Kerala High Court
Valiya Kamrath Krishna Poduval vs Kadavath Puthalath Kammara Poduval on 2 April, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934
RSA.No. 883 of 2011 ( )
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AS.63/1999 of SUB COURT, PAYYANNUR
OS.18/1996 of MUNSIFF COURT, PAYYANNUR
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APPELLANT/APPELLANTS/DEFENDANTS:
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1. VALIYA KAMRATH KRISHNA PODUVAL,
AGED 70 YEARS, S/O.KUNHIKANNA PODUVAL
PANAPPUZHA AMSOM, DESOM - 670 306.
2. NARAYANA PODUVAL,
AGED 57 YEARS, S/O.KUNHIKKANNA PODUVAL, TEACHER
KAITHAPRAM, MATHAMANGALAM P.O, PANAPUZHA AMSOM
DESOM 670 306.
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENT/RESPONDENT/PLAINTIFF:
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KADAVATH PUTHALATH KAMMARA PODUVAL
AGED 85 YEARS, S/O.KUNHAMBU PODUVAL
PANAPPUZHA AMSOM, KAITHAPRAM DESOM
MATHAMANGALAM P.O, KANNUR DISTRICT - 670 306.
BY ADV. SRI.MAHESH V RAMAKRISHNAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 02-04-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
svS
THOMAS P. JOSEPH, J.
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R.S.A. No.883 of 2011
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Dated this the 2nd day of April, 2012.
JUDGMENT
Respondent to whom notice before admission was issued, appears through counsel.
2. The second appeal arises from the judgment and decree of learned Munsiff, Payyannur in O.S.No.18 of 1996 granting decree for prohibitory injunction while refusing the prayer for recovery of damages which was confirmed by the learned Sub Judge, Payyannur in A.S.No.63 of 1999.
3. Respondent/plaintiff claimed that the suit property, stated in the plaint schedule, originally as one acre and later amended as 89 cents pursuant to Exts.C2 and C3, report and plan belonged to Nelliyodu Mana in jenm and while so, there was an oral entrustment of the said property to the respondent in the year, 1950 on kuzhikanam right. Respondent purchased jenm right in S.M.Proceedings No.139 of 1988 as per Ext.A2, order (Ext.A1 is the purchase certificate). Property on the east belonged to Kunhikanna Poduval, father of appellants/defendants. Apprehending trespass, respondent filed the suit for a decree for prohibitory injunction. When the suit was pending in the trial court, respondent amended the plaint alleging that after the institution of suit there was a trespass by the appellants in violation of the order of injunction, collected yield and thus caused loss of `5,000/- to the respondent. He therefore incorporated a RSA No.883/2011 2 prayer for recovery of damages as well.
4. Appellants contended that their father, Kunhikanna Poduval obtained 2.25 Acres in R.S.No.82/5 as per registered lease deed No.158 of 1962. He was also in possession of 1.50 Acres in R.S.No.52/3A of Panappuzha Village as per oral lease from Nelliyodu Mana and purchased jenm right over the said 1.50 Acres as per Ext.B3, purchase certificate in the year, 1976. Appellants denied that respondent is in possession of the suit property.
5. Trial court accepted the claim of respondent that he is in possession of the suit property and granted a decree for injunction while the prayer for damages was disallowed. That, on appeal by the appellants was confirmed by the learned Sub Judge in A.S.No.63 of 1999. Hence the Second Appeal.
6. Learned counsel for appellants has contended that description of boundary of the suit property in Ext.A1 and plaint schedule does not tally with the description given in Ext.C2. It is contended that a perusal of Ext.B1 would show that the claim being made by the respondent is with respect to the property referred to in Ext.B1 and situated in Kadannappilly Village. It is also contended by the learned counsel that no attempt was made to measure the properties with reference to Ext.B3, purchase certificate which is prior on point of time. According to the learned counsel the lie of property shown in Exts.C2 and C4 as belonging to the appellants also do not tally. In the circumstances, finding of courts below regarding possession is not correct and at any rate a remand of RSA No.883/2011 3 the case is required to facilitate measurement of property with reference to Ext.B3, as well.
7. Learned counsel for respondent contended that Ext.B1 has nothing to do with Ext.A2, order and Ext.A1, purchase certificate in S.M.Proceedings No.139 of 1988. According to the learned counsel, Ext.B1 concerns property on the immediate south of the suit property which is comprised in R.S.No.83/1 of Kadannappilly Village. It is pointed by the learned counsel that with respect to Ex.B1, respondent has obtained Ext.A4, purchase certificate. It is also contended by the learned counsel that Ext.B3, purchase certificate was produced only at the fag end of proceeding in the trial court and there was no request to the Advocate Commissioner and Surveyor to measure the property covered by Ext.B3.
8. In Ext.A1, purchase certificate dated 03.08.1988 in S.M.P. No.139 of 1988, what is assigned to the respondent is jenm right over one Acre in R.S.No.52/3A of Panappuzha Village bounded by property of V.K.Kunhikanna Poduval on the west, road on the north, property of P.P.Kunhikanna Poduval (father of appellants) on the east and property in the possession of Kammara Poduval (respondent) on the south. Advocate Commissioner (CW1) has reported that on the eastern boundary of the suit property (covered by Ext.A1) there is a stone wall the oldness of which is about 60 years and has height of about one metre with some old plants planted over it. Advocate Commissioner also stated that as CW1. Ext.C2 is only an eye sketch prepared by him. RSA No.883/2011 4 Property on the further east of the suit property as shown in Exts.C2 and C4 is the property belonging to the appellants as per Ext.B3, purchase certificate of the year, 1976. Advocate Commissioner also stated that plot-A marked in Ext.C4 (suit property as per Ext.A1) and property on the south (which according to the respondent is covered by Exts.B1 and A4) lies contiguous with a common boundary. Advocate Commissioner has marked a plot towards north-western portion of plot-A (suit property) since one Karthyayani Amma made some claim over that portion of the property.
9. Ext.B1 is the Marupatt executed by the jenmi concerning one Acre. Ext.A4, purchase certificate is in respect of property covered by Ext.B1. It is seen from Ext.A4 that the said certificate was issued in proceedings No.2801 of 1976 in relation to one Acre in R.S.No.83/1 of Kadannappilly Village. It is relevant to note that in Ext.A4, purchase certificate dated December, 1976, the northern boundary is described as property in the possession of the tenant (respondent). Thus, it would appear from Ext.A4 that even as on the day Ext.A4, certificate was issued, property on the north of Ext.A4, property was in the possession of respondent (ie., the suit property).
10. Ext.B1 cannot be connected with the suit property since the suit property is comprised in R.S.No.52/3A of Panappuzha Village and Ext.B1 concerns property comprised in R.S.No.83/1 of Kadannappilly Village.
11. So far as contention raised by the appellant as to the discrepancy regarding boundaries is concerned, what is pointed out by the learned counsel RSA No.883/2011 5 is that in Ext.A1 and plaint schedule the western boundary is described as that of Kunhirama Poduval while in Ext.C2, it is shown as property in the possession of Kunhikanna Poduval. Respondent produced Exts.A5 and A6 to show that property on the east of western property is the suit property belonging to and in his possession. Learned counsel for appellants would contend that eastern boundary description in Exts.A5 and A6 concerns property covered by Ext.B1.
12. Assuming that the person in possession of property on the west of the suit property is stated in Ext.A1 is Kunhirama Poduval while in Ext.C2 it is Kunhikanna Poduval, that does not in any way affect identification of the property by the Advocate Commissioner and Surveyor. For, in Ext.A1 the property is described as bounded by road on the north, property belonging to the father of appellants on the east and, the property belonging to the respondent on the south. These boundaries are correctly identified and located by the Advocate Commissioner and Surveyor.
13. The Advocate Commissioner after measurement of property with the assistance of Surveyor and with reference to Ext.A1 has identified the suit property. Now the complaint is that for such measurement Ext.B3 was not made use of. But, there is no case for appellants that Ext.B3 was produced before the Advocate Commissioner when he measured the property. Nor was there any request in the trial court to measure the property with reference to Ext.B3. Therefore, at this belated stage the contention that properties are not measured and identified with reference to Ext.B3 cannot be entertained. It is also relevant RSA No.883/2011 6 to note the physical boundary between the suit property and the property on the east which belongs to the appellants for which they have obtained purchase certificate. Commissioner noticed a stone wall (boundary) about 60 years old, having height of about one metre with old plants planted over that stone wall. If the suit property and eastern property belonged to and were in the possession of the same person, such a boundary would not possibly be there. That boundary indicates separate possession and enjoyment.
14. Trial court found on a consideration of the evidence that the suit property is covered by Ext.A1, purchase certificate. The finding is confirmed by the first appellate court. In that view of the matter I am not persuaded to think that there is any substantial question of law involved in the matter.
Second Appeal is dismissed.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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