Balakrishnan and Sasikala v. Sumaija and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## **`RSA NO. 517 OF 2015`** ``` AGAINST THE DECREE AND JUDGMENT DATED 04.02.2015 IN A.S.NO.446/2014 ``` ``` ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-III, THIRUVANANTHAPURAM AROSE FROM THE DECREE AND JUDGMENT DATED 30.11.2005 IN O.S.NO.32/2000 ON THE FILES OF THE MUNSIFF COURT, ``` ## **`ATTINGAL`** ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** - **`1 BALAKRISHNAN, S/O ELAYAN, AGED 64 YEARS, RESIDING AT VILAYIL VEEDU, KUZHIYILMUKKU, CHITTATTINKARA DESOM, AVANAVANCHERRY`** - **`2 SASIKALA, D/O PONNAMMA, AGED 44 YEARS, RESIDING AT VILAYIL VEEDU, KUZHIYILMUKKU, CHITTATTINKARA DESOM, AVANAVANCHERRY BY ADVS.`** - **`SRI.M.R.ANANDAKUTTAN SRI.MAHESH ANANDAKUTTAN SMT.S.SOUMYA ISSAC SMT.M.A.ZOHRA`** ## **`RESPONDENTS/RESPONDENTS/LEGAL HEIRS OF PLAINTIFF:`** - **`1 SUMAJA, W/O DILEEP KUMAR, AGED ABOUT 38 YEARS, RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE, VALLAKKADAVU, THIRUVANANTHAPURAM-695 035`** - **`2 SUDEEP, S/O DILEEP KUMAR, AGED ABOUT 13 YEARS (MINOR) RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE, VALLAKKADAVU, THIRUVANANTHAPURAM-695 035`** - **`3 DIVYA, D/O DILEEP KUMAR, AGED ABOUT 10 YEARS, RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE, VALLAKKADAVU, THIRUVANANTHAPURAM-695 035`** ``` BY ADVS. SRI.K.JAJU BABU SR. SMT.M.U.VIJAYALAKSHMI ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON ``` ``` 16.01.2024 ALONG WITH R.S.A.NO.518/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 RSA NO. 518 OF 2015 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 04.02.2015 IN ``` ``` A.S.NO.450/2014 ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-III, THIRUVANANTHAPURAM AROSE FROM THE DECREE AND JUDGMENT DATED 30.11.2005 IN O.S.NO.2/2000 ON THE FILES OF THE MUNSIFF COURT, ATTINGAL ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** - **`1 BALAKRISHNAN S/O. ELAYAN, AGED 64 YEARS, RESIDING AT VILAYIL VEEDU, KUZHIYILMUKKU, CHITTATTINKARA DESOM, AVANAVANCHERY.`** - **`2 SASIKALA D/O. PONNAMMA, AGED 44 YEARS, RESIDING AT VILAYIL VEEDU, KUZHIYILMUKKU, CHITTATTINKARA DESOM, AVANAVANCHERY.`** ``` BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.MAHESH ANANDAKUTTAN SMT.S.SOUMYA ISSAC SMT.M.A.ZOHRA ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS 2 & 3 & LEGAL HEIRS OF 1ST`** ## **`DEFENDANT:`** - **`1 ULLAS, AGED 44 YEARS, RESIDING AT CHARUVILA PUTHEN VEEDU, NEAR P.T.M.L.P SCHOOL, MARUTHENKONAM, BALARAMAPURAM, PIN- 695010`** - **`2 AYYAPPAN BHANU, AGED ABOUT 60 YEARS, RESIDING AT T.C. 36/1796/2, ABILASHA, PETTA VILLAGE, VALLAKKADAVU P.O., PIN-695035`** - **`3 SUMAJA, AGED ABOUT 38 YEARS, W/O. DILEEP KUMAR, RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE,`** ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 3 ``` ## **`VALLAKKADAVU, THIRUVANANTHAPURAM, PIN-695035`** ``` 4SUDEEP, AGED ABOUT 13 YEARS (MINOR), S/O. DILEEP KUMAR, MINOR, RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE, VALLAKKADAVU, THIRUVANANTHAPURAM, 695035 ``` ``` 5DIVYA, AGED ABOUT 10 YEARS, D/O. DILEEP KUMAR, MINOR, RESIDING AT MELE CHARUVILA VEEDU, PETTAH VILLAGE, VALLAKKADAVU, THIRUVANANTHAPURAM, 695035 (RESPONDENTS 4 AND 5 ARE MINORS AND REPRESENTED BY THEIR MOTHER AND LOCAL GUARDIAN SUMAJA (RESPONDENT NO.3) ``` ``` BY ADVS. SRI.BRIJESH MOHAN SMT.ELIZABETH ANTONY SRI.K.JAJU BABU SR. ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 16.01.2024 ALONG WITH R.S.A.NO.517/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 4 ``` ## **JUDGMENT** ## **Dated this the 16[th] day of January, 2024** R.S.A. No.517 of 2015 has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.446 of 2014 dated 04.02.2015 on the files of the Court of the Additional District Judge-III, Thiruvananthapuram arose from the decree and judgment in O.S. No.32 of 2000 dated 30.11.2005 on the files of the Munsiff Court, Attingal. The appellants herein are the defendants and respondents are legal heirs of the plaintiff in O.S. No.32/2000. 2. R.S.A. No.518 of 2015 has been filed under order XLII Rule 1 read with Section 100 of CPC, challenging the decree and judgment in A.S. No.450 of 2014 dated 04.02.2015 on the files of the Court of the Additional District Judge-III, Thiruvananthapuram arose from the decree and judgment in O.S. No.2 of 2000 dated 30.11.2005 on the files of the Munsiff Court, Attingal. The ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 5 ``` appellants herein are the plaintiffs and respondents are defendants 2 and 3 in O.S. No.2 of 2000 and legal heirs of the 1[st] defendant. 3. Heard the learned counsel for appellants as well as the learned counsel appearing for contesting respondents, in detail. 4. I shall refer the parties in these appeals as “Sri. Balakrishnan and another” and “Sri.Dileepkumar and others” for convenience. 5. At the time of admission, my learned predecessor, as per order dated 03.06.2015, admitted these appeals by formulating the following substantial questions of law: i. Whether the courts below erred in granting a decree for mandatory injunction in a suit for prohibitory injunction simplicitor without any allegation or poof that the appellant after passing of temporary injunction order trespassed into the property and reduced the property in to their possession ? ii. Whether the courts below were legally correct in presuming that ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 6 ``` Sreedharan, the title holder of the property was dead, by invoking Sections 107 & 108 of Evidence Act? 6. In this matter, Sri.Dileepkumar filed O.S. No.32/2000, at the first instance claiming absolute title over the entire plaint schedule property on the strength of documents duly executed by Sreedharan and in continuation of the same, by the subsequent assignees. Accordingly, the relief of vacant possession of the plaint schedule property from Sri.Balakrishnan and another was sought for. 7. Thereafter, Sri.Balakrishnan and another filed O.S. No.2/2000 seeking the relief of prohibitory injunction asserting possession over the plaint schedule property on contending that Sreedharan, who is the uncle of Balakrishnan, entrusted the same with him and therefore he has got right of possession over the plaint schedule property. 8. The trial court tried both cases together, treating O.S. No.2/2000 as the leading case. PW1 examined and Ext.A1 marked on the side of the plaintiffs. DWs 1 to 3 ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 7 ``` examined and Exts.B1 to B16 marked on the side of the defendants. Ext.C2 marked as court exhibits. 9. Finally, the trial court dismissed the right claimed by Sri.Balakrishnan and another including the plea of adverse possession and limitation, while holding that Dileepkumar and Ayyappan Bhanu perfected title over plaint schedule property and thereby they were entitled to the relief of vacant possession of the same. Accordingly, O.S. No.2/2000 was dismissed and O.S. No.32/2000 was allowed directing the defendants therein to surrender vacant possession of the said property and building therein within one month. 10. Though, appeals filed challenging the verdict of trial court vide A.S. Nos. 446 and 450 of 2014, the Appellate Court also dismissed the said appeals as per common judgment dated 04.02.2015. 11. To be on the crux of the matter, originally, Sri.Dileepkumar filed suit before the Vacation Court, Thiruvananthapuram on 24.12.1999 seeking the relief of permanent prohibitory injunction on asserting title and ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 8 ``` possession over the same. The same Court transferred the case to the Munsiff Court, Thiruvananthapuram and renumbered the suit as O.S. No.32/2000. As on 03.01.2000, Sri.Balakrishnan and another filed O.S. No.2/2000 seeking the relief of prohibitory injunction. On analysis of evidence, the learned Munsiff found that O.S. No.2/2000 was filed after filing of O.S. No.32/2000 and at the time of filing O.S. No.32/2000, Dileepkumar was in possession of the plaint schedule property and Balakrishnan and another trespassed upon the same after filing O.S. No.2/2000, subsequent to filing of O.S. No.32/2000. 12. Tracing the title of the plaint schedule property, originally, the plaint schedule property belonged to one Sreedharan on the strength of sale deed No.1111/1956 of SRO, Attingal, executed as on 04.04.1956 by Bhargavi Amma. In so far as the title of Sreedharan is concerned, the same is not in dispute. The dispute is with regard to subsequent documents of title. 13. No materials are available to hold that Sreedharan was alive when release deed No.3978/1960 ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 9 ``` was executed in between the legal heirs of Sreedharan as on 11.07.1960 and further, the legality of Ext.B7 was found in O.S. No.138/1964 as per the decree and judgment therein, produced as Ext.B12 and B13 (Ext.B12 is the copy of preliminary judgment in O.S. No.138/1964 and Ext.B13 is the copy of decree in O.S. No.138/1964). 14. After execution of Ext.B6, as per Ext.B14 Kunji executed gift deed No.1780/1971 in favour of Raju @ Dileepkumar. In continuation of Ext.B6, the remaining property was gifted in favour of Sathyabhama and Sathyabhama in turn executed Ext.B1 gift deed in favour of Bhanu. Thereafter, Bhanu executed Ext.B2 sale deed in favour of Ullas and Ullas as per Ext.B3 sale deed transferred the same in favour of Bhanu. 15. As things stand now, it is emphatically clear that now the plaint schedule property is owned by Dileepkumar @ Raju, on the strength of Ext.B14 and Ayyappan Bhanu on the strength of Ext.B3 in continuation of Exts.B7 and subsequent documents. Therefore, it is established by evidence that Balakrishnan and another do ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 10 ``` not have any right over the plaint schedule property and thereby they even claimed right of adverse possession and limitation. The plea of adverse possession and limitation not at all proved in this case, where the trial court found that Balakrishnan and another trespassed upon the property after institution of O.S. No.32/2000. 16. Thus, it is held that the trial court rightly dismissed O.S. No.2/2000 and decreed O.S. No.32/2000. Further, it is discernible that the trial court granted decree for mandatory injunction in a suit for temporary injunction, when it was found that, at the time of filing of the suit, Dileepkumar was the person who was in possession of the plaint schedule property and he was dispossessed during the pendency of the suit, by moulding the relief to restore status quo ante. 17. In the decision reported in **[2023 (7) KHC 457 : 2024 (1) KLT 244] Joseph John v P.A. Johny Kutty @ Yohannan,** this Court considered the power of the Court to ‘mould reliefs’ and it was held that the procedure being followed is that when one among the parties to a suit does ``` R.S.A. Nos. 517 & 518 of 2015 ``` ``` 11 ``` anything to alter the position of the subject matter of the suit, on the date of the suit or when an order of interim injunction or status quo is in force, the court should have to undo the same by placing the subject matter on the date of the suit or at the stage of passing the interim order, usually call it as reverting the subject matter to status quo ante (the situation as it existed earlier) on the date of filing the suit. 18. In so far as the death of Sreedharan is concerned, the same is not in serious dispute and even Balakrishnan and another, not even attempted to issue a summons to Sreedharan to secure his presence, in any manner, atleast to see what would be the mode in which the summons would have returned. Therefore, it could not be held that the Courts below went wrong in holding death of Sreedharan and consequential execution of Ext.B7 between their legal heirs. It is relevant to note that, as of now, Balakrishnan and another have been occupying the plaint schedule building after trespassing upon the same after filing O.S. No.32/2000. In view of the matter, the trial ``` 12 ``` ``` R.S.A. Nos. 517 & 518 of 2015 ``` court is fully justified in dismissing O.S. No.2/2000 and allowing O.S. No.32/2000, directing the defendants therein to surrender vacant possession of the plaint schedule properties after moulding the relief to restore status quo ante. The Appellate Court also confirmed the said finding rightly. Thus, it held that the concurrent verdicts entered into by the trial court as well as the Appellate Court do not require any interference. 19. In the result, these regular second appeals fail and are dismissed accordingly. Consequently, the decree and judgment under challenge stand confirmed. All interlocutory applications also stand dismissed and the interim order of status quo shall stands vacated. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK