Kerala High Court
Mundayadan Koroth Meenakshi Amma vs Palakkal Meethala Veetil Balakrishnan ... on 11 January, 2022
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
RSA NO. 990 OF 2008
AGAINST THE DECREE AND JUDGMENT DATED 11.06.2008 IN AS 2/2005
OF PRINCIPAL SUB COURT, THALASSERY
AGAINST THE DECREE AND JUDGMENT DATED 31.03.2004 IN OS
467/2000 OF PRINCIPAL MUNSIFF COURT ,KANNUR
APPELLANT/APPELLANT/DEFENDANT:
1 MUNDAYADAN KOROTH MEENAKSHI AMMA
W/O.RAMADAS, NEAR GOVERNMENT HOSPITAL,,
TALIPARAMBA, KARIMBAM.P.O,KANNUR.
2 MUNDAYADAN KOROTH LEELA, W/O.LATE CKC
NAMBIAR, RESIDING DO
3 MUNDAYADAN KOROTH PURUSHOTHAMAN
S/O.KUNHAMBU NAMBIAR, SCHOOL MASTER, KAIRALAM
AMSOM, IRUVAPUZHA NAMBRAM DESOM, PAVANNOOR MOTTA.,
PO, KANNUR.
BY ADV SRI.CIBI THOMAS
RESPONDENT/RESPONDENT/PLAINTIFF:
PALAKKAL MEETHALA VEETTIL BALAKRISHNAN
NAMBIAR, S/O.NARAYANI, RETIRED DEPUTY NAZIR,
KANDAKKAI AMSOM, IRIVAPPUZHA NAMBRM DESOM,
KANNUR.
BY ADVS.
SMT.K.K.CHANDRALEKHA
SRI.GOPAKUMAR G. ALUVA
SRI.K.C.SANTHOSHKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON
11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO.990 of 2008
2
K.BABU, J.
-------------------------------------------
R.S.A. No.990 of 2008
---------------------------------------------
Dated this the 11th day of January, 2022
JUDGMENT
The defendants in O.S.No.467/2000 on the file of the Munsiff's Court, Kannur, are the appellants. The plaintiff is the respondent.
2. Material facts relevant for the adjudication of this appeal are briefly narrated below:
2.1. The plaint schedule property is 1 Acre 50 cents of land in Sy.No.14 of Kayaralam village. According to the plaintiff, he is the absolute owner in possession of this property. The property has well-
defined boundaries on all sides. The defendants are the owners in possession of the property on the immediate south and west of the plaint schedule property. The defendants trespassed upon the plaint schedule property on its southern side. They excavated laterite stones from the encroached portion. The plaintiff suffered an estimated loss to the tune of Rs.29,725/-.
2.2. The plaintiff prayed for a decree of mandatory injunction directing the defendants to restore the plaint schedule property to its RSA NO.990 of 2008 3 original position and for a permanent prohibitory injunction to restrain the defendants from further encroaching upon the plaint schedule property. Alternatively, the plaintiff prayed for compensation of Rs.29,725/- from the defendants.
2.3. The defendants resisted the suit. According to the defendants, the plaintiff has no title and possession over the entire plaint schedule property. There is a lane in between the plaint schedule property and the defendants' property. The boundary of plaintiff's property is the northern mud wall of the lane. The defendants never encroached upon the property of the plaintiff and excavated laterite stones as pleaded.
3. The parties went to trial. PW1 was examined and Exts. A1 to A5 were marked on the side of the plaintiff. DW1 was examined, and Exts. B1 to B5 were marked on the side of the defendants. Exts.C1 to C4 were marked as Court Exhibits.
4. The Trial Court decreed the suit, granting a sum of Rs.6,000/- with 6% interest as compensation to the plaintiff. The Trial Court also granted a permanent prohibitory injunction restraining the defendants from further encroaching upon the plaint schedule property.
5. The defendants challenged the decree and judgment of the Trial Court by filing A.S.No.2/2005 before the Subordinate Judges' RSA NO.990 of 2008 4 Court, Thalassery. The First Appellate Court confirmed the decree and judgment of the Trial Court.
6. The defendants are in appeal before this Court invoking Section 100 of CPC.
7. On 02.06.2009, this Court admitted the appeal and formulated the following substantial questions of law:-
"1. Whether the Courts below are correct in law in decreeing the suit for an injunction without identifying the property, especially in view of the fact that the Commissioner himself had stated that he could not identify the property.
2. Whether the Courts below are correct in law in decreeing a suit for an injunction in view of the fact that neither the plaint nor any of the title deeds produced by the plaintiff contain specific boundaries on the western and southern sides of the property where the alleged encroachment is made.
3. Whether the Courts below are correct in law in holding that the plaintiff is entitled to get 1.50 acres of property overlooking the fact that as per Ext.B4 document, the assignor of the plaintiff is having right only over an extent of 1.23 acres of property.
4. Whether the Courts below are correct in overlooking the settled position of law that in a suit for injunction possession is of paramount importance and in the present case, the plaintiff miserably failed to establish RSA NO.990 of 2008 5 possession over the entire plaint schedule property.
5. Whether the Courts below are correct in law in admitting Exts.C1 and C3 reports wherein calculations are made in an entirely wrong way and holding that the defendants made encroachment during the pendency of the order of temporary injunction."
8. Heard Sri.Cibi Thomas, the learned counsel for the appellants/defendants and Sri.K.C.Santhosh Kumar, the learned counsel for the respondent/plaintiff.
9. The learned counsel for the appellants contended that the Courts below grossly erred in granting the relief of injunction and compensation for the alleged loss suffered by the plaintiff without identifying the plaint schedule property. It is also contended that the plaintiff failed to establish that he was in possession of the entire property scheduled in the plaint. The learned counsel for the appellants/defendants further contended that the Courts below misconstrued the evidence in holding that the plaintiff is in possession of the entire plaint schedule property and blindly relied on the reports of the Commissioner to record the finding regarding the possession of the plaint schedule property by the plaintiff.
10. Per contra, the learned counsel for the respondent/plaintiff would contend that the plaintiff could establish title and possession RSA NO.990 of 2008 6 over the entire plaint schedule property. The learned counsel submitted that the Trial Court and the First Appellate Court, relying on acceptable evidence, recorded that the plaintiff is in exclusive possession of the plaint schedule property and the Courts below rightly identified the encroached portion based on the pleadings and evidence.
11. The learned counsel for the appellants/defendants submitted that in Ext.C3 - report, the Commissioner has specifically stated that he could not identify the property as directed by the Court and hence the Courts below were not justified in placing reliance on Ext.C3 to record the finding that the plaintiff was in possession of the entire plaint schedule property.
12. The learned counsel for the respondent/plaintiff would contend that the reference of the Commissioner in Ext.C3 regarding the non-identification of the property is only with respect to the defendants' property, and reading of Ext.C3 would specifically show that the Commissioner has identified the plaint schedule property and he failed to identify the defendants' property as the required title deed had not been placed to the Commissioner. The plaintiff pleaded that he is in exclusive possession of 1 Acre 50 cents of land, the plaint schedule property. He acquired title to the plaint schedule property as per Ext.A3 Jenmom Deed. Ext.A4 series are the basic tax RSA NO.990 of 2008 7 receipts showing payment of land tax in respect of 1 acre 50 cents of land by the plaintiff.
13. Relying on Ext.B4, a Marupattam of the year 1931, the title deed by which the predecessor-in-interest of the plaintiff acquired possession of the property, the defendants challenged the claim of the plaintiff that he had possession over the entire plaint schedule property. Ext.B4 shows that the predecessor-in-interest of the plaintiff had acquired possession over only 1 acre 23 cents of land. Ext.A1 is the purchase certificate issued by the Land Tribunal in favour of the immediate predecessor of the plaintiff. Ext.A1-purchase certificate would show that the immediate predecessor of the plaintiff had been given purchase certificate in respect of 1 acre 50 cents of land and the same had been assigned in favour of the plaintiff by way of Ext.A3 sale deed. Ext.A1-Purchase Certificate has been issued under Section 72 (k) of the Kerala Land Reforms Act. A Purchase Certificate issued under Section 72(k) is a conclusive proof as provided in Section 4 of the Indian Evidence Act, in respect of the contents therein [vide: Ahmmed Kutty v. Mariakutty Umma (2000 (1) KLT 829)].
14. In view of the legal position that emerges from the import of Section 72(k) of the KLR Act, the contention that the plaintiff had not obtained title over the entire extent of the plaint schedule RSA NO.990 of 2008 8 property cannot be sustained, as the defendants have no case that any fraud has been played in obtaining Ext.A1 purchase certificate. The Courts below rightly held that the plaintiff acquired the title of 1 acre 50 cents of land. The challenge on this finding relying on Ext.B4 document will not stand.
15. In Ext.C3 report, the Commissioner has specifically identified the plaint schedule property. He has identified the portion of the plaint schedule property over which the defendants trespassed upon and excavated laterite stones. In Ext.C3, the Commissioner has specifically stated that an extent of 0.01 acre is identified as the portion of the plaint schedule property over which the defendants encroached upon. In Ext.C4, the Commissioner has identified ABCG as the encroached portion. The learned counsel for the appellants/defendants contended that the Courts below relied on the reports of the Commissioner alone to enter into a finding that the plaintiff is in exclusive possession of the entire plaint schedule property. The Trial Court, relying on the pleadings and oral evidence of PW1, the title deeds and Exts.C1 to C4 reports of the Commissioner, and Exts.A1 to A5 documents, recorded the specific finding that the plaint schedule property is identifiable and the plaintiff is in possession of the property. The First Appellate Court, re- appreciated the entire evidence and confirmed the findings of the RSA NO.990 of 2008 9 Trial Court.
16. This Court finds no reason to interfere with the findings of the Trial Court and the First Appellate Court to the effect that the plaint schedule property is identifiable and the plaintiff is in exclusive possession and enjoyment of the same.
17. The specific case of the plaintiff is that the defendants encroached upon the plaint schedule property and excavated laterite stones from it. DW1-defendant No.3, admitted that the defendants had excavated laterite stones from the property. The contention of the defendants that they excavated laterite stones from their property was negatived by the Trial Court and the First Appellate Court. This Court finds no reason to interfere with that finding. The case of the plaintiff is that he apprehends further encroachment upon the plaint schedule property. The plaintiff has established the requirements for getting a prohibitory injunction against the defendants. The Courts below were justified in granting the decree of prohibitory injunction in favour of the plaintiff.
18. The Courts below held that the plaintiff is entitled to a sum of Rs.6,000/- as compensation from the defendants due to the loss sustained by the plaintiff from the acts of encroachment and the excavation of laterite stones from the plaint schedule property. Relying on the report of the Commissioner, the Courts below found RSA NO.990 of 2008 10 that 3,000 laterite stones were excavated from the plaint schedule property, and the defendants were directed to pay a sum of Rs.6,000/- as compensation with 6% interest from the date of suit till realization.
19. The learned counsel for the appellants submitted that the rate of interest awarded by the Court below is exorbitant.
20. This Court is of the view that granting of 3% interest per annum from the date of suit till realization will meet the ends of justice.
The Regular Second Appeal is partly allowed. The decree granting a permanent prohibitory injunction against the defendants is confirmed. The decree granting compensation of Rs.6,000/- is also confirmed, and the interest awarded is modified as 3% per annum from the date of suit till realization. The parties are directed to bear their respective costs.
Sd/-
K.BABU JUDGE VPK