Albuda Mery v. Krishnaswami Nadar and Augustine

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932** **SA.No. 916 of 1996(A)** **---------------------------** **AS.54/1992 of I ADDL. DISTRICT COURT, PALAKKAD OS.311/1987 of PRL. MUNSIFF COURT, PALAKKAD** **....................** ## **APPELLANT(S):1ST APPELLANT – 1ST DEFENDANT** **-----------------------------------------------------------** **ALBHUDA MERY, W/O. AMBROSE, RESIDING AT NEELIPPARA, ERAVATTAPPARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE ADV. SRI.K.RAMESH** ## **RESPONDENT(S):PLAINTIFF/RESPONDENT & 2ND APPELLANT/ 2ND DEFENDANT** **--------------------------------------------------------------------------** **1. KRISHNASWAMI NADAR, S/O. AMMASIYAPPA NADAR, RESIDING AT MANGALATHAN CHALLA, PUDUSSERY AMSOM, DESOM, PALAKKAD DISTRICT.** **2. AUGUSTINE, S/O. MARIASOOSA, RESIDING AT NEELIPPARA, ERAVATTAPPARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **SRI.V.CHITAMBARESH, SENIOR. ADV. SRI.T.C.SURESH MENON** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 916 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011. ## **JUDGMENT** The disappointed first defendant in O.S. 311 of 1987 before the Munsiff's Court, Palakkad, who suffered concurrent findings against her is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for injunction. It related to 8 cents of property comprised in R.S. No. 1103/4A of Pudussery East Village. The plaintiff claimed that he obtained the property as per Ext.A1 and is in absolute possession and enjoyment of the same. He stated that he is residing in the building situate in the property. Alleging that the defendants have tried to trespass into the property and demolish the building in the suit property, he laid the suit. 3. The defendants resisted the suit. They denied the allegations in the plaint. According to them, the S.A. 916/1996. 2 assignment deed relied on by the plaintiff is a fabricated and concocted document. The property was involved in a suit for partition, ie., O.S. 40 of 1974, in which a receiver had taken possession of the suit property. The defendants contended that the plaint schedule property was originally taken on verumpattom by the first defendant's father-in-law and his brothers from one Subbayya Kounder. Subsequently it devolved on the first defendant. Pointing out that the plaintiff has no manner of possession over the suit property, they prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B6 marked. Exts.C1 to C3 are the commission reports and plan. The commissioner was examined as C.W.1 and Exts.X1 and X1(a) are third party exhibits. S.A. 916/1996. 3 5. On an evaluation of the evidence in the case, the trial court came to the conclusion that the plaintiff has succeeded in proving that he is in possession of the suit property as on the date of suit and therefore he is entitled to the reliefs as prayed for in the suit. A decree in his favour followed. 6. The defendants carried the matter in appeal as A.S. 54 of 1992 before the District Court, Palakkad. The lower appellate court after an independent consideration and evaluation of the evidence concurred with the trial court in its finding and dismissed the appeal. That brings the first defendant before this court. 7. Notice is seen issued on the following questions of law: _“1. Whether the lower court can ignore the basic document Ext.A1 sale deed in deciding the question of possession and ownership of the plaint schedule property especially when the plaintiff admits that Ext.A1 is a sale deed?_ S.A. 916/1996. 4 _2. Whether the decision of the lower appellate court that Ext.A1 is not necessary to decide the question regarding possession and ownership of the plaint schedule property by the plaintiff?_ _3. Whether Ext.A1 sale deed can be treated as a properly executed sale deed when the recitals and the schedule are different regarding the description of the plaint schedule property?_ _4. Whether the courts below can depend other evidences like Ext.B1, X1 and X1A to prove the possession and ownership of the plaintiff without considering the validity of Ext.A1, unregistered sale deed?”_ 8. Learned counsel appearing for the appellant pointed out that after having found that Ext.A1 is a fabricated document, no relief ought to have been granted to the plaintiff. It is also contended that the proprietory right over the property belonged to the appellant and if that be so, even assuming that the plaintiff had possession, that can only be considered as detention and not in actual S.A. 916/1996. 5 possession. Learned counsel placed reliance on the decision reported in **Lekshmi Ammal v. Velayudhan Kitta** (1958 K.L.T. 159). It was also pointed out that the property was the subject matter of a suit for partition and a receiver had been appointed. Once a receiver is appointed, it will be presumed that he has taken possession of all the properties and thus the so-called possession of the plaintiff cannot be accepted. These vital aspects have been omitted to be noticed by the courts below and that has resulted in an erroneous decree being passed. Accordingly, it is contended that the plaintiff is not entitled to any relief. 9. Learned counsel appearing for the respondent pointed out that the principle laid down in the decision referred to by the learned counsel for the appellant has no application to the facts of this case. First of all the plaintiff was not claiming under the defendant at all. He sets up an independent claim. It is pointed out that there is evidence to show that the receiver had not infact taken possession of the property now in the possession of the plaintiff, even S.A. 916/1996. 6 though the property might have been included in the partition suit. The courts below have also found that the plaintiff is residing in the building in the property and has been paying tax also in respect of the property. Attention was also drawn to the fact that infact the defendants had filed an application before the Land Tribunal concerned for assignment of the property and that was dismissed on the basis of the Revenue Inspector's report, which disclosed that the defendants did not have possession over the disputed property. There is nothing to indicate that the receiver appointed in the partition suit had dispossessed the plaintiff. It was the above items of evidence, which have persuaded the courts below to grant a decree in favour of the plaintiff. The finding of the courts below are based on the evidence on record and there is nothing to show that the findings are either perverse or unwarranted by the evidence on record. Accordingly, it is contended that no question of law, much less any substantial question of law arises for consideration in this appeal. 7 S.A. 916/1996. 10. At the outset itself it must be said that the contentions raised by the learned counsel for the respondent has considerable force. The main case set up by the defendants was that the suit property was involved in a partition suit, namely, O.S.40 of 1974 and a receiver had been appointed in that suit. The contention is that once a receiver is appointed he is presumed to have taken possession of the property. But both the courts below have considered this aspect in considerable detail and had come to the conclusion based on the evidence that the receiver did not infact take possession of the property. 11. In this context Order 40 Rule 1 of Code of Civil Procedure may be of some relevance. It reads as follows: _“_ _**1. Appointment of Receivers** .- (1) Where it appears to the Court to be just and convenient, the Court may by order -_ - _(a) appoint a receiver of any property, whether before or after decree;_ S.A. 916/1996. 8 _(b) remove any person from the possession or custody of the property;_ _© commit the same to the possession, custody or management of the receiver; and_ _(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit._ _(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property, any person whom any party to the suit has not a present right so to remove.”_ Order 40 Rule 1 sub clause (2) is clear that the receiver cannot dispossess any person whom any party to the suit has not a present right so to remove. The evidence on record shows that the receiver had not taken possession of the suit property. That means that it could not be said that the plaintiff was not claiming under the partition suit and S.A. 916/1996. 9 that he had set up independent claim. Merely because the property might have been included in the partition suit, that does not mean that the plaintiff had no independent possession over the suit property. 12. The courts below have noticed that there is overwhelming evidence in the case to come to the conclusion that the plaintiff is in actual possession of the suit property. Even though it is contended by the contesting defendants that they have proprietory rights over the suit property, both the courts below found that there is no evidence to establish the said fact. Further, as noticed earlier, the courts below have also noticed that the first defendant moved the Land Tribunal concerned for assignment of the suit property. Revenue Inspector's report indicated that the applicant had no possession over the suit property and it was in the possession of the plaintiff in the suit. On the basis of the evidence adduced before the Land Tribunal, the application was rejected. S.A. 916/1996. 10 13. The lower appellate court has considered various documents produced by either side and has come to the conclusion that it is clear that the plaintiff was residing in the building situate in the suit property. Ext.X1 is the tax assessment register, the entries in which also goes in favour of the plaintiff. The only item of evidence produced by the contesting defendant was Ext.B6, which is the voters' list. The lower appellate court has given convincing reasons as to why it could not be accepted in respect of the claim put forward by the defendants. The commission report also shows that the plaintiff is residing in the building situate in the suit property. In the light of the fact that since the defendants have not been able to establish any manner of right to suit property nor is there any evident to show that the plaintiff was holding it under the defendants. The plaintiff cannot be said to be an agent or be in permissive possession. In the decision cited by the learned Senior Counsel, in fact the claimants were employees of the defendant. In that context it was held that the possession is S.A. 916/1996. 11 at best one amount to detention and not actual possession. The principle has no application to the facts of this case. 14. It must be noticed that the suit is one for injunction simplicitor and the court is only concerned with the possession of the property as on the date of suit. Both the courts below have not found that the plaintiff is holding under the defendants as claimed by them or the defendants have established their proprietory right over the property. Both the courts below on an appreciation of the evidence in the case came to the conclusion that the plaintiff is in actual physical possession over the suit property. Even assuming that Ext.A1 is a fabricated document and the plaintiff cannot base his claim on that document, there are other evidence in the case, which are accepted by the courts below. No reason are given as to why this court should interfere with the findings of fact rendered by the courts below, especially when it is not shown that the findings are either perverse or unwarranted by the evidence on record. S.A. 916/1996. 12 The result is that this appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.