A. Devaki And Ors vs U.K. Kunhiraman And Ors

The defendants in OS No.52/2013 of the Court of the Munsiff, Hosdurg (Trial Court) are the appellants in this Regular Second Appeal. The plaintiff

in the suit is the respondent in this appeal. The parties are, for the sake of convenience, referred to as per their status in the Original Suit.

The respondent had filed the suit seeking a decree of permanent prohibitory injunction to restrain the defendants and their men from trespassing into

the plaint schedule property or interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.

The averments in the plaint in a nutshell are:

The plaint schedule property belonged to the parents of the plaintiff, who executed a Will bequeathing the properties in favour of the plaintiff. After

the death of the plaintiff's parents, the plaint schedule property devolved on the plaintiff and others. The plaintiff has been paying land tax to the

Government for five cents of land. The plaintiff has been in peaceful possession and enjoyment of the plaint schedule property since the death of his

father. He has demarcated the boundaries of the plaint schedule property on all four sides in the year 1981. The defendants, who are residing near the

plaint schedule property, demanded a road through the plaint schedule property. As the plaintiff was not ready to consider the defendants' demand,

they nurtured enmity towards him. On 27.1.2013, the defendants and their men attempted to trespass into the plaint schedule property by removing the

boundary stones and taking possession of the plaint schedule property. Hence, the suit.

The defendants filed a written-statement, inter alia, contending that it is not possible to identify the plaint schedule property as per the description in

the plaint. The plaint schedule property has never been in the possession of the plaintiff as alleged. The defendants are the wife and son of the brother

of the plaintiff. It is true that the plaint schedule property has devolved on the plaintiff as per the Will executed by his parents, but the plaintiff has not

got title or possession of the plaint schedule property. There is no property as described in the plaint. There is one cent of land in between the

defendants' property and property of one Kunjikrishnan. The plaintiff has no possession over the said one cent of land. The cause of action alleged in

the plaint is incorrect. Hence, the suit may be dismissed.

The plaintiff and five other witnesses were examined as PWs 1 to 6 and Exts A1 to A6 were marked through them. Exts C1 to C4 were marked as

Court Exhibits and Exts.X1 and X1(a) were marked as third party exhibits.

The Trial Court after considering the pleadings+ and materials on record, dismissed the suit by holding that the plaintiff had failed to prove that he

was having valid possession and enjoyment of the property.

The plaintiff preferred AS No.15 of 2019 before the Court of the Subordinate Judge, Hosdurg. The Lower Appellate Court after reappreciating the

pleadings and materials on record, set aside the judgment and decree of the Trial Court and decreed the suit as prayed for.

Aggrieved by the judgment and decree of the Lower Appellate Court, the defendants have preferred this Second Appeal raising the following

substantial questions of law:

Whether the court below went wrong in not holding that the valuation of the suit and the court fee paid is insufficient in view of section

27(a) of Kerala Court Fees and Suit Valuation Act.

Are not the courts below went wrong in proceeding with the suit without directing the plaintiff to pay court fee under section 27(a) of

Kerala Court Fees and Suit Valuation Act, when the defendants denied title of the plaintiff to the plaint schedule property and court has

framed an issue of title of the plaintiff to the plaint schedule property.

In the light of the evidence and inconsistency in survey number and extent of the property, is not the finding of the court below regarding

possession of the plaint schedule property is perverse.

Heard Sri.C.Muralikrishnan, the learned counsel appearing for the appellants.

The substantial questions of law 1 and 2 pertain to the valuation of the suit for the payment of court-fee and jurisdiction.

The Trial Court had formulated issue No.1 on the question of the valuation of the plaint for the purpose of payment of court-fee and jurisdiction.

The Trial Court has dealt with the said issue, in paragraph 9 of the judgment, which was answered against the defendants. The Trial Court held that

the defendants have not adduced any evidence to prove regarding the valuation of the plaint and payment of court-fee, and have not cross-examined

the plaintiff on the said issue. In paragraph 11 of the judgment also, the Trial Court held that the plaintiff was not obliged to pay court-fee as

prescribed under Sec.27(a) of the Kerala Court-Fees and Suits Valuation Act, as no relief was sought for regarding the title of the plaintiff over the

plaint schedule property.

Admittedly, the defendants have not challenged the finding of the Trial Court by filing an appeal. Therefore, the Lower Appellate Court was not

called upon to consider the issue with regard to valuation, which has become final and conclusive. Thus, the defendants are estopped from raising the

question regarding the valuation of the plaint, as substantial questions of law. Hence, I am of the definite opinion that the said question cannot be raised

before this Court in the second appeal. Hence, I decline to admit the second appeal on the substantial questions of law 1 and 2.

Now coming to substantial question of law No.3.

The Lower Appellate Court, on a reappreciaton of the pleadings and materials on record, has found that the plaintiff to be in possession of the

plaint schedule property as per Exts.A1 (purchase certificate) and A2 (Will).

It is pertinent to take note of the fact that both the plaintiff and the defendants have claimed title over their respective properties on the strength of

Exts A1 and A2. Hence, the defendants cannot be permitted to contend that only they have title over their property and the plaintiff has no title over

the plaint schedule property based on the very same title deeds, as rightly found by the lower Appellate Court. Moreover, the defendants have not

mounted the box or produced any scrap of paper to substantiate their defence, which is fatal.

It is trite law that, in a suit for injunction simplicitor only possession needs to be proved by the plaintiff. Merely by asserting that the plaintiff has no

title or possession of the property, the defendants cannot substantiate their defence. Likewise, plaintiff has produced and proved Exts A1 to A6, got

the property identified by PW4 the Advocate Commissioner as per Exts. C1 to C4 reports, and also examined PW5 and PW6 and got Exts X1 and

X1(a) marked in evidence, to prove his possession over the plaint schedule property.

It was on the strength of the above oral and documentary evidence that the Lower Appellate Court found the plaintiff to be in possession of the

plaint schedule property, and consequently decreed the suit. The above finding of the Lower Appellate Court is a pure question of fact.

I do not find any ground to admit the second appeal as no question of law is involved in this second appeal, much less any substantial question of law.

The appeal fails and is accordingly dismissed.