1.2021. The suit was both for mandatory and prohibitory injunctions.
2. The plaint averments in brief are herein
below:-
The plaint schedule property originally
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belonged to the mother of the plaintiff. She had executed settlement deed No.2481/2003 of Sub Registrar's Office, Pattambi whereby the property was settled to the plaintiff and his brother Kumaran. Kumaran later released his right in favour of the plaintiff as per release deed No.1679/2004. The plaintiff is the owner in possession of the plaint schedule property. The north of the plaint 'A' schedule property was a 'palliyal'. At present, the property is a garden land. On the immediate north of the plaint 'A' schedule property, there is a public water channel. The properties are slopping towards east. It is alleged that the water from the west goes through the channel towards east. According to the plaintiff, this channel is necessary for draining out the water to the paddy field and in case the channel is obstructed, the water would be flowed directly to the plaint 'A' schedule property. Resultantly, the drinking water will be contaminated. The plaintiff claims that the
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wall on the north of plaint 'A' schedule property belongs to him. The water channel is on the northern side of the wall. According to the plaintiff, the defendant's property is situated on the north of the water channel. The water channel is scheduled as plaint 'B' schedule property. Alleging that the defendant is trying to level the water channel and annex to his property, the plaintiff filed the suit.
3. In the written statement, the defendant contended that the plaint 'A' schedule description is incorrect and the plaint 'B' schedule property is not in existence. The defendant alleged that the attempt of the plaintiff is to take possession of the defendant's southern wall. He denied the existence of old water channel as alleged by the plaintiff and the plaintiff is not having northern boundary wall as alleged by him.
4. After framing appropriate issues, during trial,
PWs. 1 and 2 were examined and marked Exts.A1, A2, C1
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and C1(a) on the side of the plaintiff. No oral evidence was adduced by the defendant. Exts.B1 and B2 were marked.
5. Both the trial court and the appellate court disallowed the claim of the plaintiff holding that the plaint 'A' and 'B' schedule properties were not identified by the Commissioner appointed in this case and the suit was filed by the plaintiff without any cause of action.
6. Assailing the concurrent findings of the trial court and the first appellate court, the learned counsel for the appellant contended that the two courts below were not justified in decreeing the suit ignoring the evidence available on record for the reason that Exts.C1 and C1(a) proved through PW2, would clearly prove the existence of plaint 'B' schedule water channel with definite boundaries. It was further submitted that the two courts below were not justified in drawing adverse inferences against the defendant as he failed to rebut his own
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admissions made and the assurance given to the Advocate Commissioner regarding the existence of plaint 'B' schedule water channel and the dumping of soil therein by him as contemplated under Section 114 of the Evidence Act.
7. An Advocate Commissioner deputed from the court was examined as PW2 and marked Exts.C1 and C1(a). The Commissioner has reported that there is a granite wall of ½ feet height on the north of plaint 'A' schedule property. The plaint 'B' schedule water channel is on the north of this wall. There is also a brick wall of one feet height on the north of its water channel. On further north is the property of the defendant and one Subaida. The defendant contended that the northern wall belongs to him. He claimed exclusive right on the northern wall. According to him, a portion of the plaint 'B' schedule is also part of his property and he has maintained it for draining out water. The plaint 'B'
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schedule water channel ends on the eastern boundary of the defendant's property. The plaint 'B' schedule noted by the Commissioner is having a length of 83 feet and width of 2 feet.
8. The plaintiff raised a contention that the plaint 'A' schedule property, having an extent of 9¼ cents comprised in Sy.No.20/10A in Ottappalam Taluk is owned and possessed by him on the strength of Ext.A1 settlement deed. In Ext.A1 settlement deed, the northern boundary of plaint 'A' schedule property is stated as the property earmarked for the pathway. In Ext.A2 release deed also, the very same description is stated. The case of the plaintiff is that plaint 'B' schedule property is a public water channel available on the north of the 'A' schedule property. As per Exts.A1 and A2, it is clear that northern boundary of plaint 'A' schedule is different from the northern boundary as contained in Exts.A1 and A2. However, in the plaint, the plaintiff
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alleged that the northern boundary of plaint 'A' schedule property is mentioned in Exts.A1 and A2 by mistake. The plaint 'B' schedule property is a portion of the public water channel on the north of the plaintiff's property and south of the defendant's property having a length of 90 feet and width of 2 feet.
9. When there is a contention that the northern wall belonging to the plaintiff as stated in the plaint, the burden is on the part of the plaintiff to prove his title over the plaint 'A' schedule property in accordance with the description contained in the plaint. Going by the commission report, the plaint 'B' schedule description is also incorrect. The plaint 'B' schedule differs in its length.
10. The learned counsel for the appellant contended that the defendant failed to appear before the court and adduce evidence to support his plea. According to the learned counsel for the appellant, the trial court is entitled to draw an adverse inference against him as per
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Section 114 of the Evidence Act. In a suit claiming both permanent and mandatory injunctions, it is the duty of the plaintiff to prove his claim and weakness, if any, of the defendant is not a ground to get a decree in his favour. Exts.B1 and B2 documents would show that the properties of the plaintiff and defendant are situated in different survey numbers. Ext.B2 document was executed for clarification, in which it is stated that Survey Numbers 20/11 and 20/6 are stated in Ext.B1 by mistake. Accordingly, the survey number is corrected as 20/5. However, the plaint 'A' schedule property is comprised in Sy.No.20/10A. The plaintiff has not established his possession over plaint 'A' and 'B' schedule properties. He has also not established that he has a right over plaint 'B' schedule property. No evidence was adduced to prove that plaint 'B' schedule property was used as a public water channel on the date of suit and the plaintiff had any right to flow water through the
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same. The Commissioner has not noted the existence of a water channel on the date of suit. No document was produced to show that plaint 'B' schedule property is a public water channel. Unless the right is established, no decree for permanent prohibitory injunction and mandatory injunction can be granted. The reliefs sought for are discretionary in nature.
11. Both the trial court and the appellate court meticulously analysed the entire evidence in detail and held that the plaintiff is not entitled to get both decree for mandatory and prohibitory injunctions. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is proved. In the case on hand, the plaintiff failed to identify the plaint 'A' and 'B' schedule properties over which the plaintiff has claimed right. In this case, the defendant disputed the identity of the property and the claim of the wall and water channel made by the
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defendant in the plaint.
12. A second appeal is not a matter of right. The right of appeal is conferred under Section 100 of the Civil Procedure Code. A second appeal only lies on a substantial question of law. Section 100 of the C.P.C. confers a limited right of appeal. Hence, this court cannot expand the scope of appeal on the strength of decisions of the Apex Court reported in **Hero Vinoth (Minor)** v. **Seshammal** [2006 KHC 831] and **Sebastiao** v. **Luis Fernandes (Dead) Through Lrs. And others K.V.P.Shastri (Dead) Through Lrs. And Others** [2013 KHC 4953] and a Single Bench decision of this Court reported in **Retnamma and Others** v **Mehaboob and others** [2013(2) KHC 670]. It is not open to this Court to re-agitate facts or re-appreciate evidence in a second appeal. A finding of fact is not open to challenge in second appeal even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as
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held in the decision reported in **R. Ramachandran Ayyar v. Ramalingam Chettiar** [AIR 1963 SC 302]. The trial court and the first appellate court examined the evidence on record at length and arrived at a logical conclusion declining the injunctions sought for. This finding is based on cogent and binding documents of title, commission report and the evidence let in by PWs.1 and
2. No substantial questions of law are involved in this appeal.
Resultantly, this R.S.A. is dismissed. There will be no orders as to costs. The pending applications, if any, stand closed.
Sd/-
( **N.ANIL KUMAR** ) JUDGE
MBS/
