Siniya Kanhirala vs Koorappillil Mathew
2023 Latest Caselaw 592 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                 THE HONOURABLE MR. JUSTICE SATHISH NINAN
         THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                           RSA NO. 1336 OF 2015
   AGAINST THE JUDGMENT IN AS 189/2013 OF I ADDITIONAL DISTRICT COURT,
                                   KOZHIKODE
            OS 250/2010 OF III ADDITIONAL SUB COURT, KOZHIKODE
                                     -----
APPELLANTS IN RSA-RESPONDENTS 1 & 3 TO 6 IN AS - DEFENDANT NO.1 & LRs OF
DEFENDANT NO.2 IN SUIT:

     1       SINIYA KANHIRALA,
             D/O. ABDUL ALI, AGED 29, MATHURA KUZHI HOUSE, KODIYATHOOR
             AMSOM, CHERUVADI DESOM, KOZHIKDE TALUK, PIN - 673 661,
             REPRESENTED BY THE POWER OF ATTORNEDY NAZEEL KANJIRALA,
             APPELLANT NO.3 HEREIN.

     2       SAKEENA KANJIRALA
             W/O. ABDUL ALI KANJIRALA, AGED 56, RESIDING AT AREEKODE AMSOM
             AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT - 673 639.

     3       NAZEEL KANJIRALA,
             S/O. ABDUL ALI KANJIRALA, AGED 32, RESIDING AT AREEKODE AMSOM
             AND DESOM, ERNAD TALUK, MALAPPURAM - 673 639.

     4       SHAMEEM KANJIRALA,
             S/O. ABDUL ALI KANJIRALA, AGED 29, RESIDING AT AREEKODE AMSOM
             AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT - 673 639.

     5       SHAKEEL KANJIRALA,
             S/O. ABDUL ALI KANJIRALA, AGED 29, RESIDING AT AREEKODE AMSOM
             AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT - 673 639.

             BY ADVS.
             SRI.P.B.KRISHNAN
             SRI.P.M.NEELAKANDAN
             SRI.S.NITHIN ANCHAL
             SRI.SABU GEORGE
             SRI.P.B.SUBRAMANYAN
 RSA NO. 1336 OF 2015                -2-


RESPONDENT IN RSA-APPELLANT IN AS - PLAINTIFF IN SUIT:

           KOORAPPILLIL MATHEW,
           S/O. KOORAPPILLIL JOSEPH, AGED 67 YEARS, KOORAPPILLIL HOUSE,
           P.O. KOOMBARA, KUMARANALLUR AMSOM, ALLY DESOM, KOZHIKODE
           TALUK - 673 604.

           BY ADVS.
           SRI.P.MARTIN JOSE
           SRI.P.PRIJITH
           SRI.S.SREEKUMAR SR.
           SRI.THOMAS P.KURUVILLA




     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
             = = = = = = = = = = = = = = = = = =
                    R.S.A. No.1336 of 2015
             = = = = = = = = = = = = = = = = = =
           Dated this the 12th day of January, 2023

                             J U D G M E N T

The suit for prohibitory injunction against

trespass, though dismissed by the trial court was

decreed in appeal. Hence this second appeal by the

defendants.

2. Plaint schedule property is described as having

an extent of 1.8211 hectares (4.50 acres). The plaintiff

claims to be in possession and enjoyment of the plaint

schedule property since the year 1965. He claims to have

obtained title over the property as per Ext.A1 'patta'

issued by the Land Tribunal pursuant to Ext.A2 order in

SM proceedings. The defendants' property is on the

southern and western sides of the plaintiff's property.

The suit is filed alleging attempt on the part of the

defendants to trespass into the plaint schedule

property.

RSA NO. 1336 OF 2015

3. The defendants disputed the claim of the

plaintiff. It was contended that Ext.A1 purchase

certificate is bad in law since, the plaintiff does not

claim to have come into possession as a lessee and

further, the claim for possession is after 01.04.1964.

The defendants claimed possession of an extent of 4.21

acres of property on the strength of Ext.B1 Settlement

Deed of the year 2007 and Ext.B9 agreement. It was also

contended that, the 4.21 acres in the possession of the

defendants is situated enclosed with a fencing. It was

contended that the attempt of the plaintiff is to grab a

portion of the defendants' property.

4. After filing of the written statement, the suit

was amended by the plaintiff incorporating challenge

against Ext.B1 Settlement Deed.

5. The trial court held that, the plaintiff not

being a party to Ext.B1 document, the challenge against

the same is unwarranted. On the issue of possession, it RSA NO. 1336 OF 2015

was found that, the plaintiff could not establish his

exclusive possession over the property.

6. Ext.C3 is the Commissioner's Report and

Ext.C3(a) is the survey plan produced therewith. The

commissioner identified the plaint schedule property,

though described as 4.50 acres, to be having an extent

of only 4.15 acres. The court noticed that the real

dispute is with regard to 81 cents out of the 4.15 acres

and that the remaining extent is admittedly with the

possession of the plaintiff.

7. The first appellate court found that the

materials on record proves that the plaintiff is in

possession of the disputed property and accordingly

granted a decree in favour of the plaintiff.

8. Heard learned counsel Sri.P.B.Krishnan on behalf

of the appellants-defendants and learned Senior Counsel

Sri.S.Sreekumar on behalf of the respondent-plaintiff on

the following substantial questions of law :- RSA NO. 1336 OF 2015

(i) Was the first appellate court right in having relied on

Ext.A1 purchase certificate after having held that the suit

being one for injunction simplicitor, the challenge against

Ext.A1 purchase certificate on the grounds as urged is not

liable to be considered ?

(ii) On the materials on record, was the first appellate

court justified in having found possession of the plaint

schedule property with the plaintiff ?

9. Referring to paragraph 3 of the plaint, the

learned counsel Sri.P.B.Krishnan would argue that, the

plea is that the plaintiff came into possession of the

property in the year 1965 that is, after the coming into

force of the Kerala Land Reforms Act. The plaintiff does

not have a case that he was a cultivating tenant of the

property or that he came into possession as a lessee.

Therefore, Ext.A1 is bad in law. Though the first

appellate court observed that the suit being one for

injunction simplicitor the question of title need not be RSA NO. 1336 OF 2015

considered, still the Court went on to rely on Ext.A1 to

find possession with plaintiff. Therefore, the appellate

decree is liable to be set aside, it is contended.

10. The suit is one for injunction simplicitor.

Court fee is paid under Section 27(C) of the Court Fees

and Suit Valuation Act. The issue raised for trial is

also confined to possession. Therefore, though there is

a rival claim of title, it does not call for

determination in the suit. The first appellate court

found that, though the allegation raised by the

defendants against Ext.A1 purchase certificate prima

facie seems to have some force, the said contention need

not be gone into in the present suit, the suit being one

for injunction simplicitor. The first appellate court

could not be faulted for having concluded so. However,

it appears that the first appellate court has proceeded

further to rely on Ext.A1 purchase certificate to find

possession of the property of the plaintiff. Obviously, RSA NO. 1336 OF 2015

it could not have been done. Substantial question of law

No.(i) is answered accordingly.

11. Whether independent of Ext.A1 purchase

certificate there are materials to find that the

plaintiff is in possession of the plaint schedule

property is the question to be considered.

12. Ext.C1 is the commissioner's Report dated

06.07.2007. In Ext.C1, the commissioner noticed that, in

the admitted property of the defendants there are no

cultivation or improvements but a small tiled shed. The

Commissioner also noticed that the admitted property of

the defendants is completely tilled up. However, the

disputed property is not tilled. It contains grass.

There are approximately 25 numbers of arecanut trees and

certain jungle trees (]Spacw). Stumps of arecanut trees

were also found. Similarly, in the admitted property of

the plaintiff was found various improvements like

arecanut trees, coconut trees etc. RSA NO. 1336 OF 2015

13. Before the trial court, the plaintiff alleged

that pending the suit the defendant violated the order

of status quo and trespassed into the disputed property.

An advocate commissioner was taken out to prove the

allegation. He filed Exts.C2 report and C2(a) sketch.

The Commissioner noticed that, subsequent to his first

visit the disputed property was enclosed by the

defendants with a fence and was made part of the

defendants' property. It was also noticed that certain

arecanut trees were cut and removed recently. The Court,

as per order dated 10.04.2008 in I.A. No.4782/2007,

directed the defendants to remove the fence. This is

noted here only to explain though Ext.C2 indicates that

the disputed portion is fenced along with defendants'

property, it is an act in violation of order of status

quo passed by the court.

14. The fact that the commissioner reported that

the defendants' property was lying barren and all tilled RSA NO. 1336 OF 2015

up, whereas the plaintiff's property and the disputed

property contain vegetation of similar nature, are

materials which support the case of the plaintiff

regarding his possession of the property. Prima facie

those are indicators showing the possession of the

property with the plaintiff. The appellate court has

taken note of the said factors also while granting a

decree for injunction. As noticed, the suit is one for

injunction simplicitor and the question for

determination is only of possession. Materials indicate

that the plaintiff is in possession of the plaint

schedule property. The finding of the appellate court is

justified by the physical features of the property as

reported by the commissioner. Substantial question of

law No.(ii) is answered accordingly.

15. The finding of the appellate Court is founded

on the materials. Even assuming that another view of the

matter is possible, that does not entitle this Court to RSA NO. 1336 OF 2015

substitute the same in the jurisdiction under Section

100 of the Code of Civil Procedure.

In the light of the above, leaving open the issue

of title between the parties, the Regular Second Appeal

is dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge