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2000 DIGILAW 554 (KER)

Ammini @ Unni Maya Nangiar v. Lakshmi

2000-10-24

D.SREEDEVI

body2000
Judgment :- 1. This appeal is directed against the decree and judgment in A.S. No. 90/87 of the Additional District Judge, Thrissur, which was filed against the decree and judgment in O.S.No.117/81 of the Munsiff's Court, Wadakkancherry. The plaintiff before the court below is the appellant. 2. The facts, for the purpose of this case, in brief is this: The plaint schedule property having an extent of 26 cents comprised in Sy.No.1051/4 in Kottapuram Village belongs to the plaintiff. This 26 cents of property is a part and parcel of 42 cents allotted to the plaintiff under a partition deed of the year 1974. The plaintiff has alienated 6 cents to one Kochanthony and 10 cents to one Sankaran Asari, the remaining extent is the plaint schedule property. 3. On the eastern side of the plaint schedule property there is a Edavazhi. According to the plaintiff, the defendants are residing on the eastern side of the Edavazhi and they are attending to trespass upon the plaint schedule property and to cut and remove the cashewnut trees and thereby committed waste. The plaintiff has alleged that the defendants have cut down the cashewnut trees and tampered with the boundary of 10 cents. Therefore the plaintiff has filed the above suit for a decree of permanent injunction and also for realisation of damages to the tune of Rs.100/- with interest for the loss caused to the plaintiff by cutting the cashewnut trees from the plaint schedule property. 4. The defendants contested the suit. Their contention is that the plaintiff has no property as described in the plaint, that the allegation that the eastern boundary of the property is an Edavazhi is not correct, that they have not cut and removed the cashewnut trees as alleged in the plaint or dismantled the boundaries of the property and that 32 cents comprised in Sy.No.1051/3 of Kottappuram Village in their possession was taken on lease by the deceased husband of the first defendant from one Krishnan Nambiar. The said properties were auctioned in O.S.495/1107 for realising the debt due from Krishnan Nambiar. One Lonappan purchased the said property and therefore that property was taken on lease by the deceased husband of the first defendant and accordingly the defendants are in possession of the plaint schedule property. They have also purchased the jenm right over the said property. The said properties were auctioned in O.S.495/1107 for realising the debt due from Krishnan Nambiar. One Lonappan purchased the said property and therefore that property was taken on lease by the deceased husband of the first defendant and accordingly the defendants are in possession of the plaint schedule property. They have also purchased the jenm right over the said property. So they pray for the dismissal of the suit. 5. The trial court, after taking evidence, decreed the suit in favour of the plaintiff. Aggrieved by the said decree and judgment, the defendants filed A.S.No.90/87. The learned District Judge set aside the decree and judgment of the trial court and dismissed the suit. Aggrieved by the said decree and judgment the plaintiff has filed this appeal. The learned District Judge held that the plaintiff's claim that he is in possession of the plaint schedule property cannot be granted unless the property is located by survey measurements with the help of Village Officials. 6. The questions of law involved in this case are the following: 1. Is it necessary to look into a title of the properties and is the court below justified in dismissing the suit on the ground that the plaintiff has not proved title over the plaint schedule property 2. Is not a person in possession entitled to get a decree of injunction? 7. The plaintiff claims that she is in possession of the plaint schedule property as per Ext.A1 partition deed. To prove her title over the said property she filed Exts.A1 to A9. Ext.A1 goes to show that 42 cents of property comprised in Sy.No.1051/4 has been allotted to her in Schedule Item No.2. Initially the plaintiff had only verumpattom right over the plaint schedule property. She then purchased the jenm right over the property under SMP232/1981 of the Land Tribunal Wadakkancherry. Ext.A7 is the S.M.P. proceedings. Ext.A6 is the certified copy of purchase certificate issued in favour of the plaintiff from the Land Tribunal, Wadakkancherry. Ext.A2 series are the receipts evidencing payment of land revenue. The plaintiff as PW1 has stated that she had sold away 10 cents of land to Sankaran and 6 cents to one Kochanthony. The 10 cents sold in favour of Sankaran has been purchased by the plaintiff's son under Ext.A8. In all the documents, in favour of the plaintiff, the eastern boundary is described as Edavazhi. 8. The plaintiff as PW1 has stated that she had sold away 10 cents of land to Sankaran and 6 cents to one Kochanthony. The 10 cents sold in favour of Sankaran has been purchased by the plaintiff's son under Ext.A8. In all the documents, in favour of the plaintiff, the eastern boundary is described as Edavazhi. 8. According to the defendants, the description of the eastern boundary of the plaint property is not correct. But, when the second defendant was examined as DW1, she has admitted that the eastern boundary of the plaint schedule property is Edavazhi. The defendants admit that 10 cents of property is in the possession of one Kochanthony. The defendants have no case that they have transferred their property in favour of Kochanthony. Kochanthony claims under the plaintiff. The defendants claim that the plaint property is comprised in Sy.No.1051/3 and that it is in their possession. 9. A commission was issued to prepare a report and mahazar in respect of the plaint schedule property. The Commissioner filed Ext.C1 report and Ext.C2 rough sketch. He has noted the eastern boundary of the plaint property as an Edavazhi. The property of Kochanthony is also shown in the sketch. The defendants admit that the property on the Western side of the plaint schedule property is in the possession of Kandankoran Antony and Devassy Anthony. Regarding the title to the plaintiff she does not know whether the plaintiff has title to the property under certificate of purchase. Certificate of purchase is conclusive proof of title and possession. Ext. B2 is the sale deed executed in favour of Kochanthony by the plaintiff on 24.10.1979. The sale deed Ext.B2 in favour of Kochanthony has been produced by the defendant. From this, it is clear that the property, namely, 6 cents of land sold in favour of Kochanthony is a portion of the property belonging to the plaintiff. She also admits that she has no right or possession over the property comprised in Sy.No.1951/4. Her property is comprised in Sy.No.1051/3. The defendants claim property under Ext.X1 sale certificate which takes in 63 3/4 cents of property comprised in Sy.No.1051/3. The second defendant was examined as DW1. She could not explain as to what happened to the remaining extent as she claims possession only over 32 cents. The Commissioner has seen boundaries on all the four sides of the property. The defendants claim property under Ext.X1 sale certificate which takes in 63 3/4 cents of property comprised in Sy.No.1051/3. The second defendant was examined as DW1. She could not explain as to what happened to the remaining extent as she claims possession only over 32 cents. The Commissioner has seen boundaries on all the four sides of the property. He has taken dandu measurements of the property within the boundaries mentioned in the plaint. On calculation of the measurements, the extent comes to 26 cents. 10. The defendants filed objections to the commission report and sketch. The Commissioner has also identified the property by boundaries. It is submitted for the respondents that when there is dispute regarding the identity of the property, the property has to be located with the help of survey plan and as the same was not done, the plaintiff has to be non suited. The Commissioner has shown the property as described in the plaint. The plaintiff has also shown that a portion of the plaintiff's property, which was transferred in favour of Kochanthony is in his possession. The defendants did not claim any property comprised in Sy.No.1051/4. 11. Admittedly, the eastern boundary of the plaint schedule property is an Edavazhi. The Commissioner has visited the property without notice to the respondent. But the defendants filed objections to the commission report and the Commissioner was examined as DW3. Nothing was brought out in cross examination to discredit his testimony. Therefore, the Commissioner's report has to be accepted and hence the trial court accepted the commission report. Ext.A1 and the certificate of purchase Ext.A4 prove the plaintiff's title. The plaintiff has proved that the property is surrounded by boundaries. To prove that the plaintiff is in possession of the plaint schedule property the plaintiff herself was examined as PW1. She has also examined PW2. PW2 is the father of Kochanthony. He has deposed that his son Kochanthony has purchased 6 cents of property from the plaintiff and that he is in possession of the said property. According to him, property on the west and south of the said 6 cents is in the possession of the plaintiff. He has also deposed that 10 cents of property on the south of the said property has been conveyed to Sankaran. He also admits that there is a building in the property of Kochanthony. According to him, property on the west and south of the said 6 cents is in the possession of the plaintiff. He has also deposed that 10 cents of property on the south of the said property has been conveyed to Sankaran. He also admits that there is a building in the property of Kochanthony. According to him, the western property of the plaint schedule item is in the possession and enjoyment of Devassy and Kandankoran Anthony. The Commissioner has also noted that the western property belongs to Kandankoran Anthony. PW2 has denied the first defendant's possession over the property. There is nothing to discredit his testimony. Thus, the plaintiff has proved that she is in possession and enjoyment of 26 cents of land within the boundaries mentioned in the plaint. Therefore, she is entitled to get a decree of permanent injunction as prayed for. 12. When the Commissioner has located the plaint schedule property with reference to the boundaries in the document, the defendants could have applied for a commission to ascertain whether the said property is comprised in Sy.No.1051/4 or 1051/3. That was not done. To prove possession, the second defendant herself was examined as PW1 and examined two witnesses DW2 and DW3. DW2 had deposed that the kudikidappu right of the defendant's predecessor Krishnan Nambiar is on the eastern side of the Edavazhy and the Edavazhy has now been converted into a road. He would state that the property on the western side of the Edavazhy is also in possession of the defendants. But, in cross examination he admits that he has not entered the plaint schedule property either before or after the Commissioner's visit to the property. He does not know who has transferred the property in favour of Kochanthony. He has also admitted that he has no necessity to enquire as to whether the plaintiff has title or possession over the plaint schedule property. Therefore, the evidence of DW2 is of no use to prove the defendant's case. Since the plaintiff has proved that she is in possession and enjoyment of the plaint schedule property, she is entitled to get a decree. The lower Appellate Authority has gone wrong in dismissing the suit. Therefore, the evidence of DW2 is of no use to prove the defendant's case. Since the plaintiff has proved that she is in possession and enjoyment of the plaint schedule property, she is entitled to get a decree. The lower Appellate Authority has gone wrong in dismissing the suit. Since the plaintiff has established his case, the burden is on the defendants to establish that the property claimed by the plaintiff is the one comprised in another survey number belonging to the defendants. In the result, this appeal is allowed and the decree and judgment of the First Appellate Authority is set aside and the decree and judgment of the trial court are restored. No costs.