M.K. Abdul Latheef and others v. K.N.P. Beepathumma and K.N.P. Muhammad Kunhi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936** ## **RSA.No. 412 of 2009 ( )** **-----------------------AS.NO. 16/2006 OF SUB COURT, HOSDRUG ................** ## **OS.NO.266/2000 OF MUNSIFF COURT, HOSDRUG** **----------------** ## **APPELLANT(S)/RESPONDENTS/DEFENDANTS :** **---------------------------------------------------------------------** **1. M.K.ABDUL LATHEEF, S/O.MUHAMMAD MUSALIYAR, AGED 59 YEARS, AGRICULTURIST, RESIDING AT AYITTI IN NORTH TRIKARPUR, VILLAGE AND POST, HOSDRUG TALUK.** - ***2. K.N.P.KUNHIMOIDEENKUTTY,S/O.ABDULLA HAJI, AGED 79 YEARS, AGRICULTURIST, RESIDING AT AYITTI IN NORTH TRIKARPUR, VILLAGE AND POST, HOSDRUG TALUK. (DIED)** ## ***ADDL.A3 TO A13 APPELLANT IMPLEADED** - ***A3: V.P.M.ABDULLA,S/O.LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 56 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TAL, KASARAGOD DISTRICT.** - ***A4: V.P.M.ABDUL RAHMAN, S/O. LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 54 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A5: V.P.M.BEE FATHIMA, D/O. LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 52 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A6: V.P.M.ABDUL KHADER, S/O.LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 50 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A7: V.P.M.ABOOBACKER, S/O.LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 48 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A8: V.P.M.SAINABA, D/O.LATE K.N.P.KUNHIMOIDEENKUTTY,** - **AGED 46 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** **Sts** **2/-** **-2-** **RSA.NO.412/2009** - ***A9: V.P.M.SAFIYA, D/O.LATE K.N.P.KUNHIMOIDEENKUTTY, AGED 44 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A10: V.P.M.AYISHA, D/O.LATE K.N.P.KUNHIMOIDEENKUTTY, AGED 42 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A11: V.P.M.HAFSATH, S/O. LATE K.N.P.KUNHIMOIDEENKUTTY, AGED 40 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TAL, KASARAGOD DISTRICT.** - ***A12: V.P.M.MAIMOOAN, D/O.LATE K.N.P.KUNHIMOIDEENKUTTY, AGED 38 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** - ***A13: V.P.M.AMINA, D/O.LATE K.N.P.KUNHIMOIDEENKUTTY, AGED 36 YEARS, RESIDING AT AYITTI IN NORTH TRIKARPUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT.** ***ADDL.A3 TO A13 IMPLEADED BEING THE LRS OF DECEASED A2 AS PER ORDER DATED 21/6/13 IN IA.NO.1573/2013** **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** **---------------------------------------------------------------** **1. K.N.P.BEEPATHUMMA, D/O.SAFA UMMA, AGED 72 YEARS, AGRICULTURIST, RESIDING AT AYITTI, IN NORTH TRIKARPUR VILLAGE AND POST, HOSDRUG TALUK.** **2. K.N.P.MUHAMMAD KUNHI,S/O.SAFA UMMA, AGRICULTURIST, RESIDING AT AYITTI , AGED 68 YEARS, IN NORTH TRIKARPUR VILLAGE AND POST, HOSDRUG TALUK.** **R1 & R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **RSA.NO.412/2009** ## **APPENDIX** ## **APPELLANT 'S ANNEXURES:** **ANNEX 1 COPY OF THE AFFIDAVIT DATED 16/2/2011 SWORN IN BY THE FIRST APPELLANT ON BEHALF OF ALL THE APPELLANTS AND FILED BEFORE THE TRIAL COURT.** **ANNEX 1(IA.NO.929/2014) COPY OF THE PLAN AND PERMIT BL NO.218/2013-14 ISSUED BY TRIKARIPUR GRAMA PANCHAYAT FOR UNDERTAKING CONSTRUCTION OF A HOUSE.** ## **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 412 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of July, 2014. ## **JUDGMENT** The defendants who suffered a decree at the hands of the lower appellate court are the appellants before this Court. The suit was one for injunction. 2. The plaint schedule property, having an extent of 1 acre comprised in Sy. No.166/1, according to the plaintiffs, was obtained as per Exts. A1, A4 and A5. It lies within well defined boundaries separating it from the surrounding properties. On the allegation that the defendants are trying to trespass into the suit property, the suit was laid. 3. The defendants resisted the suit by pointing out that the plaintiffs is not in possession of the entire property covered by the documents of title. They laid claim to a small portion situated on the southern and eastern side of the suit property and also pointed out that there is level difference RSA.412/2009. 2 and contended that those plots did not belong to the plaintiffs. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A6(a) from the side of the plaintiffs. The defendants examined D.W.1 and had Ext.B1 marked. Exts.C1 to C3 are the commission reports and plans. The trial court, mainly on the basis that the commission report Ext.C3 discloses that the plaintiff had only a lesser extent, dismissed the suit. 4. The aggrieved plaintiffs took up the matter in appeal as A.S.16 of 2006. The appellate court found that the Commissioner's plan Ext.C3 is reliable and the Commissioner had identified the property with reference to the survey plan and documents of title and has also identified the plots claimed by the parties. Finding no reason to reject the commissioner's report and also finding that merely because a lesser extent has been noticed by the Commissioner, that is RSA.412/2009. 3 not a ground to decline relief to the plaintiffs, allowed the appeal. 5. Notice has been issued on the following substantial questions of law: “1) When there is a conflict between the boundaries and extent stated in a document, is not the boundaries which are more specific, that would prevail over the extent? 2) When the title deeds pertaining to the plaint schedule property relied upon by the plaintiffs could take in only a portion of the plaint schedule property, can the court grant injunction in favour of the plaintiffs in respect of the entire plaint schedule property including that extent on which the plaintiffs do not have title or possession, in the absence of any other evidence to prove their possession over the same?” 6. The learned counsel appearing for the appellants pointed out that the lower appellate court has misdirected itself both on facts and in law. It was pointed out that the property has not been properly identified and the plaintiffs have not been successful in proving that they are in RSA.412/2009. 4 possession of the property as claimed by them. It is also pointed out by the learned counsel that the eastern boundary of the property claimed by the plaintiffs is the property belonging to the second defendant. On going through Ext.C3 report, it can be seen that no such property is located and that would belie the identification made by the Commissioner. It is also pointed out by the learned counsel that these aspects have not been adverted to by the lower appellate court. Further, it is pointed out that the defendants are in possession of those properties and the plaintiffs without seeking recovery of possession of the same, cannot succeed in the suit. For the above proposition learned counsel relied on the decisions reported in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (AIR 2012 SC 1727) and Anathula Sudhakar v. P. Buchi Reddy (2008(3) K.L.T. SN 30). 7. Per contra, learned counsel appearing for the respondents pointed out that the defendants did not have a RSA.412/2009. 5 consistent case at all. At one point of time they would say that the small plot on the southern side was in the possession of the first defendant. But at the time of evidence D.W.1 would say that it was the second defendant who is in possession of the property. He would also say that it was he who had assigned the southern portion to the first defendant and he has got documents to prove the same. According to him, he had got tax receipts to prove that he had paid tax and there is no reason as to why the said receipts were not produced. According to the learned counsel, no serious objection was taken to the Commissioner's report and it is significant to notice that the defendants did not produce title deeds or any other document for identification of their plots by the Commissioner. Referring to the evidence of D.W.1, it was pointed out that even as admitted by the defendants that the portions of the property on the southern and eastern sides of the plaint schedule property are owned by the defendants. RSA.412/2009. 6 These aspects were noticed by the court below and the lower appellate court was perfectly justified in granting a decree. Learned counsel went on to point out that the lower appellate court has proceeded on the basis of the evidence and has found that the plaintiffs are entitled to relief. Being an essential question of fact and as no substantial question of law arises for consideration in this appeal, the appeal is without merits. 8. After having heard learned counsel for the appellants and the respondents, there seems to be considerable force in the contentions raised by the respondents. Ext.C3 is the commission report which has been relied on by the lower appellate court. It is significant to notice that the trial court also did not discard the evidence. But the trial court was of the view that since Ext.C3 showed only a lesser extent, the plaintiffs are not entitled to any relief. That obviously cannot be the law. RSA.412/2009. 7 9. It is true that going by the documents of title, the eastern boundary of the plaint schedule property is the property belonging to the second defendant. It is significant to notice that the total extent of property was 1.45 acres, out of which 1 acre was gifted as per Ext.A1 document. The mere fact that the commissioner has not shown the eastern boundary of the property as belonging to the second defendant, that by itself is not a ground to discard the evidence adduced by the plaintiff. It is significant to notice that there was no attempt from the side of the defendants to have their properties located by producing title deeds. The Commissioner had only the title deed of the plaintiffs to identify the property. 10. Referring to Ext.A1 it is contended that the boundary shown therein did not tally with the boundary shown in the plan and that betrays the claim made by the plaintiffs. It must be noticed that going by the evidence adduced by the RSA.412/2009. 8 plaintiffs, the other boundaries are almost the same. 11. The plaintiffs have produced documents to show the title and also produced documents to show that they have been paying tax in respect of the property. 12. There is nothing to show that the defendants are in possession of any portion of the property in respect of which the suit was laid. Therefore the principle laid down in the decisions relied on by the learned counsel is not of any help to the defendants. 13. It is significant to notice that the plaintiffs had obtained purchase certificate with the defendants on the party array. It is true that the said document shows the extent of the property as 1 acre. 14. Learned counsel for the appellants contended that that could not have been correct in view of Ext.C3 commission report which show a lesser extent. RSA.412/2009. 9 15. It may be that the application for purchase certificate was made on the basis of the documents of title and a portion was taken for road much later. There is a contention by the learned counsel that the northern boundary does not take in the road at all. Even assuming it to be so, that may not by itself help the defendants. As already noticed, the Commissioner in Ext.C3 has clearly mentioned that the property is identifiable with respect to the boundaries and side measurements. 16. Nothing prevented the defendants from having their property also located and show that the plaintiffs did not have possession of the property covered by their document of title. There was no such attempt from the side of the defendants at all. The first defendant even did not mount the box at all. 17. The reluctance on the part of the defendants to produce the documents of title especially the document by RSA.412/2009. 10 which the second defendant transferred the property to the first defendant goes a long way to show that the claim made by the defendants cannot be true. 18. The contention is that in order to have a proper adjudication of the issues involved in the case, it is absolutely necessary that the 1 acre covered by Ext.A1 should have been identified and then the property obtained by the plaintiffs under Exts.A4 and A5 would have been identified. 19. There is no basis for the above contention. It is not in dispute that 1 acre of land which is covered by Ext.A1 is a compact plot and the reduction in extent have been explained also. Of course, there is a slope on the south-eastern boundary shown in the document. That has no consequence as the Commissioner has identified the property with reference to the title deeds. 20. It does not appear that any serious objection was taken to the commission report Ext.C3. The lower RSA.412/2009. 11 appellate court found that there is no reason to discard Ext.C3 and came to the conclusion that the plaintiff has succeeded in establishing their case. Moreover, the court below also made tax receipts produced by the plaintiff. 21. On the materials now available, it could not be said that the lower appellate court has misdirected itself either on facts or in law. It has appreciated the evidence in the proper perspective and at any rate, the view taken by the lower appellate court is a possible view. If that be so, since it is not found that the findings are either perverse or contrary to the evidence on record, interference under Section 100 of C.P.C. is uncalled for. The appeal is without merits and therefore it is dismissed. P. BHAVADASAN, JUDGE sb.