The court confirmed that secondary evidence is admissible in property disputes and reaffirmed the authority of lower courts' factual determinations.

J U D G M E N T

This appeal is directed against the judgment and decree dtd.23.3.2020 in A.S.No. 76/2011 on the file of the Sub Court, Cherthala (hereinafter referred to as 'the first appellate court')arising from the judgment and decree dated 29.8.2011 in O.S.No.200/2008 on the file of the Addl.Munsiff's Court, Cherthala (hereinafter referred to as 'the trial court').

2. The appellants in this appeal are the defendants and the respondents herein are the legal heirs of the plaintiff, who are the additional respondents in A.S. For brevity, the parties shall be referred to as referred in the original suit.

3. The suit is for permanent prohibitory injunction restraining the defendants or anybody under them from trespassing upon or interfering with the peaceful enjoyment of plaint schedule item No.1 property and also for a decree of mandatory injunction directing the defendants to remove plaint schedule item No.2 and in case of failure, the same is sought to be removed through the process of court.

4. The plaint averments in brief are hereinbelow:-

The plaint schedule item No.1 along with a larger extent of property originally belong to the family of the plaintiff by virtue of the partition deed No.3676/1954. 'A' schedule items therein in the aforesaid partition deed are set apart to the share of the plaintiff. 'A' schedule item No.2 in the partition deed was having an extent of 31 cents. Out of the above, ten cents of property was given to Bhargavi, who is the mother of the defendants and the wife of late Krishnan as kudikidappukari. The remaining extent of 21 cents is in the possession and enjoyment of the plaintiff and is scheduled as item No.1. The defendants, who are successors of late Bhargavi, are now raising frivolous contentions over the plaint schedule item No.1 property. They have succeeded in putting up a structure in the plaint schedule property item No.1, which is scheduled as plaint schedule property item No.2. Hence, the suit.

5. In the written statement filed, the first defendant contended that the predecessor-in-interest of the plaintiff was having no manner of right over the property. They have denied the title of the plaintiff over an extent of 21 cents of land. It is their contention that a serpent grove is situated in the plaint schedule item No.1 property. According to them, the defendants have been maintaining the serpent grove and adjacent pond in plaint schedule item No.1 property. They would contend that plaint schedule item No.2 property has been in existence from time immemorial.

6. During the trial of the case, PW1 was examined and marked Exts.A1 to A3 on plaintiff's side. DW1 was examined on the defendants' side and no documentary evidence was marked. Exts.C1 to C2(a) were also marked.

7. After having heard both sides, the trial court entered a finding that the defendants unauthorisedly trespassed into the plaint schedule item No.2 property and erected structures therein. Hence, the trial court granted a decree for mandatory injunction directing the defendants to remove the structures in plaint schedule item No.2 property. Consequential permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule item No.1 property was also granted. Challenging the judgment and decree, the defendants carried the matter in appeal. The appellate court dismissed the appeal confirming the judgment and decree of the trial court. Hence,this Second Appeal.

8. Heard learned counsel for the appellant Sri.Darsan Somanath and the learned counsel for the respondents Sri.Martin Jose.

9. Learned counsel for the appellants contended that both the trial court and the appellate court went wrong in accepting the copy of the partition deed as evidenced in the suit. According to the learned counsel, when secondary evidence relating to a document is admissible only if primary evidence is not readily available with the party. The learned counsel submitted that the respondents or their predecessors have t