Kallanan vs Alathady Maloor Bhanumathi
2021 Latest Caselaw 14998 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

       FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943

                           RSA NO.273 OF 2016

Against the judgment and decree dated 25.6.2015 in A.S.No.24/2008 on the

 file of the Sub Court, Hosdurg arising from the judgment and decree dated

 23.2.2008 in O.S.No.336/2006 on the file of the Munsiff's Court, Hosdurg

APPELLANTS/APPELLANTS/DEFENDANTS:
    1    KALLANAN,
         AGED 65 YEARS,
         S/O.LATE KANNAN,
         AGRICULTURAL LABORER,
         R/AT KURUCHIKKUNNU,PUZHIKOOL,BEKAL,
         PALLIKERE VILLAGE, HOSDURG TALUK,
         P.O.BEKAL,KASARAGOD DISTRICT.
    2    UNNI,
         AGED 35 YEARS,
         S/O.MARICHI,
         R/AT KALICHANADUKAM,THAYANNUR VILLAGE,
         HOSDURG TALUK,P.O.KALICHANADUKKAM,
         (VIA)ANANDASRAM,KASARAGOD DISTRICT.
         BY ADVS.
         SRI.SURESH KUMAR KODOTH
         SRI.ANTONY BINU.K.P.

RESPONDENTS/RESPONDENTS/PLAINTIFFS:
    1   ALATHADY MALOOR BHANUMATHI,
        AGED 64 YEARS,
        D/O.LAKSHMI AMMA,
        R/AT ALATHADY,THAYANNUR VILLAGE,
        HOSDURG TALUK,KASARAGOD DISTRICT-671531.
    2   ALATHADY MALOOR ASHALATHA,
        AGED 44 YEARS,
        D/O.ALATHADY MALOOR BHANUMATHI,
        R/AT ALATHADY, THAYANNUR VILLAGE,
        HOSDURG TALUK,KASARAGOD DISTRICT-671531.
              BY ADV SRI.D.ANIL KUMAR

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION

ON 13.07.2021, THE COURT ON 16.07.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.273 of 2016


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                              JUDGMENT

This Regular Second Appeal is directed against the

judgment and decree dated 25.6.2015 in A.S.No.24/2008

on the file of the Sub Court, Hosdurg confirming the

judgment and decree dated 23.2.2008 in

O.S.No.336/2006 on the file of the Munsiff's Court,

Hosdurg.

2. The appellants were the defendants in

O.S.No.336/2006 and the appellants in A.S.No.24/2008.

The respondents were the plaintiffs in the suit and the

respondents in the appeal. The parties are hereinafter

referred to as 'the plaintiff' and 'the defendant' according

to their rank in the trial court unless otherwise specified.

3. The suit was filed for permanent prohibitory

injunction restraining the defendants from trespassing

over the plaint schedule property or interfering with the

plaintiff over the same.

R.S.A.No.273 of 2016

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4. The plaint A schedule property belongs to the

plaintiffs jointly under partition deed dated 13.1.1971.

The total extent allotted to the plaintiffs as per 'C'

schedule therein was 3.16 acres out of which an extent of

1 acre 20 cents was assigned by plaintiffs to several

persons and the remaining extent of 1.96 acres is with the

plaintiffs. The plaint schedule property is surrounded by

the well-defined boundaries. The defendants have no right

over the property.

5. Based on the commission report filed in the

case, the plaintiffs filed an application to amend the

plaint. The plaint schedule property was amended

whereby the suit property was scheduled with two items

of properties having an extent of 2 acres in

Re.Sy.No.448/51 and 36 cents in Re.Sy.No.448/1A. It was

found at the time of measurement by the commissioner

that though the partition deed provides properties in R.S.A.No.273 of 2016

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Re.Sy.No.448/51, portion of the suit property falls in

Re.Sy.No.448/1A and it was on the above basis second

item was added. It is alleged that the defendants made

attempt to trespass over the plaint schedule property.

6. The defendants resisted the suit by filing written

statement contending that the extent, boundaries and

description of the suit properties are incorrect. The 1 st

defendant's father obtained an extent of 5 acres in

Re.Sy.No.448/1 of Thayannur Village 50 years back from

the landlady, A.M.Kalyani Amma. After his death, the 1 st

defendant has been continuing in possession of the suit

property. The 2nd defendant has been residing in the

property of his mother Marichi which is situated on the

west-north of the property of the 1 st defendant. Marichi

was in the exclusive possession of 46¼ cents and 46½

cents in Re.Sy.No.448/1A1 and Re.Sy.No.448/51A. The

property belongs to the defendants never form part of the R.S.A.No.273 of 2016

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plaintiffs property. The amended schedule of the property,

its description, extent, etc. is also incorrect. The mother of

the 2nd defendant had filed O.S.No.352/1998 before the

Munsiff's Court, Hosdurg against the plaintiff's family

members and obtained a decree. Further, the 1 st

defendant's father sold an extent of 1 acre to one

Mariamma in Re.Sy.No.448/1A as per sale deed dated

18.5.1978. A mistake regarding survey number was crept

in the purchase certificate issued to the father of the 1 st

defendant. The right, if any, claimed by the plaintiff is

barred by adverse possession and limitation.

7. The trial court framed issues mainly regarding

the description of the suit property and possession of the

plaintiffs over the plaint schedule property on the date of

suit. PW1 was examined on the side of the plaintiffs and

marked Exts.A1 to A5. DW1 was examined on the

defendants' side and marked Exts.B1 to B6. The R.S.A.No.273 of 2016

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commissioner was examined as CW1 and marked Exts.C1

to C6.

8. Finding that the plaintiffs have been in

possession of the suit property on the date of suit, the

trial court decreed the suit. Assailing the judgment and

decree, the defendants preferred A.S.No.24/2008. The

first appeal was dismissed. Hence, the defendants

preferred the second appeal.

9. The learned counsel for the appellants

contended that the two courts below erred in granting a

decree for permanent prohibitory injunction on the

strength of possession by virtue of Ext.A1 partition deed

despite the fact that title does not relate to the second

item in the plaint A schedule property. It was further

contended that both the trial court and the first appellate

court went wrong in decreeing the suit without proper

identification of the suit property.

R.S.A.No.273 of 2016

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10. Per contra, the learned counsel for the

respondents submitted that the plaint schedule property

item Nos.1 and 2 are situated within the well-defined

boundary walls separating the property from the adjacent

property owners. According to the learned counsel, the

trial court as well as the first appellate court mainly relied

on the commission report to identify the property correctly

and granted a decree for permanent prohibitory injunction

to protect the possession of the plaintiffs over the plaint

schedule properties. The learned counsel further

contended that interference with concurrent findings of

facts by the High Court is not permissible when material

or relevant evidence was considered by the two courts

below in arriving at a just and proper conclusion.

11. In a suit for injunction simpliciter, the material

question arises for consideration is as to whether the

plaintiffs have been in possession of the suit property on R.S.A.No.273 of 2016

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the date of suit and the plaintiffs have valid cause of

action to institute the suit. The plaintiffs are claiming right

and possession over the plaint schedule property on the

basis of Ext.A1 partition deed of the year 1971. 'C'

schedule therein was allotted to the share of the plaintiffs.

The original extent of this item was 3.16 acres of land

comprised in Re.Sy.No.448/51. Subsequently 50 cents

from the northern portion of total extent was acquired by

Kodom-Belur Panchayat. There was a dispute in relation to

57 cents on the western side in between the plaintiffs and

Harijan Kannan, the father of the 1 st defendant. The

dispute was later settled. Consequent to the settlement,

the plaintiffs gave an area of 57 cents of land to Harijan

Kannan. An extent of 13 cents on the southern side was

assigned by the plaintiffs to one Ayamunhi. The remaining

extent is 1.96 acres. This 1.96 acres was scheduled in the

plaint as plaint schedule property on the date of suit. R.S.A.No.273 of 2016

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12. During the trial of the case, an Advocate

Commissioner was appointed to measure out the property

with the assistance of Taluk Surveyor. The Commissioner

and Surveyor filed a report stating that total extent of the

property within the boundary is 2.36 acres out of which 2

acres is comprised in Re.Sy.No.448/51 and balance 36

cents is comprised in Re.Sy.No.448/1A.

13. Consequent to the Commission report, the

plaintiffs filed an amendment application to amend the

plaint incorporating 2.36 acres of land within the well-

defined boundaries as the plaint schedule. In this

connection, it is pertinent to note that what was obtained

by the plaintiffs as per Ext.A1 partition deed is comprised

in Re.Sy.No.448/51. However, according to the

Commissioner, a portion of the suit property falls in

Re.Sy.No.448/1A also. What has been claimed by the

plaintiffs initially is for an area of 1.96 acres of land; R.S.A.No.273 of 2016

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whereas, the plaintiffs have amended the claim to amend

the plaint schedule incorporating an area of 2.36 acres

instead of 1.96 acres claiming an excess extent of 40

cents than the extent covered under Ext.A1 title deed.

Excess extent of 36 cents is situated in Sy.No.448/1A.

14. In this context, the commission report is very

material. In Ext.C3 commission report, the commissioner

has specifically reported that the entire property having

an area of 2.36 acres of land lies as a compact plot clearly

distinguishable from the adjoining properties. According to

the commissioner, the plaint schedule properties are plain

lands without any improvements whereas the adjoining

properties have full of improvements like coconut trees

and other tress. Except on the west appellants have no

other properties adjacent to the suit properties. The

Commissioner has reported that he found gliricidia sepium

trees and other trees on the western boundary of the suit R.S.A.No.273 of 2016

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property which is fenced to separate from the property of

Marichi. In Ext.C3 the Commissioner further reported that

although the suit property falls in two survey numbers,

the entire property lies as a compact property.

15. The plaintiffs paid basic tax to the property as

per Ext.A2 for the entire 3.16 acres in the year 1979.

Ext.A5 series basic tax receipts would show that the

plaintiffs paid basic tax for the lesser extent of 1.96 acres

in the year 1999 and 2003.

16. The defendants contended that they have been

in possession and enjoyment of 5 acres of property

comprised in Re.Sy.No.448/1 of Thayannur Village. He

obtained the said property from A.M.Kalyani Amma, the

landlord of the property for more than 50 years back.

According to the defendants, the Land Tribunal,

Kanhangad assigned the jenm right of 5 acres to Kannan

as per proceedings in SMP.2016/1976. According to the 1 st R.S.A.No.273 of 2016

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appellant, the suit property is a part of the property of the

said 5 acres. The survey number of the plaint schedule

property and the survey number of the property covered

under Ext.B1 purchase certificate are entirely different.

The Commissioner further reported that the survey

number shown in the purchase certificate is incorrect.

Acting upon the Commission report, the defendants filed

additional written statement instead of amending the

written statement contending that the survey sub division

number mentioned in the purchase certificate is incorrect

and the actual Sy.No.448/1A of Thayannur Village.

Although the Commission report was remitted back to the

same commissioner for the specific purpose of identifying

the 5 acres of land of Kannan with reference to Ext.B2

sale deed, the commissioner reported that he could not

identify the property of Kannan. On evaluating the

evidence including the oral evidence of DW1, the trial R.S.A.No.273 of 2016

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court and the first appellate court concurrently held that

the suit property has no connection with the property

covered by Ext.B1 purchase certificate. As per the

commission report, the mother of the 2 nd defendant,

Marichi has got property on the western side of the suit

property which is clearly identifiable from the suit

property.

17. Both the trial court and the first appellate court

considered the possession of the plaintiffs over the plaint

schedule property in detail. The oral evidence adduced by

the plaintiffs coupled with the commission report and the

documents of title would irresistibly lead to the inference

that the plaintiffs have been in possession of the suit

property on the date of suit within well-defined

boundaries. The commissioner clearly reported that the

property owned and possessed by the plaintiffs is

identifiable from the rest of the properties. The nature, lie R.S.A.No.273 of 2016

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and description of the property would inter alia show that

the plaintiffs have been in possession of the property.

There is no evidence adduced to come to a conclusion that

the plaintiffs have not been in possession of the property

on the date of suit. The nature, lie and extent of the

property are clearly identified in Ext.C3 report. Even if the

plaintiffs have been in possession of more than the

property they had obtained as per Ext.A1 partition deed,

still they can maintain their possession until they are

evicted through the due process of law.

18. Section 100 of the Code of Civil Procedure sets

out the grounds on which a second appeal lies and Section

101 of the C.P.C lays down in unambiguous terms that no

second appeal lies except on the grounds mentioned in

Section 100 of the C.P.C. Unless the appellant satisfies the

conditions mentioned in Section 100 of the C.P.C., no

second appeal lies. No substantial questions of law are R.S.A.No.273 of 2016

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involved in this case. Hence, this R.S.A. is liable to be

dismissed.

For the above reasons, this Regular Second Appeal is

dismissed. Considering the facts and circumstances, there

will be no order as to costs. Pending applications, if any,

stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj