P.P. RAVEENDRAN v. PEEDIKAYULLAPARAMBATH CHANDRAMATHI AND OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 20[TH] DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945 ``` ``` RSA NO. 508 OF 2021 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 10.06.2019 IN OS 243/2014 OF MUNSIFF COURT, NADAPURAM ``` ``` AGAINST JUDGMENT AND DECREE DATED 27.02.2021 IN AS 17/2019 OF SUB ``` ## **`COURT, VADAKARA`** ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1PEEDIKAYULLAPARAMBATH CHANDRAMATHI AGED 65 YEARS, D/O KUNHIKANARAN, SWASTHAM, VALAYAMAMSOM, DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` 2PEEDIKAYULLAPARAMBATH HARIDASAN, S/O KUNHIKANARAN,AGED 61 YEARS, FARMER, VALAYAMAMSOM, DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` 3PEEDIKAYULLAPARAMBATH SULOCHANA, D/O KUNHIKANARAN, AGED 59 YEARS, SWASTHAM, VALAYAMAMSOM, DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` 4PEEDIKAYULLAPARAMBATH ARAVINDAKSHAN, S/O KUNHIKANARAN, AGED 57 YEARS, FARMER, VALAYAMAMSOM, DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` 5PEEDIKAYULLAPARAMBATH PRAKASAN, S/O KUNHIKANARAN ,AGED 55 YEARS, FARMER, VALAYAMAMSOM, DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN R.CHETHAN KRISHNA ``` ``` RSA NO. 508 OF 2021 ``` ``` 2 ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF`** ``` P.P.RAVEENDRAN S/O KUNHIKANARAN, AGED 63 YEARS, ROOPIKA HOUSE, NIRMALAGIRI P.O.RAMAPURAM ROAD, KANDAMKUNNUAMSOM, KAITHERIDESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN-670 701. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 508 OF 2021 ``` ``` 3 ``` ``` “C.R” ``` ## **`JUDGMENT`** Dated this the 20[th] day of September, 2023 This appeal is at the instance of the defendants in OS No. 243/2014 on the files of the Munsiff Court, Nadapuram, where the defendants suffered decree and judgment dated 10.06.2019 at the hands of the respondent herein, who is the plaintiff in the suit. Though, the appellants herein challenged the verdict of the Munsiff Court granting decree of prohibitory injunction acting on Ext.C4 plan, the learned Sub Judge, Vadakara, also dismissed the appeal as per judgment dated 27.02.2021 in AS No.17/2019. 2. Heard the learned counsel for the appellants as well as the learned counsel for the respondent. 3. This appeal was admitted by my predecessor on raising the following questions of law. (1) Whether the two courts below wrongly decreed a suit for permanent prohibitory injunction in respect of an area of 7 acres and 39 cents, when the claim of the plaintiff was only as regards 5 acres and 14 ``` RSA NO. 508 OF 2021 ``` ``` 4 ``` cents by way of an amendment subsequent to the commission report filed in this case? (2) Whether the two court below ascertained the factum of possession on the date of suit without examining the Advocate Commissioner and Surveyor? (3) Whether the two courts below granted a decree for permanent prohibitory injunction in respect of an area of 5 acres and 14 cents, particularly, when the plaint schedule description and the plan has not become part of the decree? 4. I shall refer the parties as ‘plaintiff’ and ‘defendants’ for convenience. 5. The facts of the case: The suit is one filed for permanent prohibitory injunction, restraining the defendants from trespassing upon the plaint schedule property, where the plaintiff asserted title and possession on the strength of a gift deed No.18/1970. Subsequently the plaint was amended, limiting the extent of land to 5.14 acres in tune with second commission report and plan. According to the plaintiff, the plaint schedule property having an extent of 7 acre 42 cents originally belonged to the father of the plaintiff and the defendants, Kunhikanaran. While Kunhikanaran was in possession and enjoyment of the same, Kunhikanaran ``` RSA NO. 508 OF 2021 ``` ``` 5 ``` executed a gift deed in favour of the plaintiff. The plaintiff accepted the gift deed and took delivery of the same. Thereafter, he made improvements in the property. Out of the plaint schedule property he had exchanged 2 Acre 4 ½ cents to one Nanu and sold an extent of 8.892 Ares to one Pradeepan. Thus the remaining extent of 5 Acre 14 Cents absolutely belonged to him and he had been in possession and enjoyment of the same. The defendants have no right over the plaint schedule property and there exists proper demarcating boundaries in between the plaint schedule properties and other properties. At the time of execution of the gift deed in favour of the plaintiff, his father had title over property on the eastern and northern sides of the plaint schedule property. Accordingly, father executed a registered Will No.15/1979 dated 07.03.1979 regarding those properties. Thereby property having an extent of 8 Acres was bequeathed to the defendants. Thereafter the defendants partitioned the said property among themselves as per partition Karar No.2149/1991 of SRO, Nadapuram. When the plaintiff, who ``` RSA NO. 508 OF 2021 ``` ``` 6 ``` permanently settled in Koothuparamba about 25 KM away from the plaint schedule property, reached the plaint schedule property on 03.12.2014, defendants 1, 4 and 5 raised dispute and claimed right over certain portions of the plaint schedule property and objected the plaintiff from taking the usufructs. It was at this juncture, this Suit was filed. 6. The defendants resisted the suit and contended that in the year 1954, Kunhikanaran obtained title to properties including the plaint schedule property. But the legality of the gift deed relied on by the plaintiff was seriously disputed. Even though the defendants admitted that the plaint schedule property originally belonged to their father and he was in possession and enjoyment of the same, it was contended that in 1954, their father Kunhikanaran orally leased out an extent of 1 Acre 36 cents to Kanaran and Kannan. Therefore after 1954, Kunhikanaran had ownership and possession only over the remaining property excluding that 1 Acre 36 cents which were orally leased out to the tenants. So plaintiff has got possession and ownership over the property ``` RSA NO. 508 OF 2021 ``` ``` 7 ``` excluding the orally leased 1 Acre 36 cents. But it was omitted to mention the said oral lease in the gift deed executed in favour of the plaintiff. Moreover, the boundaries shown in the gift deed are not correct. The plaintiff had exchanged 2 acres 4 ½ cents as per exchange deed No.666/1993 of SRO Nadapuram and sold 2 acres 24 cents by sale deed No.1496/2014 to 3[rd] parties. So the plaintiff has got ownership and possession only for the remaining portion as above. The plaintiff had never got possession over the plaint C plot. The said C plot had demarcating boundaries on all sides. Since the plaintiff was never in possession of C plot, he could not succeed in getting injunction in relation to C plot. Although the property covered by gift deed in favour of the plaintiff includes F, G and H plots also, the plaintiff raised unnecessary claim on C plot which was in the exclusive possession and enjoyment of the ``` RSA NO. 508 OF 2021 ``` ``` 8 ``` defendants. Accordingly, grant of permanent prohibitory injunction was opposed. 7. The court below raised necessary issues and recorded evidence. PW1 was examined and Exts.A1 to A6 were marked on the side of the plaintiff. Even though, Exts.B1 to B12 were marked on the side of the defendants, no oral evidence was let in by the defendants. Exts.C1 to C4 also were marked. 8. The trial court, on evaluation of evidence, after appraising the contentions raised by both sides, decreed the suit as under:- _“The defendants and their men are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or from committing any waste therein or from interfering with the peaceful enjoyment of the plaint schedule property by the plaintiffs.”_ 9. Though the appellants herein challenged the decree and judgment of the trial court before the appellate court, as per decree and judgment in AS No.17/2019 dated 27.02.2021, the learned Sub Judge concurred the finding entered by the trial court and dismissed the appeal. ``` RSA NO. 508 OF 2021 ``` ``` 9 ``` 10. While impeaching the veracity of the concurrent verdicts entered into by the trial court and confirmed by the appellate court, the learned counsel for the defendants pointed out anomaly in the description of the plaint schedule items in the plaint and in the decree. It is brought to the notice of this Court that initially the plaint schedule property was described as property having an extent of 7 Acres and 42 cents. Later, the schedule was amended as property having 5.14 Acres and confining the same to plot Nos. A, B, C and E in Ext.C4. According to the learned counsel for the defendants, if the properties shown as A, B, C and E in Ext.C4 as such, are taken together, the same would come to an extent of 7 Acres 42 cents and, in fact, E plot is a property sold by the plaintiff as per Exts.A3 & A4 sale deeds and as such, the decree granted by the trial court in respect of the entire property is erroneous. 11. The learned counsel appearing for the plaintiff/respondent submitted that, initially, property was obtained by one Pokkini, who obtained release of the lease ``` RSA NO. 508 OF 2021 ``` ``` 10 ``` hold right from Chathan. Later Pokkini executed Will deed in favour of Sri.Kunhikanaran, his sole son and accordingly, the entire extent of property covered by the Will deed inclusive of 7.42 cents were transferred in the name of Kunhikanaran. Later Kunhikanaran gifted 7.14 acres of property in favour of the plaintiff as per Ext.A1 and thereby the plaintiff got title and possession over 7.14 acres of property. While so, the plaintiff executed Exts.A3 & A4 and thereby, the property shown as plot E in Ext.C4 plan is at the hands of the purchasers of Exts.A3 & A4 and the plaintiff did not want any relief in respect of E schedule item and that this Court may clarify this aspect confirming the decree of injunction in respect of A to C plots in Ext.C4 plan. 12. On a perusal of the schedule description of the property in the plaint and also schedule shown in the decree, it appears that though as per amendment brought into as per order No.902/2017 dated 22.11.2017, the extent of the plaint schedule property was reduced to 5.14 Acres, while describing the extent of land covered by the plots specifically ``` RSA NO. 508 OF 2021 ``` ``` 11 ``` shown in Ext.C4 plan, E plot was also included as part of the plaint schedule property. The learned counsel for the plaintiff submitted that noting this anomaly, a second amendment application was filed as IA No.345/2018 on 02.04.2018 and the said amendment also was allowed on 05.06.2018. On perusal of IA No.345/2018, the submission appears to be correct. But, it is discernible that the amendment proposed to confine the plaint schedule property as A,B & C plots in Ext.C4 plan to an extent of 5.14 Acres not carried out and trial was proceeded without incorporating the said amendment. 13. Thus, the materials available in this case would go to show that the plaintiff bonafidely confined the relief of injunction in respect of 5.14 Acres of property, identified as plots A to C in Ext.C4 plan. However, E plot in Ext.C4 also was mistakenly incorporated in the schedule as per the first amendment made. Anyhow, E plot is not the property of the plaintiff or the defendants. No doubt, the contention raised by the learned counsel for the defendants regarding anomaly in the description of plaint schedule items is having force and ``` RSA NO. 508 OF 2021 ``` ``` 12 ``` the same is the reason for raising substantial question No.1 while admitting this appeal. Answering question Nos.1 & 3, it has to be held that when the plaintiff bonafidely confined the relief in respect of 5.14 Acres and failed to incorporate the amendment proposed as per order in IA No.345/2018 and the plaintiff confines the relief to 5.14 Acres, ie, plot A to C, the decree and judgment of the trial court, confirmed by the appellate court, required to be modified, excluding `E’ plot in Ext.C4. 14. The learned counsel for the defendants submitted that Ext.C4 plan relied on by the trial Court to grand decree of permanent prohibitory injunction is not a plan to be accepted in evidence as held by this Court in the decision reported in **[(2022) 2 KHC 435], Sabu Vs. Sasi].** It is also pointed out that subsequently, **Sabu’s** decision ( _supra_ ) has been followed by this Court in the decision in RSA No.587/2003 dated 07.10.2021. On perusal of the decisions, it could be noticed that this Court had set out the essentials to be recorded in a survey plan, in consideration of the objection raised by the ``` RSA NO. 508 OF 2021 ``` ``` 13 ``` other side in the respective cases, dealt in the said decisions. 15. On perusal of the plan, Ext.C4 plan herein, it has to be observed that initially, for the purpose of identifying the plaint schedule property for the grant of permanent prohibitory injunction, C1 & C2 report and plan were obtained. But the same were strongly opposed by the defendants and sought to set aside the same. The trial court, after examining the commissioner and surveyor, remitted back, C1 & C2 to the commissioner for getting a corrected plan. Accordingly, Ext.C3 report and C4 plan were filed on 25.07.2017. It is interesting to note that after filing Exts.C3 & C4, the defendants did not raise any objection to the report and plan in any manner, highlighting inadequacy of the same to grant the decree of permanent prohibitory injunction or identification of C plot in C4 as property covered by Ext.A1. 16. Considering the fact that the plan remains unopposed, the trial court and the appellate court gave emphasis to Ext.C4 plan for the purpose of identifying the property alleged to be in possession of the plaintiff, as per the ``` RSA NO. 508 OF 2021 ``` ``` 14 ``` gift deed. The learned counsel for the defendants also conceded that no specific objection was raised before the trial court after filing of Exts.C3 & C4 report and plan and the objection now canvassed was raised for the first time before the second appellate court, that too, based on the recent decisions herein above referred. 17. Before concluding the question as to whether the plan is liable to be rejected, or the same is insufficient to grant decree, another contention raised by the learned counsel for the defendants also to be taken note of. The learned counsel highlighted Sec.83 of the Indian Evidence Act and it provides that: _“83:_ _**Presumption as to maps or plans made by authority of Government:-** The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate."_ 18. In this connection, an earlier decision of this Court reported in **AIR 1959 Ker 358, Damodaran vs. Karimba** ``` RSA NO. 508 OF 2021 ``` ``` 15 ``` **Plantations Co.Ltd. & others,** relied on by the learned counsel for the defendants required to be considered. In this decision, it has been held as under: _“3. Where the Court directed the Commissioner to prepare a map of a location, but the map is not actually prepared by the Commissioner but by another, the procedure is unauthorised. The Commissioner is not to get the map prepared by another._ _7. Maps or plans made for the purposes of any cause must be proved to be accurate. They must be proved by the persons who made them. They are post litem motam and lack the necessary trustworthiness. Where maps are made for the purposes of a suit, there is, even apart from fraud, which , may exist, a tendency to colour, exaggerate, and favour which can only be counteracted by swearing the maker to the truth of his plan. The rights of property as between two parties cannot be affected by a map drawn for a totally different purpose and a purpose totally irrelevant to the subject of the dispute between them. Trustworthiness and accuracy of such a map must be proved. Otherwise requirements of S.83 are not satisfied.”_ While addressing the contention based on Sec.83 of the Evidence Act, in tune with the ratio in **Damodaran** ’s case ( _supra_ ), it is apposite to refer order XXVI Rule 10 (2) of CPC. Order XXVI Rule 10 of CPC provides that: ``` RSA NO. 508 OF 2021 ``` ``` 16 ``` ## _**“10. Procedure of Commissioner.-**_ _(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court._ _(2) Report and depositions to be evidence in suit.The report of the Commissioner and the evidence taken by him (But not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation._ _(3) Commissioner may be examined in person.Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit._ 19. The sanctity of Commission report was considered by this Court in case where the Commissioner and Surveyor were not examined in the decisions reported in [2010 KHC 895 : 2010(4) ILR Ker 403], **Bhaskaran v. Shobha & Ors.** , wherein it was held that _Ext.C1 report, which was on an exparte order of commission and prepared over an inspection_ ``` RSA NO. 508 OF 2021 ``` ``` 17 ``` _of the suit properties without prior notice to the defendants could not have been acted upon, without examining the advocate commissioner, who prepared such report. Copy of the report handed over to me reveals that the commissioner conducted such local inspection, as it being an emergent commission, without notice to the defendants. Presence of the defendants at the site when the inspection was conducted as stated by the commissioner in his report, is not at all sufficient to receive such report in evidence without such report being proved examining the commissioner before the Court. Non-examination of the commissioner to prove the report prepared without prior notice to the defendants of his inspection impairs the evidenciary value of his report, which, at the most, could have been considered only for the purpose of passing orders on the interlocutory applications for interim relief of injunction which, of course, could be decided even on the basis of affidavits. But to claim a decree of injunction in the suit, the commission report prepared without prior notice to the defendants require to be proved by the examination of_ ``` RSA NO. 508 OF 2021 ``` ``` 18 ``` ## _the advocate commissioner._ 20. Thus, on a conjoint reading of Sec.83 read with Order XXVI Rule 10, within the compass of the decisions referred, it has to be held that Commission report and plan are _ipso facto_ evidence in the case, though the court has the power to set aside or remit back the commission report. At the same time, mandatory examination of Commissioner and Surveyor are necessary only in cases where Commission Report and plan were obtained without issuing notice to all parties to the lis. But the court has the discretion to examine the Commissioner, if such a course of action is necessary, even though the report was one prepared and filed after notice to all parties. Otherwise, non-examination of the Commissioner or Surveyor is not fatal and the Court can act on commission reports, mahzar and plan prepared and filed after issuance of notice to all parties to the Suit, eschewing examination of the Commissioner and Surveyor. In the case at hand, Ext.C3 report and Ext.C4 plan were prepared after serving notice to both sides and as such non-examination of ``` RSA NO. 508 OF 2021 ``` ``` 19 ``` the Commissioner and Surveyor is of no significance. Therefore, acceptance of Exts.C3 and C4 by the courts below is perfectly justified. 21. Coming to the second question of law, in view of the above, it has to be held that not to grant a simple permanent prohibitory injunction, identity of the property for the purpose of maintaining the injunction alone is sufficient. If a property is identified for the purpose of granting a permanent prohibitory injunction even without a survey plan, there is no harm in granting a decree of permanent prohibitory injunction. 22. Keeping the above principle in mind, when Ext.C4 plan is evaluated, it could be seen that the measurements of the plan is vivid and the diagonal measurements in 2 or 3 essential points also shown in the plan with certainty. Thus it is easy for the parties to identify the property exactly to maintain and obey the prohibitory injunction and the Execution Court to find out whether violation of injunction, if any, based on Ext.C4 plan. In view of this matter, this Court is ``` RSA NO. 508 OF 2021 ``` ``` 20 ``` of the considered view that Ext.C4 plan is absolutely sufficient to identify the plaint schedule property having an extent of 5.14 acres covered by plots A to C in Ext.C4 plan for the purpose of grant of permanent prohibitory injunction and for the said purpose Ext.C4 plan shall be appended to the decree. 23. In so far as possession claimed by the plaintiff over the plaint schedule property confining the same to A, B and C plots, the evidence available as that of PW1, not substantially shaken, in a case where the defendants did not mount the witness box to claim possession over `C’ plot. It is apposite to refer in this context that defendants 1 and 2 claimed possession over plot `C’ in Ext.C4 based on an oral lease, but the oral lease not at all proved. In fact, plot C is one covered by Ext.A1. Thus no evidence forthcoming to see the so called oral lease as against the recitals in Ext.A1. Therefore, defendants 1 and 2 miserably failed to prove the title or possession over plot `C” in Ext.C4 plan. Thus the available evidence would substantiate title and possession of plaintiffs in relation to plots `A’ to `C’ in Ext.C4 plan and the only ``` RSA NO. 508 OF 2021 ``` ``` 21 ``` objection raised by the defendants stating that 1.36 Acres of property which has been leased out in favour of Kannan is of no use to the defendants. Similarly, in Ext.C4, other properties excluding the plaint schedule were specifically located and identified as F G H Plots separately lying from the plaint schedule items. 24. Viewing the suit as one for simple injunction, this court, on stretch of imagination could found that the courts below went wrong in finding possession of A,B and C plots in Ext.C4 plan by the plaintiff. However, as already observed, because of non-incorporation of amendment to exclude E schedule from the plaint schedule item, though the same is confirmed as 5.14 Acres, I am inclined to modify the respective decree and judgment under challenge confirming the permanent prohibitory injunction granted by the trial court and confirmed by the appellate court in respect of A, B and C plots in Ext.C4 plan, since E plot is admittedly sold to 3[rd] parties as per Exts.A3 & A4 documents. 25. Before parting, it is necessary to address an issue ``` RSA NO. 508 OF 2021 ``` ``` 22 ``` came to the notice of this Court while dealing with Second Appeals, including this case. In almost all cases, even though amendments were carried out in the plaints and written statements, after incorporating the amendments, amended copies of the plaints and written statements were not seen filed and the same make it difficult for the appellate courts to read the plaints and written statements inclusive of the amendments legibly in continuity. It appears that the amendments were usually being carried out somewhere in the place available in original plaints and written statements and it is difficult to read the pleadings after the amendments in continuity, to understand the case of the parties. Therefore, it is the need of the hour to direct the subordinate civil courts in the State of Kerala to ensure filing of amended plaints and written statements after incorporating the amendments raising new contentions by the parties, without fail. Therefore, all the subordinate civil courts are hereby directed to post the respective cases, for filing amended plaints and written statements, after incorporating the amendments and ``` RSA NO. 508 OF 2021 ``` ``` 23 ``` to ensure that amended plaints and written statements are there in the case records for the appraisal of the trial courts as well as the appellate courts, so as to look into the pleadings with certainty and continuity. 26. Accordingly, the Registry is directed to forward a copy of this judgment to all the civil courts for information and compliance, without fail. 27. In the result, this appeal stands allowed in part. The decree and judgment of the trial court and confirmed by the appellate court shall stand modified, holding that the permanent prohibitory injunction granted in this case is confined to A, B & C plots in Ext.C4 plan and Ext.C4 plan shall form part of the second appellate decree. Considering the nature of contentions, I direct both parties to suffer their respective costs. _Sd/-_ ``` A. BADHARUDEEN ``` **==> picture [49 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> JUDGE<br>**----- End of picture text -----**<br> Nsd