Chelattubhagom Nair Karayogam v Kavukutty Amma Ammukkutty Amma and Others

2025:KER:29698 RSA No.1319 of 2004 1 **==> picture [58 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947** **RSA NO. 1319 OF 2004** **AGAINST THE JUDGMENT AND DECREE DATED 05.07.2004 IN A.S NO.73/1998 OF SUB COURT, CHERTHALA** **ARISING OUT OF THE JUDGMENT & DECREE DATED 28.03.1998 IN O.S NO.869/1991 OF PRINCIPAL MUNSIFF'S COURT, CHERTHALA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 CHELATTUBHAGOM NAIR KARAYOGAM, TRICHATTUKULAM P.O., ALAPPUZHA DISTRICT.** - **2 CHELATTUBHAGOM NAIR KARAYOGAM, *(AMENDED) REPRESENTED BY ITS PRESENT PRESIDENT,** **M.K.VIJAYAN, SANTHI BHAVANAM, THRICHATTUKULAM P.O., ALAPPUZHA DISTRICT.** ***(THE NAME OF THE 2ND APPELLANT IS AMENDED BY INCORPORATING THE NAME OF THE PRESIDENT AS N.ASOKA KUMAR, REVATHI, TRICHATTUKULAM P.O., ALAPPUZHA, PIN-688526 AS PER ORDER DATED 07.10.2024 IN IA.NO.1/2024 IN RSA.1319/2004)** 2025:KER:29698 RSA No.1319 of 2004 2 **==> picture [58 x 58] intentionally omitted <==** **3 THE PRESENT SECRETARY OF CHELATTUBHAGOM NAIR KARAYOGAM, *(AMENDED) K.K.VIJAYAN, THEKKEPARAYAKAT, THRICHATTUKULAM, ALAPPUZHA DISTRICT.** ***(THE NAME OF THE 3RD APPELLANT IS AMENDED BY INCORPORATING THE NAME OF THE PRESENT SECRETARY AS M.P.JAYASANKAR, MALIYEKKAL, TRICHATTUKULAM P.O., ALAPPUZHA,PIN-688526 AS PER ORDER DATED 07.10.2024 IN IA.NO.1/2024 IN RSA.1319/2004)** **4 THE PRESENT TREASURER OF CHELATTUBHAGOM NAIR KARAYOGAM *(AMENDED), S.MURALEEDHARAN NAIR, 'DEVAKI SADANAM', THRICHATTUKULAM, ALAPPUZHA DISTRICT.** ***(THE NAME OF THE 4TH APPELLANT IS AMENDED BY INCORPORATING THE NAME OF THE PRESENT TREASURER AS C.N.NANDAKUMAR,CHEMMAZATHU,TRICHATTUKULAM P.O., ALAPPUZHA, PIN-688526 AS PER ORDER DATED 07.10.2024 IN IA.NO.1/2024 IN RSA.1319/2004)** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.G.RAJAGOPALAN SMT.T.RESMI DAMODARAN** ## **RESPONDENTS/RESPONDENT/PLAINTIFF:** - **1 KAVUKUTTY AMMA AMMUKUTTY AMMA *(DIED, LHRS IMPLEADED) VALYACHIRAVEETTIL, CHELATTUBHAGOM MURI, PANAVALLY VILLAGE, ALAPPUZHA DISTRICT.** **2 JALAJA, VALYACHIRAVEETTIL, CHELATTUBHAGOM MURI, PANAVALLY VILLAGE, P.O.PANAVALLY, PIN-688 581, ALAPPUZHA DISTRICT.** 3 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29698 RSA No.1319 of 2004 - **3 HARIHARAN, KANDATHIL PARAMBU, EZHUPUNNA VILLAGE, P.O.CHANDIRUR, PIN-688 547, ALAPPUZHA DISTRICT.** - **4 SOBHANA,** **VALYACHALCHIRA VEETTIL, CHELATTUBHAGOM MURI, P.O.THRICHATTUKULAM, PIN-688 581, ALAPPUZHA DISTRICT.** - **5 INDIRA, NALASHOUNGATTUVELI, MARARIKULAM NORTH P.O., S.L.PURAM,PIN-688 549, ALAPPUZHA DISTRICT.** - **6 JAYALAKSHMI,** **KANANGATTUVELIYIL VEEDU, THEKKUMMURI, P.O.KURUPPAMKULANGARA, CHERTHALA, PIN-688 539.** ***(ADDL.RESPONDENTS NO.2 TO 6 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 22.06.2020 IN IA.2240/2011. (IA.1/2011).** **BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.JITHIN PAUL VARGHESE, Addl.R1 TO R6 SMT.S.KARTHIKA, Addl.R1 TO R6 SMT.M.P PRIYANKA, Addl.R1 TO R6 SRI.SAJU THALIATH, Addl.R1 TO R6 SRI.K.SUNIL, Addl.R1 TO R6 SRI.M.S.UNNIKRISHNAN, Addl.R1 TO R6** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** 2025:KER:29698 RSA No.1319 of 2004 4 **==> picture [58 x 58] intentionally omitted <==** ## K.BABU, J. -------------------------------------- ## RSA No.1319 of 2004 --------------------------------------Dated this the 8[th] day of April, 2025 ## JUDGMENT This Regular Second Appeal is directed against the judgment and decree passed by the Subordinate Judge's Court, Cherthala, in A.S.No.73/1998, which arose from the judgment and decree passed by the Munsiff's Court, Cherthala in O.S.No.869/1991. The defendants are the appellants. 2. The facts giving rise to the appeal are the following: 2.1. The plaint schedule property is 10 cents of land, which was the subject matter of O.A 300/1970 before the Land Tribunal. This property originally belonged to defendant No.1-Karayogam. - 2.2. The plaintiff pleaded the following: The plaintiff has been in possession of the plaint schedule property. She has been enjoying the property for the last 2025:KER:29698 5 **==> picture [58 x 58] intentionally omitted <==** RSA No.1319 of 2004 20 years. With the enactment of the Land Reforms Act, the plaintiff filed a petition as O.A No.300/1970 before the Land Tribunal. The Tribunal ordered to issue a purchase certificate in respect of 10 cents of land in favour of the plaintiff. When the competent authority visited the plaint schedule property to measure out it, the office bearers of defendant No.1-Karayogam requested the plaintiff to satisfy with six cents. They also represented to the plaintiff that the title of the remaining extent of the property would be transferred in her favour by way of executing a sale deed after the general body of the Karayogam takes a decision. The plaintiff believed the words of the office bearers of defendant No.1Karayogam and therefore, she put her signature on a paper, agreeing to reduce the extent of Kudikidappu to six cents. Even after that, the plaintiff has been in possession and enjoyment of the plaint schedule property. She constructed fence on all sides except on the northern side. She also constructed an ESP-type latrine and a shed on the property for collecting firewood. She also erected a 2025:KER:29698 RSA No.1319 of 2004 6 **==> picture [58 x 58] intentionally omitted <==** poultry farm on the property. The office bearers of the Karayogam did not execute the deed as agreed. They tried to prolong the execution of the sale deed. When the new office bearers took charge, defendant No.2 along with his men, attempted to demolish the fence erected on the sides of the property. Defendant No.2 threatened that he would remove the entire construction on the property. The defendants have no right to trespass upon the plaint schedule property. 2.4. Therefore, the plaintiff instituted a suit for an injunction restraining the defendants from forcibly entering the property and committing waste therein. 2.5. The defendants resisted the suit contending as follows: The plaintiff is not in possession of the property as pleaded. She filed O.A No.300/1970 before the Land Tribunal, Thyacattussery. The Tribunal granted a purchase certificate in respect of six cents of property in survey No.207/18. It was given at 2025:KER:29698 RSA No.1319 of 2004 7 **==> picture [58 x 58] intentionally omitted <==** the request of the plaintiff and also with the consent and knowledge of the then office bearers of the Karayogam. The defendants did not agree to sell any property as pleaded. The plaintiff is in possession of only six cents of land in respect of which the Tribunal issued the purchase certificate. In October 1990, the plaintiff trespassed upon the defendants' property and forcibly constructed a latrine thereon. In spite of repeated demands, the plaintiff did not remove the same. The defendants had initiated steps to remove the same. Neither defendant No.2 nor any office bearers of the Karayogam attempted to demolish the fence as alleged. There has not been any fence, as pleaded. The property other than six cents is in the possession of the defendants. 3. The Trial Court framed the following issues: - “(1) Whether the plaintiff is in possession of the plaint schedule property. - (2) Whether the plaintiff is entitled to the injunction prayed for. 2025:KER:29698 RSA No.1319 of 2004 8 **==> picture [58 x 58] intentionally omitted <==** ## (3) Relief and costs.” 4. PWs 1 and 2 were examined and Exts.A1 to A3 were marked on the side of the plaintiff. On the part of the defendants, DW1 was examined, and Ext.B1 was marked. Exhibit C1 was marked as Court Exhibit. 5. The Trial Court held that the plaintiff has been in possession and enjoyment of the plaint schedule property for many years. The Trial Court granted a prohibitory injunction as prayed for in the plaint. 6. The defendants challenged the decree and judgment passed by the Trial Court, filing A.S No.73/1998. The First Appellate Court confirmed the judgment passed by the Trial Court. 7. Aggrieved by the judgment of the First Appellate Court that confirmed the decree and judgment passed by the Trial Court, the defendants have come up before this Court under Section 100 of the CPC. 8. After hearing both sides, this Court reformulated the 2025:KER:29698 RSA No.1319 of 2004 9 **==> picture [58 x 58] intentionally omitted <==** substantial questions of law as follows: - (i) Whether the absence of title over the entire plaint schedule property disentitled the plaintiff to claim the injunction as prayed for. - (ii) Whether the Courts below acted in accordance with law in the matter of appreciating the evidence on record. 9. I have heard the learned counsel for the appellants and the learned counsel for the respondents. 10. The learned counsel for the appellants contended that since the respondent/plaintiff has no title or possession over the entire property, except six cents of land assigned to her, she is not entitled to the prohibitory injunction against the Karayogam, which is the true owner of it. The learned counsel further contended that the Trial Court and the First Appellate Court failed to draw necessary inferences and presumptions based on the available evidence. 2025:KER:29698 RSA No.1319 of 2004 10 **==> picture [58 x 58] intentionally omitted <==** 11. The learned counsel for the respondents contended that there is admissible evidence to show that the plaintiff has been in settled possession of the entire plaint schedule property. ## The Evidence 12. The plaintiff adduced oral evidence as PW1. The plaintiff deposed that she has been in possession and enjoyment of the plaint schedule property for the last 20 years. She claimed 'kudikidappu' right over 10 cents of land (the plaint schedule property) by filing application as O.A No.300/1970 before the Land Tribunal, Thycattussery. 13. The Land Tribunal ordered to issue a purchase certificate for the plaint schedule property in favour of the plaintiff. The office bearers of the defendants were present when the officials came to measure out the property. The plaintiff is an illiterate lady. The office bearers of the defendant-Karayogam requested her to reduce the extent of the Kudikkidappu right to six cents. According to PW1, the then office bearers of the defendant-Karayogam had 11 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29698 RSA No.1319 of 2004 agreed to execute a sale deed with respect to the rest of the property that remained in her possession. Even after that, the plaintiff has been in exclusive possession of the property by putting fence on all three sides. PW1 stated that she constructed an ESPtype latrine and a shed for keeping firewood and a poultry house on the property. Once in three years, the office bearers of the Karayogam changed. When new office bearers took charge in October 1991, they attempted to trespass upon the property and commit waste therein. PW1 deposed that defendant No.2 and some of his men attempted to encroach upon the property and threatened the plaintiff that they would demolish the fence around the property. While she was out of her house, the defendants demolished the fence and destroyed the structures on it. PW1 specifically stated that the property in her possession has welldefined boundaries on all sides. 14. The Trial Court had issued a Commission to PW2 to conduct a local inspection in the property and file a report. PW2 RSA No.1319 of 2004 12 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29698<br>**----- End of picture text -----**<br> prepared Ext.C1 report. PW2 stated that there was fence on the sides of the plaint schedule property, which somebody destroyed, approximately two days before the suit. PW2 deposed that a poultry house was situated in the plaint schedule property. Exhibit C1 report corroborates the oral evidence of PW2. 15. The defendants had filed O.S No.871/1991 seeking removal of the ESP-type latrine from the plaint schedule property. The pleadings in O.S No.871/1991 corroborate the pleadings set up by the plaintiff that she had constructed an ESP-type latrine on the plaint schedule property. O.S No.871/1991 was ordered to be tried along with the present suit. But the defendants had withdrawn the suit. Exhibit A3 is a report of the Commissioner in O.S No.871/1991, which also shows remnants of certain fence stumps, cut and removed and again grown into branches. Ext.A3(a) plan shows the existence of 'thulasithara' on a portion of the plaint schedule property which is beyond the extent of six cents measured out based on Ext.A1 pattayam. 2025:KER:29698 RSA No.1319 of 2004 13 **==> picture [58 x 58] intentionally omitted <==** 16. DW1 gave evidence for the defendants. DW1 stated that there was an understanding between the plaintiff and the defendants regarding the issuance of a purchase certificate confining to six cents of land. The written statement is silent regarding the understanding between the plaintiff and the defendants. The defendants did not deny the fact that the Land Tribunal ordered the issuing of pattayam with regard to 10 cents of property. 17. The Trial Court and the First Appellate Court concluded that the pleading that the Land Tribunal ordered to give 10 cents of property as 'kudikidappu' to the plaintiff remained unchallenged. It is pertinent to note that in Ext.A1 pattayam, initially, the extent was shown as 10 cents, and subsequently, the same was struck off inserting 'six cents' both in figures and words. The contention of the defendants is that the purchase certificate was granted only in respect of six cents even though she was entitled to purchase 10 cents. The Trial Court and the First 2025:KER:29698 RSA No.1319 of 2004 14 **==> picture [58 x 58] intentionally omitted <==** Appellate Court, after appreciating the pleadings and evidence, came to the conclusion that the structures in the plaint schedule property were in existence even prior to 1990. 18. Therefore, the Trial Court and the First Appellate Court found that the plaintiff has been in absolute possession and enjoyment of the plaint schedule property, though the purchase certificate was issued to her only in respect of six cents of land. The specific conclusion of the Trial Court is that the plaintiff has been in possession of the plaint schedule property from 1970 onwards. This finding of fact has been confirmed by the First Appellate Court. 19. The only surviving challenge is that the plaintiff had no title over the property other than six cents of land. The pleadings and evidence lead to the conclusion that the plaintiff is in settled possession of the property. The submission of the learned counsel for the appellants/defendants is that the plaintiff is a trespasser. There is no foundation for these pleadings. It is trite that the RSA No.1319 of 2004 15 **==> picture [58 x 58] intentionally omitted <==** **==> picture [102 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29698<br>**----- End of picture text -----**<br> person in peaceful possession is entitled to retain his possession. In order to protect such possession, he may even use reasonable force to keep out a trespasser. 20. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands. It is the settled possession or effective possession of a person without title that would entitle him to protect his possession even against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has been settled by a catena of decisions. [See Munshi Ram v. Delhi Administration (AIR 1968 SC 702) ] In Munshi Ram , it was held that no one, including the true owner, has the right to dispossess even a trespasser by force if the trespasser is in settled possession of the land. 21. In the present case, the plaintiff has settled possession over the entire plaint schedule property. Admittedly, she has title 16 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:29698 RSA No.1319 of 2004 over six cents of land; the remaining property is in her exclusive possession. The substantial questions of law are, therefore, answered accordingly against the appellants/defendants. The Regular Second Appeal lacks merits. The Regular Second Appeal stands dismissed with the costs of the plaintiff. Sd/K.BABU, JUDGE KAS