The defeated first defendant is the appellant herein.
2. The plaintiffs filed the suit, in O.S.No.50 of 2003, before the learned Additional District Munsif, Padmanabhapuram, seeking the relief of permanent injunction.
3. After contest, the learned Additional District Munsif, Padmanabhapuram, by Judgment and Decree, dated 21.06.2004, dismissed the suit.
4. Aggrieved by the Judgment and Decree passed by the learned Additional District Munsif, Padmanabhapuram, the plaintiffs preferred an appeal, in A.S.No.88 of 2004, before the learned Additional Subordinate Judge, Padmanabhapuram.
5. After contest, the learned Additional Subordinate Judge, Padmanabhapuram, by Judgment and Decree, dated 26.07.2005, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit.
6. Challenging the correctness of the Judgment and Decree passed by the learned Additional Subordinate Judge, Padmanabhapuram, the defeated defendant has preferred the present second appeal.
7. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The suit property originally belonged to the wife of the first plaintiff and mother the plaintiffs 2 and 3, namely, Louis Helan. She had purchased the same, on 08.06.1987, for valuable consideration and she was enjoying the same as absolute owner. The property has got a well defined boundaries on all four sides. Originally, it is a paddy field. She has got Patta and paid tax to the Government. Separate re-survey No.509/7 of Attoor Village was assigned to the property. While so, the original owner Louis Helan died intestate on 21.09.2001 leaving behind the plaintiffs as legal heirs. During her lifetime, she planted coconut trees. As stated supra, except the plaintiffs, nobody else has got any right or possession over the suit property. The defendant is residing in the adjoining northern puramboke land in a shed put up by her. She has no right or possession over the suit property. Whileso, the defendant made an attempt to trespass into the suit property by force and made an attempt to commit waste in the suit property by way of cutting down the coconut leaves with the help of rowdies on 21.02.2003. But, because of the timely intervention of the plaintiffs, the defendant's illegal attempts was thwarted. But, the threat of further attempt subsists. The acts of the defendant is high handed, illegal and she has no right to do so and it should be restrained by a decree of permanent injunction otherwise, the plaintiffs will be put to irreparable loss and injury. The cause of action for the suit arose on 08.06.1986 being the date of sale deed in favour of the original owner on 21.09.2001 being the date of death of original owner on 21.02.2003 being the date of attempt of trespass and the same arose at Attoor Village.
8. The brief averments of the written statement filed by the defendant that are necessary to decide this appeal are as follows:
The defendant is a poor illiterate coolie residing with her husband and mother with two sons in puramboke land adjoining to the newly purchased 1 ? Cents in R.S.No.509/07 of Attoor Village. She has purchased 1 ? Cents of property in R.S.No.509/7 corresponding to old survey No.3335 of Attoor Village from Thanka Joy alias Thaka Bai, daughter of Ponnu for a valid consideration amount of Rs.5,032/-, under a sale deed, dated 02.05.2000, registered as document No.752 of 2000, on the file of Verkilambi Sub- Registrar's Office and at the time of execution of the sale deed, one Johnrose, son of Thompson and Ponnu Nadar, son of Kochan Nadar were the attesting witnesses to the document and the above said 1 ? Cents of property is having well defined boundaries and in the said properties, five coconut trees and a palm tree is standing therein. After the date of purchase, she is in peaceful possession and enjoyment of the property. Patta No.231 stands in the name of the defendant and she has paid the revenue tax for the said property for the fasli year 1417. She has not committed any waste or cutting coconut leaves on 21.02.2003 or at any point of time in the suit property. The plaintiffs are having only 17 ? Cents in R.S.No.590/7. They have fraudulently obtained an ex parte injunction against the defendant by suppressing the material facts without any cause of action and bonafide intention. The plaintiffs have no cause of action to seek the relief of permanent injunction against the defendant. No such cause of action arose on 21.02.2003 or any other date. There is no prima facie case and the balance of convenience is in favour of the defendant.
9. Based upon the above pleadings, the Trial Court had framed three issues for consideration.
10. On the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A11 were marked and on the defendant side, D.Ws.1 and 2 were examined and Exs.B1 to B14 were marked.
11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs have not proved their case and hence dismissed the suit.
12. As stated supra, aggrieved by the Judgment and Decree of the learned Additional District Munsif, Padmanabhapuram, the first defendant preferred first appeal in A.S.No.88 of 2004, before the learned Additional Subordinate Judge, Padmanabhapuram and the learned First Appellate Judge, on re- appreciation of the evidence both oral and documentary, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit.
13. At the time of admission, the following substantial questions of law were framed for consideration:
(i) Whether the lower appellate Court is right in not deciding the title of the suit property, when the disputes among the parties are as to title? and
(ii) Whether the appellate court is right in rejecting Ex.B6 Patta issued in favour of the defendants, when it was not related by the plaintiff by adducing evidence as per the law declared in the decision reported in AIR 2002 SC 504?
14. The learned counsel for the appellant made submissions on the lines of the substantial questions of law.
15. The learned counsel for the respondents/plaintiffs made submissions in support of the judgment of the Lower Appellate Court.
16. The suit filed by the respondents/plaintiffs is one for bare injunction against the appellant/defendant from interfering with their peaceful possession and enjoyment of the suit property measuring an extent of 19.375 cents in re-survey No.509/7 in Attoor Village, Kalkulam Taluk in Thiruvettaru of Kanyakumari District.
17. The plaint proceeds on the basis that one Mrs.Louis Helan, wife of the first plaintiff and mother of the second and third plaintiff purchased the suit property by a Sale Deed dated 08.06.1987 and obtained Patta and was enjoying the suit property with specified boundaries and Patta stands in her name and she died on 21.09.2001. Thereafter, the respondents/plaintiffs are enjoying the suit property. While so, the appellant/defendant tried to encroach upon the suit property and hence, the suit.
18. The said claim of the respondents/plaintiffs was resisted by the appellant/defendant on the ground that she is a neighbour of the plaintiffs and she had purchased the land measuring an extent of 1 ? cents in Re-Survey No.509/7 from one Thanka Joy alias Thanka Bai, D/o. Ponnu and obtained Patta in Patta No.231.
19. The respondents/plaintiffs to buttress their pleading marked Ex.A.1-Sale Deed executed by Shantha Bai in favour of Louis Helan and Ex.A.2- Death Certificate of Louis Helan and Ex.A.3-Xerox copy of Legal Heir certificate issued in favour of the respondents/plaintiffs and Patta Pass Book issued in favour of Louis Helan is marked as Ex.A.4 and Land Tax Receipts for the year 1988 and 2002 are Exs.A.5 and A.6 respectively and the predecessor in title and the sale deed in their favour were marked as Exs.A.7, A.8 and A.9, while the Rectification Deed is marked as Ex.A.10. Based upon Exs.A.7 to A.10, A.11-Re-Survey plan of Re-Survey No.509/7 was prepared and the respondents/plaintiffs have purchased various extents of land totaling 19.375 cents which is duly reflected in Ex.A.4.
20. On behalf of the appellant/defendant, she has marked Ex.B.1-Sale Deed in favour of the defendant and Ex.B.6-Patta Pass Book issued to Thanka Bai and Land Tax Receipts are marked as Exs.B.8 and B.9.
21. As stated supra, the suit is for bare injunction. According to the respondents/plaintiffs, they are the sole and absolute owners of the suit property in Re-survey No.509/7 and they are in possession and enjoyment of the same. On the contrary, the appellant/defendant could allege that she has purchased the land to an extent of 1 ? cents from one Thanka Joy @ Thanka Bai and Patta was issued in her favour under Ex.B.6.
22. Considering the nature of the suit viz., the relief of bare injunction, the Lower Appellate Court has proceeded to find who was in possession of the suit property on the date of filing of the suit. The respondents/plaintiffs have specifically contended that Patta under Ex.B.6 issued in favour of the appellant/defendant is a bogus and forgery and it does not contain any endorsement for corrections made therein nor initial or seal contained therein. When the defendant's husband was examined as D.W.1, he was specifically confronted with the corrections found in Ex.B.6-Patta Pass Book and he has specifically admitted that there are corrections in the name viz., the name Thanka Bai was scored off and re-written as Pushpam and there is no endorsement by the competent officer nor Ex.B.6 contains any seal of the Government and further, during the cross-examination, he has categorically admitted that there is no revenue records other than Ex.B.6 and he is not willing to examine any revenue witnesses and summons to substantiate his claim. Further, he is not willing to summon any revenue records from the revenue office to substantiate the same assumes significant. Relying upon various corrections in Ex.B.6 in respect of Patta No.231 wherein the name of Thanga Bai was scored off and encircled and name of Pushpam was inserted and there is no signature and counter signature for effecting the change nor any official signature was affixed to show that Ex.B.6-Patta Pass Book has been subject to mutation of name as projected by the appellant/defendant, D.W.1, in his cross examination, has specifically admitted that the respondents/plaintiffs have put up a compound wall of their property and the property of the defendant lies outside the compound wall. Further, he has admitted in the cross-examination that in respect of the compounded property, the respondents/plaintiffs were enjoyed the property and before that the first plaintiff's wife was in possession and enjoyment of the suit property. Relying upon the admissions made by D.W.1 in the cross- examination, as extracted above and taking note of the aforesaid corrections and endorsement made in Ex.B.6, the Lower Appellate Court has come to the conclusion that Ex.B.6 being tampered with in respect of name and extent and such endorsements were not supported by cross endorsement of the officer and which does not bear any seal and held that Ex.B.6 cannot be relied upon and based upon Ex.B.6-Patta Pass Book and in view of the finding that Ex.B.6 cannot be relied upon, Exs.B.8 and B.9 are no legs to stand to advance the case of the appellant/defendant is just and proper which does not warrant any interference by this Court. Furthermore, in view of the admissions made by D.W.1 in the cross-examination regarding possession and enjoyment of the suit property by the plaintiffs since 1974 and non-production of any other revenue records in support of the defendant and non-examination of any revenue witnesses in support of the appellant/defendant, the Lower Appellate Court has come to the correct conclusion that the plaintiffs are in possession of the suit property while the defendant was not in possession of the suit property and relief sought is only for bare injunction and held that the plaintiffs are entitled to the suit property and accordingly, granted the relief of permanent injunction against the defendant is well considered and well merited does not warrant any interference by this Court and both the substantial questions of law are held against the appellant/defendant and the appeal is devoid of merits and liable to be dismissed.
23. In the result, i] Second Appeal is dismissed with costs.
ii] Judgment and decree in A.S.No.88 of 2004 on the file of the Additional Subordinate Judge, Padmanabhapuram, reversing the decree and judgment in O.S.No.50 of 2003 on the file of the Additional District Munsif, Padmanabhapuram is confirmed.
iii] The suit in O.S.No.50 of 2003 on the file of Additional District Munsif, Padmanabhapuram, is decreed.
iv] The connected miscellaneous petition is closed.
To:
1.The Additional Subordinate Judge, Padmanabhapuram.
2.The Additional District Munsif, Padmanabhapuram..