Periyath Veettil Kamalakshi Amma v. Chundayil Sebastian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932** **SA.No. 972 of 1996()** **-----------------------------** **AS.60/1994 of SUB COURT, PAYYANNUR OS.211/1992 of MUNSIFF COURT, PAYYANNUR** **....................** ## **APPELLANT/APPELLANT/DEFENDANT:** **----------------------------------------------------------** **PERIYATH VEETTIL KAMALAKSHI AMMA, D/O.SANKARAN NAIR, AGED 64 YEARS, AGRICULTURIST, PULINGOME AMSOM DESOM, TALIPARAMBA TALUK, KANNUR.** **BY ADV. SRI.K.S.MADHUSOODANAN, SRI.C.P.PEETHAMBARAN.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------------** **CHUNDAYIL SEBASTIAN, S/O.JOSEPH, AGRICULTURIST, PULINGOME AMSOM DESOM, TALIPARAMBA TALUK.** **BY ADV. SRI.R.SHANKAR.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON 28/05/2010 DELIVERED THE FOLLOWING:** ## **SA.No. 972 of 1996** **ORDER ON C.M.P. NO.2159/1996 IN S.A. NO.972/1996** ## **DISMISSED** **28/05/2010.** **SD/- P.BHAVADASAN, JUDGE** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 972 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010. ## **JUDGMENT** The defendant in O.S. 211 of 1992 before the Munsiff's Court, Payyannur is the appellant. He suffered a decree at the hands of the courts below. The facts and parties are hereinafter referred to as they are available before the trial court. 2. The suit was one for injunction. According to the plaintiff, he obtained the suit property as per Ext.A8 dated 3.2.1965. Ever since then he is in possession of the property and has effected improvements. In O.A. 30 of 1968 his right was declared. As per Ext.A8 he obtained 10 acres of land. He sold four and a half acres of land and he is now in possession of 5.43 acres, that is shown as the plaint schedule property. He obtained jenm right over the property as per Ext.A2 dated 6.1.1976. On the western side of the plaint S.A. 972/1996. 2 schedule property is the property owned by the defendants. A gully separates the properties. It passes through the plaintiff's property upto where the defendant's property begins and thereafter it lies as a boundary separating the property of the plaintiff and the defendant. Plaint B schedule is a part of plaint A schedule property. The defendant, who has no manner of right over plaint B schedule, tried to trespass into the property and tried to destroy the improvements. Timely resistance made by the plaintiff made the defendant to retreat. Plaintiff apprehends trouble and hence the suit. 3. The defendant resisted the suit. It is pointed out by him that going by the description in the plaint the properties are not identifiable. The defendant obtained three acres of property with boundaries made mention of in the written statement as per Ext. B1 dated 21.4.1969. He obtained purchase certificate as per Ext. B4. Defendants had made improvements in the property and plaint B schedule property is not a part of plaint A schedule property. S.A. 972/1996. 3 The plaintiff has no manner of right over plaint B schedule property and he is not entitled to any relief. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and the documents marked as Exts. A1 to A9. The defendant examined D.W.1 and had Exts.B1 to B7 marked. Exts.C1 and C2 are the Commissioner's plan and report. On a consideration of the materials before it, the trial court came to the conclusion that the plaintiff has established his case and granted a decree as prayed for. The matter was carried in appeal by the defendant. The appellate court concurred with the trial court and dismissed the appeal. The said judgment and decree are assailed in this Second Appeal. 5. In this Second Appeal the following substantial questions of law are seen raised: _“i. In a suit for simple prohibitory injunction if the plaint schedule property cannot be properly identified, can a decree be passed?_ S.A. 972/1996. 4 _ii. Is it legally tenable to pass a decree and judgment in a prohibitory injunction suit without establishing the actual physical possession?_ _iii. Since adverse possession is advanced by the defendant, can it be simply brushed aside by Trial Court on the assumption that the possession is with the plaintiff and the Appellate court totally ignoring the plea taken in the appeal?_ _iv. Can a photostat copy of plan be admissible in evidence under Section 65(a) of the Evidence Act in the absence of original with the opposite side?”_ 6. The short case put forward by the plaintiff is that plaint B schedule property is a part of plaint A schedule and the defendant had no manner of right over the same. According to him, the defendant is trying to trespass into the property and destroy the improvements. It is his case that the property of the defendant, which is situate on the western side is separated from his property by a gully. That flows from north to south. On the other hand the defendant resisted the suit claiming that the claim of the plaintiff is not S.A. 972/1996. 5 true and plaint B schedule property does not belong to the plaintiff. According to her, the improvements in plaint B schedule property, which is shown as A1 in Ext.C1 commission plan, has been effected by him. 7. The plaintiff's evidence shows that he obtained 10 acres of land as per Ext.A8. Initially in the plaint he claims right over 4 acres of land and then claims right over 6 acres of land. Later after the commission report was filed plaint was amended reducing the extent to 5.43 acres and incorporating B schedule. 8. Learned counsel appearing for the appellant strenuously contended that the courts below were primarily guided by Ext.A9 document, which should not have been accepted in evidence. That is the photostat copy of a plan produced by P.W.2 and that could not have been received in evidence. According to P.W.2 he had given original of Ext.A9 plan to the Commissioner and the Commissioner had not produced the same. According to learned counsel, the courts below have gone by the description of boundary in S.A. 972/1996. 6 the document of title of the defendant for entering a finding in favour of the plaintiff. That could not have been done. It was a suit of the plaintiff and it is he who had to prove his title and possession. 9. Learned counsel also drew the attention of this court to the fact that there is absolutely no finding by the court below that the improvements noticed by the Commissioner in A1 plot is the same as the one in A2 plot not as in A plot, which is admittedly owned by the plaintiff. On the other hand, according to learned counsel, the evidence would show that the improvements in A1 plot is similar to the improvements in the defendant's property. It was brought to the notice of this court that when the commissioner visited the property, the defendant had informed the Commissioner that the banana plantation in A1 property was effected by him and that was in the presence of the plaintiff. These aspects have not been considered by the courts below in the right perspective and that has resulted in failure of justice. In support of his S.A. 972/1996. 7 contention, learned counsel relied on the decision reported in **Beepathumma v. State of Kerala** (1990(1) KLT SN 44). 10. It is seen that initially the suit was laid in respect of 6 acres of property. It was later the plaint was amended incorporating plaint B schedule taking in plot A1 shown by the Commissioner. 11. It will be useful to refer to the Commissioner's report at this point. The Commissioner says that as per the orders of the court he was directed to identify the property on the basis of plaint descriptions and with reference to the documents produced by the parties. He was also directed to measure the property. The Commissioner says that he had verified the documents and measured the property. It is seen from the Commissioner's report that the first document produced is an unregistered sale deed and the property was seen to be in re-survey No.127/1 in Pulingome amsom. The Commissioner has pointed out that no other details are available from the said document in order to identify the property. Another document produced before him did not S.A. 972/1996. 8 help him to identify the property. However, on verification of document Nos. 3 and 4 by him, he says that he came to now that the extent of property owned by the plaintiff in R.S. No.127/1 in Pulingome amsom is 10 acres. The Commissioner has noticed that the boundaries are shown as “Parambukal” (garden lands) on all four sides. He specifically says that even though five documents were perused, he could not identify the 10 acres of property said to have been owned by the plaintiff. He also says that he could not fix the survey line in R.S. No.127/1 because that survey number contains a large extent of land. 12. Plaint schedule property was identified and the Commissioner says that he has produced a plan. He has pointed out that plots A and A1 shown as ABCDEFGH is the plaint schedule property. Plots A1 and A2, according to the Commissioner, are claimed to have been owned by the defendant. According to the Commissioner, the plaintiff's property is well demarcated from the property of Ramakrishnan Nair on the western side by way of a well 9 S.A. 972/1996. pronounced boundary. He shows the boundary as A-B line. However, he could not locate the boundary of plaint schedule property on its southern side except heaps of granite stones. It is also pointed out by the Commissioner that the plaint schedule property has a well demarcated boundary on its eastern and northern sides. The Commissioner says that he could not see any water channel on either side of A-B line. He also makes mention of a pit on A-I line. From point A to Y shown in Ext.C1 plan, he says that he could not find any water channel. He also makes mention of 10 banana plants in the disputed portion, which according to him are aged two weeks. The Commissioner says that there is a boundary mark along AJKLM plot. According to the Commissioner, that is the boundary line of the property owned by the defendant. Property has an extent of 3 acres. On measurement including A1 and A2 plots, Commissioner located the extent as 3.68 acres. He has also made mention of the improvements in the property. S.A. 972/1996. 10 13. The main argument is that the courts below were not justified in relying on Ext.A9, which is the photostat copy of a plan said to have been prepared by P.W.2. P.W.1 is the plaintiff. His definite stand is that his property and the property owned by the defendant on the western side is separated by a well laid gully. He speaks about the improvements made in the property. In cross examination he says that he has not produced any document to show that his western boundary is shown as gully. In fact his document of title only shows that all four sides of that property there are parambas. Even though he had initially maintained that he had assigned four acres, later it was stated that he had assigned four and a half acres. He says that he obtained copy of the plan, ie., Ext.A9 from the Village Office. 14. P.W.2 is the Village Assistant of Pulingome Village. He says that as per the orders of court he had gone to assist the Commissioner. He has produced the plan which S.A. 972/1996. 11 is stated to have been marked as Ext.A9. He asserts that he had given the original of the same to the Commissioner. He also says that the Village Officer had come to the place. P.W.3 is the Commissioner in the case. He says about the facts noticed by him and he denies that the original of Ext.A9 was given to him. He speaks about the various details contained in Ext.C1 plan. In chief examination he says that he could not find a gully or its remnants as claimed by the plaintiff. He also says that A-H line shown in Ext.C1 plan is as shown by the plaintiff. It is admitted by him that the defendant had insisted that the property of Rosamma, who bought the property from the plaintiff, should also be measured. He also concedes that the defendant had demanded that first of all the 10 acres claimed by the plaintiff should be identified. He says that even though he tried to do so, he was not successful, because a portion of it was in the possession of strangers. He also concedes that he had mentioned the property on the southern side as shown by the plaintiff. 12 S.A. 972/1996. 15. P.W.4 is the Village Assistant, who had gone to the place along with the Village Officer. He says that he had prepared Ext.A9 plan and entrusted it to the Village Assistant to hand it over to the Commissioner. A reading of his evidence shows that the claim made by him is extremely doubtful. 16. As rightly pointed out by the learned counsel for the appellant, the courts below have placed considerable reliance on Ext.A9 document, which is said to be a plan prepared by P.W.4 and hand it over to the Commissioner. The Commissioner had denied having received the same. It is also to be noticed that the Commissioner had produced Ext.C1 plan, which is in considerable variance with Ext.A9 plan said to have been prepared by P.W.4. In the appendix to the trial court judgment Ext.A9 is shown as registered copy of jenm deed. That document is seen marked as Ext.A9 among the records. 17. It is interesting to note that the plaintiff had filed detailed objection to the Commission report and S.A. 972/1996. 13 wanted the court to accept Ext.A9. The courts below have not found that Ext.C1 plan is wrong or that the Commissioner has suppressed Ext.A9. One fails to understand how the courts below could have accepted Ext.A9 without finding out that Ext.C1 is acceptable or not. 18. Going by the Commissioner's report he was unable to identify the plaintiff's property. Without establishing that the original of the so called Ext.A9 had been handed over to the Commissioner, one fails to understand how a photostat copy could have been marked. It must also be noticed that the plaintiff claims only 10 acres. He concedes that he had sold 4.50 acres. Balance could have been five and odd acres. Going by the Commission report, plots A1 and A2 comes to 3.68 acres. What is surprising is that there was no attempt on the side of the Commissioner to identify the 10 acres said to have been obtained by the plaintiff. It is true that the Commissioner has mentioned that the property owned by the defendant is shown as AJKLM. However, it must be S.A. 972/1996. 14 noticed that the Commissioner had observed that there is no gully as claimed by the plaintiff. However, Ext.A9 shows the presence of a gully. The courts below could not have ignored this material contradiction. It is not possible to understand how the courts below accepted Ext.A9. As already noticed, the courts below have gone more by the description of the boundaries in the document of the defendant rather than ascertaining the boundaries with reference to the plaintiff's document. 19. It is also significant to note that there is no averment in the plaint as to the nature of improvements said to have been made by the plaintiff in the so called A1 plot shown in Ext.C1 plan. A photostat copy of the so called document said to have been prepared by P.W.4 shows considerable difference from the report filed by the Commissioner. As already noticed, the courts below have simply accepted Ext.A9 to come to the conclusion that the claim made by the plaintiff is correct. S.A. 972/1996. 15 ## 20. In the decision reported in **Beepathumma's** ## **case** , it was held as follows: _“In a suit for injunction, the burden of proving not only possession as on the date of suit, but also cause of action for injunction is on the plaintiffs. Burden of the plaintiffs is greater when they are admittedly having no title and they are claiming possession of some property belonging to another and lying outside their enclosures. The burden becomes still greater when the land is lying outside and is cultivated and maintained in a manner different from the property admittedly in their possession. Even when possession is proved, the relief of injunction, which is a discretionary and extra ordinary relief, cannot automatically follow. Not only that the claimant has to establish that he has approached the court with clean hands, but he must also convince the court that his rights are infringed or attempted to be infringed in such a way that he cannot enjoy that right without the aid of court by getting such a relief.”_ 21. It also needs to be noticed that it was in the presence of the plaintiff that the defendant had told the S.A. 972/1996. 16 Commissioner that it was he who had planted the banana plants seen in A1 plot shown in Ext.C1. AXYZH line which comes on the western side of the plaintiff's property is not a straight line, it is in a zig zag manner. It is difficult to accept that a plot would run so. 22. It is not possible to accept the finding of the courts below that the plaintiff has proved his title to the property. It is not possible to accept the act of the courts below in accepting the so called Ext.A9 plan said to have been prepared by P.W.4 and given to the Commissioner and it was specifically disputed by the Commissioner. As already noticed, Ext.C1 report filed by the Commissioner varies considerably from the plan said to have been prepared by P.W.4. In such circumstances, unless it was found that Ext.C1 plan is wrong, the other plan could not have been accepted. 23. The plaintiff has miserably failed to prove his possession over the plaint schedule property and the S.A. 972/1996. 17 judgment and decree of the courts below could not be sustained. In the result, this appeal is allowed and the judgments and decrees of the courts below are set aside and the suit stands decreed. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb. ## Corrigendum It is brought to my notice that an error has crept in in the last portion of the judgment, wherein it was stated as 'the suit stands decreed'. The said portion shall be corrected to read as 'the suit stands dismissed'. ## **27.09.2010.** **P. BHAVADASAN, JUDGE** S.A. 972/1996. 18 ## **BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 972 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - **JUDGMENT** **28.05.2010** S.A. 972/1996. 19