M.K.Vijayan vs Savithry
2021 Latest Caselaw 18053 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
     FRIDAY, THE 3RD DAY OF SEPTEMBER, 2021/12TH BHADRA, 1943
                       RSA NO. 549 OF 2021
[Against the judgment and decree       dtd.23.3.2020 in A.S.No.
76/2011 on the file of the Sub Court, Cherthala arising from the
judgment and decree dated 29.8.2011 in O.S.No.200/2008 on the
file of the Addl.Munsiff's Court, Cherthala.]

APPELLANTS/RESPONDENTS/DEFENDANTS:

      1       M.K.VIJAYAN,
              AGED 69 YEARS
              S/O. KRISHNAN, MUKKUDITHARAYIL, VAYALAR VILLAGE,
              VAYALAR PANCHAYATH, CHERTHALA, PIN 688 536.
      2       SASIDHARAN,
              AGED 75 ,S/O. KRISHNAN, MUKKUDITHARAYIL, VAYALAR
              VILLAGE, VAYALAR PANCHAYATH, CHERTHALA, PIN 688 536.
              BY ADVS.M/S. DARSAN SOMANATH, MANJUSHA K, SREELAKSHMI
              SABU & RAFEEZ NOOH

RESPONDENTS/ADDL.RESPONDENTS        (LEGAL     HEIRS   OF    DECEASED   1ST
RESPONDENT)/PLAINIFF:

      1       SAVITHRY,
              W/O. V.K. PURUSHOTHAMAN, PUTHENTHARAYIL, VETTAKKAL.P.O
              CHERTHALA PIN 688 529 ,ALAPPUZHA DISTRICT.
      2       PRAMOD,
              S/O. V.K. PURUSHOTHAMAN, PUTHENTHARAYIL, VETTAKKAL
              P.O., CHERTHALA, PIN 688 529 ,ALAPPUZHA DISTRICT.
      3       SAINDHU,
              D/O. V.K. PURUSHOTHAMAN, PUTHENTHARAYIL, VETTAKKAL
              P.O., CHERTHALA, PIN 688 529 ,ALAPPUZHA DISTRICT.
      4       PRAVEEN, S/O. V.K. PURUSHOTHAMAN, PUTHENTHARAYIL,
              VETTAKKAL P.O., CHERTHALA, PIN 688 529,ALAPPUZHA
              DISTRICT.
      5       VINEETHA UTHAMAN,
              D/O. V.K. PURUSHOTHAMAN, PUTHENTHARAYIL, VETTAKKAL
              P.O., CHERTHALA, PIN 688 529 ,ALAPPUZHA DISTRICT.
              BY ADVS.S.SREEKUMAR (SR.), P.MARTIN JOSE, P.PRIJITH,
              THOMAS P.KURUVILLA, R.AJAY BEN JOSE
              MANJUNATH MENON, ANNA LINDA V.J, HANI P.HARIKRISHNAN
              S.,SACHIN JACOB AMBAT


          THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON    01.09.2021,     THE   COURT    ON      03.09.2021     DELIVERED   THE
FOLLOWING:
 R.S.A.No.549 of 2021

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                            J U D G M E N T

This appeal is directed against the

judgment and decree dtd.23.3.2020 in A.S.No.

76/2011 on the file of the Sub Court, Cherthala

(hereinafter referred to as 'the first appellate

court')arising from the judgment and decree dated

29.8.2011 in O.S.No.200/2008 on the file of the

Addl.Munsiff's Court, Cherthala (hereinafter

referred to as 'the trial court').

2. The appellants in this appeal are the

defendants and the respondents herein are the

legal heirs of the plaintiff, who are the

additional respondents in A.S. For brevity, the

parties shall be referred to as referred in

the original suit.

3. The suit is for permanent prohibitory

injunction restraining the defendants or anybody

under them from trespassing upon or interfering R.S.A.No.549 of 2021

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with the peaceful enjoyment of plaint schedule

item No.1 property and also for a decree of

mandatory injunction directing the defendants

to remove plaint schedule item No.2 and in

case of failure, the same is sought to be

removed through the process of court.

4. The plaint averments in brief are

hereinbelow:-

The plaint schedule item No.1 along

with a larger extent of property originally

belong to the family of the plaintiff by

virtue of the partition deed No.3676/1954. 'A'

schedule items therein in the aforesaid

partition deed are set apart to the share of

the plaintiff. 'A' schedule item No.2 in the

partition deed was having an extent of 31

cents. Out of the above, ten cents of R.S.A.No.549 of 2021

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property was given to Bhargavi, who is the

mother of the defendants and the wife of late

Krishnan as kudikidappukari. The remaining

extent of 21 cents is in the possession and

enjoyment of the plaintiff and is scheduled as

item No.1. The defendants, who are successors

of late Bhargavi, are now raising frivolous

contentions over the plaint schedule item No.1

property. They have succeeded in putting up a

structure in the plaint schedule property item

No.1, which is scheduled as plaint schedule

property item No.2. Hence, the suit.

5. In the written statement filed, the

first defendant contended that the

predecessor-in-interest of the plaintiff was

having no manner of right over the property.

They have denied the title of the plaintiff R.S.A.No.549 of 2021

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over an extent of 21 cents of land. It is

their contention that a serpent grove is

situated in the plaint schedule item No.1

property. According to them, the defendants

have been maintaining the serpent grove and

adjacent pond in plaint schedule item No.1

property. They would contend that plaint

schedule item No.2 property has been in

existence from time immemorial.

6. During the trial of the case, PW1

was examined and marked Exts.A1 to A3 on

plaintiff's side. DW1 was examined on the

defendants' side and no documentary evidence

was marked. Exts.C1 to C2(a) were also

marked.

7. After having heard both sides, the

trial court entered a finding that the R.S.A.No.549 of 2021

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defendants unauthorisedly trespassed into the

plaint schedule item No.2 property and

erected structures therein. Hence, the trial

court granted a decree for mandatory

injunction directing the defendants to remove

the structures in plaint schedule item No.2

property. Consequential permanent prohibitory

injunction restraining the defendants from

trespassing into the plaint schedule item No.1

property was also granted. Challenging the

judgment and decree, the defendants carried

the matter in appeal. The appellate court

dismissed the appeal confirming the judgment

and decree of the trial court. Hence,this

Second Appeal.

8. Heard learned counsel for the

appellant Sri.Darsan Somanath and the learned R.S.A.No.549 of 2021

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counsel for the respondents Sri.Martin Jose.

9. Learned counsel for the appellants

contended that both the trial court and the

appellate court went wrong in accepting the

copy of the partition deed as evidenced in the

suit. According to the learned counsel, when

secondary evidence relating to a document is

admissible only if primary evidence is not

readily available with the party. The learned

counsel submitted that the respondents or

their predecessors have title to the property

to get the mandatory injunction sought for.

10. It is true that Ext.A1 is the

certified copy of the partition deed. The

plaintiff traces his title on the strength of

Ext.A1 partition deed. There is no hard and R.S.A.No.549 of 2021

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fast rule that the production of the original

document before court is necessary to confer

title on the plaint schedule property. Ext.A1

is admittedly the certified copy of the

original partition deed. Mere non-production

of the original is not a ground to hold that

Ext.A1 title cannot be acted upon. Exts.A2

and A3 tax receipts are also produced to show

that the plaintiff has paid tax to the

property. By virtue of Ext.A1, an area of 31

cents was allotted to the family of the

plaintiff way back in 1954. Out of the 31

cents, ten cents were given to Bhargavi, who

is none other than the predecessor-in-interest

of the defendants. It is brought out in

evidence that Bhargavi was a kudikidappukari

in the plaint schedule property and she R.S.A.No.549 of 2021

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obtained 10 cents of property as kudikidappu

right. When the defendants' predecessor

obtained kudikidappu right over the plaint

schedule property, the successors-in-interest

are not legally competent to deny the title of

the plaintiff over the plaint schedule

property in respect of the balance area of 21

cents. It appears from the facts and

circumstances of the case that the defendants

extended their right over the land exceeding

the 10 cents allotted to them by way of

kudikidappu right. It has come out in

evidence that the attempt on the part of the

defendants is to grab the remaining extent of

property under the pretext of a serpent grove

in the plaint schedule property.

11. The commission reports and plans R.S.A.No.549 of 2021

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were prepared with notice to the Commissioner.

The commission report would irresistibly lead

to the inference that the serpent grove,

idols and photos therein were installed

recently in the plaint schedule item No.2

property. When DW1 was examined, he admitted

that the defendants have no manner of right

over the plaint schedule property except the

right to worship. The plaintiff has proved

that before 2008, there were no structures in

plaint schedule item No.1 property.

12. Both the trial court and the

appellate court analysed the entire facts in

detail and entered a finding that the

plaintiff is entitled to get mandatory

injunction directing to remove the plaint

schedule item No.2 structures in the plaint R.S.A.No.549 of 2021

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schedule item No.1 property. Consequential

permanent prohibitory injunction was also

granted.

13. On behalf of the contesting

respondent, it has strenuously been contended

with considerable force that there was no

question of law involved in this appeal much

less any substantial question of law to

warrant interference in second appeal.

Concurrent findings are sought to be set aside

in second appeal. To be a question of law

involved in the case, there must be first, a

foundation for it laid in the pleadings, and

the question should emerge from the

sustainable findings of fact, arrived at by

Courts of facts, and it must be necessary to

decide that question of law for a just and R.S.A.No.549 of 2021

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proper decision of the case. Non-production of

the original partition deed is not a

substantial question of law. A finding of

fact is not open to challenge in second appeal

even if appreciation of evidence is wrong and

the finding of fact is incorrect. Hence, the

appeal is liable to be dismissed.

14. At this juncture, the learned

counsel for the appellants submitted that the

appellants may be given four months time to

remove the structures in the plaint schedule

item No.2. Considering the submission made,

it is just and proper to grant four months

time to remove the plaint schedule item No.2

structures if the appellants file an affidavit

undertaking to remove the structures as stated

herein above within four months and surrender R.S.A.No.549 of 2021

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the premises before the executing court within

one month from today. I do so. In case of

failure, the plaintiff is at liberty to

execute the decree in accordance with law.

Resultantly, the appeal is dismissed

in limine. There will be no order as to

costs. Pending applications, if any, shall

stand closed.

Sd/-

N.ANIL KUMAR, JUDGE

MBS/ R.S.A.No.549 of 2021

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APPENDIX OF RSA 549/2021

PETITIONER ANNEXURE Annexure A1 THE ORIGINAL RECEIPT ISSUED BY THE KERALA KAVU PARISTHIDI SAMRAKSHANA SAMITHI DATED 10/12/2007.

Annexure A2 THE ORIGINAL CERTIFICATE ISSUED BY THE SECRETARY OF THE KERALA KAVU PARISTHIDI SAMRAKSHANA SAMITHI DATED 09/12/2007.