Beepathumma vs Joicy
2021 Latest Caselaw 13681 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
  FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                   RSA NO. 358 OF 2018
  AGAINST THE JUDGMENT AND DECREE DTD.10.10.2017 IN AS
NO.186/2008 OF FIRST ADDITIONAL DISTRICT COURT, THRISSUR
  AGAINST THE JUDGMENT AND DECREE DTD.09.04.2008 IN OS
    NO.357 OF 2004 OF MUNSIFF COURT, WADAKKANCHERY]
APPELLANTS/APPELLANTS/DEFENDANTS:

    1       BEEPATHUMMA,
            AGED 80 YEARS,
            W/O. MOIDUNNY, KALEPLAKKAL VEEDU, T. B. ROAD,
            OTTUPARA DESOM, TALAPPILLY TALUK.
    2       ALI
            AGED 54 YEARS
            AGE 54, S/O. BEEPATHUMMA, KELAPLAKKAL VEEDU,
            T.B. ROAD, OTTUPARA DESOM, TALAPPILLY TALUK.
    3       NABEESA,
            AGED 49 YEARS,
            S/O. ALI, KELAPLAKKAL VEEDU, T. B. ROAD,
            OTTUPARA DESOM, TALAPPILLY TALUK.
            BY ADV SRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/RESPONDENTS/PLAINTIFFS:

    1       JOICY
            W/O. MANUMBAL ABRAHAM, KUMARANELLUR VILLAGE
            DESOM, TALAPPILLY TALUK-686016.
    2       ABRAHAM
            S/O. MANDUMBAL CHUMMAR, KUMARANELLUR VILLAGE
            DESOM, TALAPPILLY TALUK-686016.
            BY ADVS.
            DR.GEORGE ABRAHAM
            SHRI.JOBY D JOSEPH


    THIS     REGULAR   SECOND    APPEAL   HAVING    COME   UP   FOR
ADMISSION     ON   28.06.2021,    THE     COURT    ON   02.07.2021
DELIVERED THE FOLLOWING:
 R.S.A.No. 358 of 2018


                                ..2..

                             JUDGMENT

This appeal is directed against the judgment and

decree dated 10.10.2017 in A.S.No. 186/2008 on the file of Ist

Addl.District Court, Thrissur (hereinafter referred to as 'the first

appellate court') confirming the judgment and decree dated

9.4.2008 in O.S.No. 357/2004 on the file of the Munsiff's Court,

Wadakkanchery (hereinafter referred to as 'the trial court'). The

appellants are the defendants and the respondents are the

plaintiffs in O.S.No.357 of 2004 respectively. The suit was for

mandatory injunction and recovery of possession on the strength

of title. The parties are hereinafter referred to as 'the plaintiff'

and 'the defendant' according to their status in O.S.No. 357/2004

unless otherwise stated.

2. The plaint averments in brief are as follows:-

The first plaintiff is the owner of plaint A schedule R.S.A.No. 358 of 2018

..3..

item No.1, which she acquired as per Sale Deed No.2356/2002

of the Sub Registrar's Office, Wadakkanchery. The first plaintiff

is the wife of the second plaintiff. The second plaintiff is the

owner of the plaint A schedule item No.2, which he acquired as

per Sale Deed No.509/2002 of the S.R.O., Wadakkanchery.

Both the properties are lying contiguously. It is alleged that on

10.11.2002, the first defendant trespassed upon item No.1 and

constructed a latrine and a bathroom therein, which are

scheduled as plaint C schedule. Thereupon, the plaintiffs issued

an Advocate Notice to the first defendant calling upon the first

defendant to remove C schedule structures. Instead of

complying with the request, she, along with her son and

daughter-in-law, who are defendants 2 and 3 in the suit, further

trespassed upon item No.1 and reduced a part of the property

into their possession, which is scheduled as B schedule. In

the encroached B schedule, a shed was constructed, which is R.S.A.No. 358 of 2018

..4..

separately scheduled as D schedule. In fact, the B schedule is

part of the plaint A schedule property. Since the defendants are

uauthorisedly occupying the puramboke land, the plaintiffs are

entitled to get recovery of the plaint B schedule property. The

defendants are further directed to remove the plaint C and D

schedule structures by way of a mandatory injunction.

Consequential permanent prohibitory injunction restraining the

defendants from trespassing upon the plaint A and B schedule

properties are also sought for.

3. Defendants 1 to 3 filed written statement

contending that the husband of first defendant was in occupation

of 8 cents of land comprised in Sy.No.293 situated on the south

of the plaint schedule property for the last 45 years. After his

death, the first defendant has been in possession of the said

property. A house was constructed therein by her husband about

45 years back. The defendants obtained patta with respect to 4 R.S.A.No. 358 of 2018

..5..

cents of property. The Village Officer measured the property

and fixed the boundary. This boundary was demolished by the

first plaintiff in order to widen a pathway for ingress and egress

to the plaint schedule property. The plaintiffs took heavy

vehicles and caused damage to the house of the defendants.

Thereupon, a complaint was filed before the Revenue Division

Officer on 2.9.2003. As a counter-blast to this complaint,the

present suit was filed.

4. During the trial of the case, the first plaintiff was

examined as PW1 and marked Exts.A1 to A9. The Taluk

Officer of Talappilly Taluk was examined as DW1. Exts.B1 to

B2(d) were marked. Exts.C1 to C2(a) were also marked.

5. By judgment and decree dated 9.4.2008, the trial

court decreed the suit granting recovery of possession of plaint

B schedule property, which is marked as B in Ext.C2(a) plan.

Consequential mandatory injunction directing the defendants to R.S.A.No. 358 of 2018

..6..

remove the bathroom and latrine in the plaint B schedule

property within two months from the date of decree was also

granted. On such recovery, the defendants were further

restrained by way of permanent prohibitory injunction from

trespassing into the plaint A schedule property and from

committing any waste therein. Being aggrieved by the judgment

and decree, the defendants filed appeal before the first appellate

court. The first appellate court dismissed the appeal confirming

the judgment and decree of the trial court.

6. The first appellate court analysed the oral

evidence adduced on behalf of the plaintiffs, scrutinized and

examined the documentary evidence on record including in

particular Ext.A2 sale deed and Exts.A8 and A9 tax receipts.

The first appellate court meticulously examined the commission

report and entered a finding that the plaint B schedule property

is part of A schedule and thus, the plaintiffs are entitled to R.S.A.No. 358 of 2018

..7..

recover the same. Consequently, the unauthorised structures

put up in the property by way of trespass were directed to be

removed by way of a decree of mandatory injunction.

7. The learned counsel for the appellants contended

that considering the nature of the dispute, both the trial court as

well as the first appellate court were not justified in accepting

Ext.C2(a) plan. It is contended that in the light of Exts.B2(c)

and B2(b) plan, which do not tally with Ext.C2(a) plan, the trial

court and the first appellate court materially erred in accepting

Ext.C2(a) plan. According to the learned counsel for the

appellants, when the defendants are banking upon the

government grant under the provisions of the Land Assignment

Act and Rules, the suit instituted itself is misconceived.

8. Heard the learned counsel for the appellants and

the learned counsel for the respondents.

9. The defendants are claiming right on the basis of R.S.A.No. 358 of 2018

..8..

possessory right over puramboke land without having a definite

idea regarding its extent or its boundaries. On measurement of

the property, the B schedule property was found to be in the

possession of the defendants. The first plaintiff obtained the

plaint A schedule item No.1 property pursuant to Ext.A1 sale

deed. The second plaintiff is her husband. He obtained right

over plaint A schedule item No.2 property as per Ext.A2 sale

deed. Exts.A8 and A9 are tax receipts evidencing payment of

land tax in respect of the above properties. It is the definite case

of the plaintiffs that the defendants trespassed into the plaint

schedule property and constructed a shed therein, which is

scheduled as plaint B schedule. The first plaintiff as PW1

adduced evidence to show that she is entitled to get recovery of

plaint B schedule property after removing the unauthorised

structures therein.

10. The case of the defendants is that the husband of R.S.A.No. 358 of 2018

..9..

the first defendant was in possession of the property having an

extent of 8 cents and after the death of her husband, the first

defendant, her son and daughter-in-law have been residing in the

plaint schedule property. They have claimed title over the

property by way of patta issued by the Government. During

trial, DW1, the Tahsildar, Talappilly taluk was examined. The

Tahsildar produced Ext.B2 file, with reference to an application

submitted by the defendants for measuring out the property

allegedly owned by them. Accordingly, the Village officer

measured out the property as per Exts.B2(a) to B2(d). The

properties covered by Ext.B2(a) to B2(c) are puramboke land.

DW1 deposed before the trial court that no patta was issued to

the first defendant as contended by her. In the application, the

first defendant had applied for 5 cents of land whereas the

village officer reported possession of 3 cents with the first

defendant.

R.S.A.No. 358 of 2018

..10..

11. In the suit, the claim of the defendants was that

the first defendant was in possession of the property having an

extent of 8 cents. However, the application before the Tahsildar

would indicate that the first defendant had applied for 5 cents of

land and the Village Officer reported 3 cents. In fact, the

application filed by the first defendant for patta was rejected by

the competent authorities. In the suit, what is claimed by the

first defendant is possessory right to defeat the claim of the

plaintiffs. The first defendant has no consistent case regarding

the possession claimed by her. In view of the circumstances, the

trial court and the first appellate court entered a finding that the

plaintiffs obtained title and possession over the property

pursuant to Ext.A1,A2,A8 and A9. Hence, both the courts

below concurrently accepted the plan prepared by the

Commissioner during the trial.

12. Under Section 100 of the Code of Civil R.S.A.No. 358 of 2018

..11..

Procedure, 1908, the jurisdiction of the High Court to interfere

with the judgments of the courts below is confined to hearing on

substantial question of law. This Court ordinarily will not

interfere with the concurrent findings of facts, if it involves re-

appreciation of evidence. On the basis of the evidence on

record, the trial court and the first appellate court have

concurrently arrived at a finding that the plaintiffs are entitled to

recover plaint B schedule property in Ext.C2(a) plan. The

defendants were also directed by way of mandatory injunction to

remove the bathroom and latrine in the plaint B schedule within

two months from the date of decree. Consequential permanent

prohibitory injunction from trespassing into plaint A schedule

property and from committing any waste therein was also

granted. In the first appeal, the first appellate court clarified that

the decree is silent about the structure described as 'D' schedule.

Hence, it was clarified that the said structure to the extent it is in R.S.A.No. 358 of 2018

..12..

the portion scheduled as 'B' in Ext.C2 Plan would also be

demolished as stated in clause (b) of the decree. In fact, the trial

court appended Exts.C2 and C2(a) plan along with the decree.

This Court in Second appeal cannot reverse concurrent finding

particularly when this court has not been able to find out any

material to prove that the findings of the trial court as well as the

first appellate court were palpably erroneous. It is abundantly

clear from the discussion made hereinabove, no substantial

questions of law are involved in this case. Hence, this Second

appeal is liable to be dismissed in limine.

In the result, the Second appeal is dismissed in

limine. Considering the facts and circumstances, there would be

no order as to costs. Pending applications if any, stand disposed

of.

Sd/-

                                               N.ANIL KUMAR,
MBS/                                                  JUDGE