Kerala High Court
Selvi vs Kanikkamman (Died), Rep. By Power Of ... on 21 January, 2025
RSA NO. 38 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
RSA NO. 38 OF 2023
AGAINST THE JUDGMENT DATED 24.08.2022 IN AS NO.14 OF 2019 OF
ADDITIONAL DISTRICT COURT - III, PALAKKAD
ARISING OUT OF THE JUDGMENT DATED 03.10.2018 IN OS NO.239 OF 2011
OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 SELVI
AGED 47 YEARS
W/O. WILLIAM MOHANDAS, PAZHANIYAR PALAYAM, KOZHINJAMPARA
VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678555
2 WILLIAM MOHANDAS
AGED 63 YEARS
S/O. YAGAPPAN, PAZHANIYAR PALAYAM, KOZHINJAMPARA VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT., PIN - 678555
BY ADVS.
SINDHU SANTHALINGAM
A.D.SHAJAN
JESSY S.SALIM
RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 KANIKKAMMAN (DIED),
W/O.INNASIRAYAR, KULLARAYAN PALAYAM, KOZHINJAMPARA VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT - 678555
REP. BY POWER OF ATTORNEY HOLDER,SARPRASADAMARY,
AGED 66 YEARS, W/O.POOVLKURISU.
2 RENZWICK
AGED 42 YEARS
S/O. SEBASTIAN, KULLARAYAN PALAYAM, KOZHINJAMPARA VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678555
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3 SARPRASADAMARY
AGED 67 YEARS
D/O. LATE KANIKKAMMAN, RESIDING AT KULLARAYANPALAYAM,
KOZHINJAMPARA VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT - 678 555
4 SUSEELA
AGED 63 YEARS
D/O. LATE KANIKKAMMAN, RESIDING AT 4/42, ANDIYAPPAR, LAYOUT,
VISUVASAPURAM, SARAVANANPATTY POST, COIMBATORE, PIN - 641035
5 ANGILIN
AGED 65 YEARS
D/O. LATE KANIKKAMMAN, RESIDING AT NEDUNGATTUCHALLA,
PARISAKKAL P O, VADAKARAPATHY, CHITTUR TALUK,
PALAKKAD, PIN - 678556
BY ADVS.
VINOD RAVINDRANATH
THAREEQ ANVER K.(K/000942/2018)
MEENA.A.(K/001814/1995)
K.C.KIRAN(K/621/2006)
M.R.MINI(K/000153/1996)
M.DEVESH(K/1253/2012)
ASHWIN SATHYANATH(K/001035/2016)
ANISH ANTONY ANATHAZHATH(K/000106/2019)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendants in the suit are the appellants herein. The Plaintiffs
filed the suit originally for permanent prohibitory injunction. During
the pendency of the suit, the plaintiffs incorporated a relief for
recovery of possession also.
2. As per the amended plaint allegations, plaint A schedule property
belonged to the first plaintiff as per Ext.A1 Sale Deed. In the year
2003, she sold one acre of land from the plaint A schedule property
to the second plaintiff as per Ext.A3. The plaint A schedule property
is a coconut garden and has been lying as a compact plot. The
defendants have property on the eastern side of Plaint A schedule
property. The defendants attempted to trespass into a portion of
plaint A schedule property on 22.03.2011 and attempted to remove
soil using JCB. Hence, the suit was filed. The Advocate
Commissioner has denoted Plaint B schedule property as X, Y, Z as
a part of Plaint A schedule property in the Commission Report and
Plan. It is shown in Resurvey No.129/1 in the name of the
defendants. As per old survey records, it is a portion of the plaint A
schedule property. Plaintiffs are entitled to recover the same if it is
found in the possession of the defendants.
3. The defendants opposed the suit prayers, contending inter alia that
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the defendant's property is situated on the property belonging to
the second plaintiff. There is no property for the first plaintiff on the
eastern side of the second plaintiff's property. The first plaintiff's
property is situated in R.S.No.128/9, the second plaintiff's property
is situated in R.S.No.128/10, and the first defendant's property is
situated in R.S.No.129/1/1 and R.S.No.129/1/2. Varattayar River is
situated on the eastern side of the first defendant's property. The
survey boundaries separate the properties of the parties. The
defendants removed soil for agricultural purposes only from
R.S.No.129/1/1 only and have not trespassed into R.S.No.128/9 or
128/10, which belonged to the plaintiffs. The defendants also
claimed adverse possession in case it is found that the plaint B
schedule property belonged to the plaintiffs.
4. The Trial Court dismissed the suit, holding that the plaintiffs did not
prove the identity of the plaint schedule properties. It is also found
that the Power of Attorney on the strength of which the suit is filed
does not include old Sy. No.64/6, in which a part of Plaint B schedule
property is situated.
5. On filing an appeal before the First Appellate Court by the plaintiffs,
the First Appellate Court allowed the appeal, decreeing the suit
granting a permanent prohibitory injunction with respect to plaint
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A schedule property, including plaint B schedule property, which is
found by the Advocate Commissioner in Ext.C2 Plan, against
trespass and committing waste.
6. I heard the learned counsel for the appellants, Sri. Sindhu
Santhalingam and the learned counsel for the respondents, Sri.
Vinod Ravindranath.
7. The learned counsel for the appellants contended that the plaint
schedule property is not identified by the Advocate Commissioner.
The plaintiffs have not proved possession of the plaint schedule
property before the Court. The plaintiffs did not have any claim over
Plaint B schedule property till 22.03.2011 when the defendants tried
to improve plaint B schedule property. The Trial Court has
specifically found that the property transferred by the first plaintiff
in favour of the second plaintiff is situated in R.S.No.62/1, 64/7 and
63/3, whereas as per Ext.A1, the first plaintiff did not have any
property in the said survey number. It is made only for the purpose
of grabbing the property of the defendants, as found by the Trail
Court.
8. I have considered the rival contentions.
9. The suit was originally for a permanent prohibitory injunction, and
later, the same was amended to include the relief of recovery of
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possession also. The claim of the plaintiffs is that plaint B schedule
property is part of plaint A schedule property. The First Appellate
Court found that the property identified by the Advocate
Commissioner as plot Nos. A, B, X, Y, Z, P, and Q in Ext.C2 Plan
tallies with the boundaries described in Ext.A1 title deed. The First
Appellate Court considered all the boundaries in the Ext.A1 title
deed. The Trial Court found that the area covered by Ext.A1 title
deed is 1.0009 hectares, whereas the area found by the Advocate
Commissioner is only 0.9770 to hold that the Plaint A schedule
property is not found. The First Appellate Court rightly relied on
Rule 56 of the Kerala Survey and Boundaries Rules and found that
it is within the permissible limits of error of 2% provided therein.
The First Appellate Court found that the plaint B schedule property
is a part of the plaint A schedule property, which is shown as X, Y,
and Z Plots in Ext.C2. The Plots X, Y, Z are situated in Old Survey
No.63/1 and 64/6. The defendants did not adduce any evidence. The
title Deed of the 1st defendant was produced by the plaintiffs, and it
is marked as Ext.A2. Ext.A2 does not cover the property in survey
No.63/1 and 64/6. Hence, the First Appellate Court rightly found
that X, Y, and Z Plots belonged to the plaintiffs.
10. It is true that neither the plaintiffs nor the defendants adduced
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any oral evidence. In a normal case, in the absence of any oral
evidence on the part of the plaintiffs, the possession could not be
found in favour of the plaintiffs. But it is clear from the evidence
that it is a property in which some coconut trees are planted. Hence,
it is similar to vacant land. In such a case, no person can prove
physical possession of the land. Accordingly, the First Appellate
Court followed the principle 'possession follows the title' and found
that the plaintiffs are in possession of the plaint schedule property.
Though Survey No.64/6 is not specifically mentioned in the Power
of Attorney on the strength of which the suit is filed, it was executed
with reference to Ext.A1 property. That apart, the defendants did
not deny the right of the Power of attorney holder to institute the
suit.
11. Hence, I do not find any ground or reason to interfere with the
judgment and decree of the First Appellate Court. No substantial
question of law arises in the matter. Hence, the Regular Second
Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
Shg/-xx JUDGE
