Janardhanan and Bhanumathy v. Sivanandan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **RSA NO. 536 OF 2017** **AGAINST THE JUDGMENT AND DECREE PASSED IN APPEAL SUIT NO.99/2012 OF SUB COURT, OTTAPPALAM, DATED 28.10.2016 AGAINST THE JUDGMENT AND DECREE PASSED IN O.S No.131/2009 OF MUNSIFF MAGISTRATE COURT,PATTAMBI, DATED 22.8.2012** ## **APPELLANTS/APPELLANTS/DEFENDANT & SUPPL. 2ND DEFENDANT:** 1 JANARDHANAN 67 YEARS S/O. LATE CHENNAN @ SUKUMARAN. 2 BHANUMATHY 64 YEARS W/O. JANARDHANAN, BOTH RESIDING AT PALAKKAL HOUSE, THIRUMITTAKODE AMSOM AND POST, IRINGUTTUR DESOM, OTTAPALAM TALUK, (NOW PATTAMBI TALUK), PALAKKAD DIST. BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SIVANANDAN 58 YEARS S/O. LATE CHENNAN @ SUKUMARAN, PALAKKAL HOUSE, THIRUMITTAKODE AMSOM AND POST, IRINGUTTUR DESOM,OTTAPALAM TALUK (NOW PATTAMBI TALUK),PALAKKAD DISTRICT, PIN - 679 533. BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA M.A.ZOHRA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.9.2022, THE COURT ON 27.09.2022 DELIVERED THE FOLLOWING: RSA No.536 of 2017 2 ## **JUDGMENT** Dated this the 27[th] day of September, 2022 This appeal has been directed against the judgment and decree in A.S. No.99/2012 on the file of Sub Court, Ottappalam which in turn arose out of judgment and decree in O.S. No.131/2009 on the file of MunsiffMagistrate's Court, Pattambi. 2. The appellants are the defendants and the suit was one for permanent prohibitory injunction. (Parties would hereinafter be referred as per their status before the trial court.) The plaint schedule property originally belonged to the mother of the plaintiff as well as the 1[st] defendant as per the partition deed No.1365/94 of Thrithala Sub Registrar Office dated 27.4.1994. The mother of the plaintiff executed a registered will No.117/1994 of Thrithala S.R.O. dated 25.11.1994 in favour of the plaintiff. Mother expired on 04.10.2002. Thereby, plaintiff is in absolute possession and enjoyment RSA No.536 of 2017 3 ## of the plaint schedule property. 3. The plaintiff has been residing in the house situated in the plaint schedule property with family. The plaint schedule property is situated within definite boundaries. The 1[st] defendant made attempt to trespass into the plaint schedule property raising untenable claims. He made peg marking and drawn rope and thereby made attempt to trespass into a portion of plaint schedule property on 23.8.2009. It was obstructed by the plaintiff, but the defendants threatened to trespass into the plaint schedule property further and thereby suit has been filed. 4. Defendants filed written statement denying the execution of will by the mother on her free will and volition. According to him, it is a fabricated document and the mother has not signed in the same. North east of plaint schedule property there is 5 cents of property shown as tak No.2 in item No.7 of Exhibit A3, partition deed which is set apart to the share of the defendants. Plaint schedule property has been described including that RSA No.536 of 2017 4 5 cents of property. That portion of property has been assigned in favour of the wife of the 1[st] defendants as per assignment deed No.231/2009. Marking was done when plaintiff made attempt to trespass into the property allotted to the defendants as per Exhibit A3 partition deed. So, according to him there is no cause of action for filing the suit. 5. 2[nd] defendant was subsequently impleaded who adopted the contention in the written statement of the original defendant. 6. PW1 to PW4 were examined and Exhibit A1 to A3 marked from the side of the plaintiff. Exhibits C1 to C4 were also marked. There was no evidence from the side of the defendants. Trial court on evaluating the facts, circumstances and evidence adduced found that plaint schedule property was lying within definite boundaries on all sides and proved his possession over plaint schedule property. It is also found that execution of Exhibit A1 will has been proved by the plaintiff through PW2 and PW3 RSA No.536 of 2017 5 and accordingly decreed the suit as prayed for. 7. Against which defendants filed appeal and the 1[st] appellate court on re-appreciating the facts, circumstances and evidence adduced confirmed the judgment and decree passed by the trial court. 8. Having lost before the two lower forums the appellants/defendants approaches this Court in this regular second appeal. Notice was issued to the respondent/plaintiff. Both sides were heard. 9. According to the learned counsel for the defendants, both courts failed to frame proper issue since the claims with respect to plaint schedule property based on Exhibit A1 will which is disputed by the defendants and issue regarding the genuineness of the Exhibit A1 will ought to have been raised. In the absence of Exhibit A1 will, 1[st] defendant will become the natural heir of the plaint schedule property along with the plaintiff. Hence no injunction could have been granted against the co-owner. It is also his contention that without raising an issue with RSA No.536 of 2017 6 regard to the title both courts below have gone into the question of title by examining the genuineness of Exhibit A1 will and proof of Exhibit A1 will by the plaintiff and that has caused great prejudice to him. Court fee as contemplated under Section 27(a) of the Kerala Court Fees and Suit Valuation Act, also has not been paid. He would also vehemently contend that the identity of the plaint schedule property has not been proved and no survey commission was taken. The property is alleged to have been identified with the aid of rough sketch prepared by the commissioner that also according to him is illegal. 10. The learned counsel for the plaintiff on the other hand would contend that the plaint schedule property had been bequeathed by the mother in favour of the plaintiff, who had been looking after the mother all along and it is almost 6 years after the execution of the will that the mother died. Execution of the will has been proved, since the defendants disputed the execution of the will by the mother. Hence, the question of title was incidental for the RSA No.536 of 2017 7 determination of the relief of injunction. No issue with respect to the title is necessary and consequently court fee also not to be paid as per Section 27(a) of the Kerala Court Fees and Suit Valuation Act. It is also her contention that the plaint schedule property has been properly identified by deputing a commissioner. No evidence what so ever has been adduced by the defendants to substantiate any of the contentions raised in the written statement. So, according to her there is no reason what so ever to interfere with the concurrent findings of the court below. 11. Admittedly, the suit is one for simple injunction. The suit has been filed when there was attempt on the part of the defendants to trespass into the plaint schedule property and make peg marks and drawing rope to demarcate the disputed area. The commissioner during the first visit has noted a portion in plaint item No.1 with peg marking tying with rope. On perusing Ext.A3 partition deed it could be seen that defendants is party No.3 in the RSA No.536 of 2017 8 partition deed and shares allotted to him is item No.7 to 12 in the partition deed. The deceased mother was allotted item No.1 to 3. On examining Ext.A3 partition deed, item No.7 to 12 allotted to the original defendants it could be seen that item Nos.7 and 8 alone shares the boundary of item No.1 in the partition deed which is allotted to the mother. Item No.8 is the bylane (Edavazhi) left apart to item No.7. The description of item No.7 would reveal that it is the western portion of Kudiyirippu parambu (item No.1) lying in two taks in north and south. Plot No.7 has been demarcated in Ext.C4 sketch by the commissioner with the aid of village officer on the western side of plaint No.1. The extent of plaint schedule property is also clearly shown as 20 cents in Ext.A1 as well as in Ext.A3. Item No.8 allotted to the defendants also has been clearly shown in Ext.C4 plan by the commissioner. So the claim of the defendants with respect to 5 cents within the plaint schedule property is not seems to be covered as per the allotment of the property in Ext.A3 partition deed. RSA No.536 of 2017 9 Ext.A3 partition deed would also reveal that two taks of item No.7 is as north and south. So the contention of the defendants that the second tak in item No.7 is within the plaint schedule property is obviously incorrect. It is also to be noted that there are three items of property allotted to the mother as per Ext.A3 partition deed and out of which the will has been executed only with respect to item No.1 property in favour of the plaintiff. So the plaintiff could convincingly establish his right and possession over the plaint schedule property which is bequeathed in his favour by the mother as per Ext.A1 will which has been concurrently found to be proved by the courts below. Item No.1 allotted to the mother in the partition deed is the plaint schedule property and further north of it is item No.8 which is the pathway set apart to item No.7. The property allotted to the plaintiff as item No.18 is on the north of item No.8 and item No.7 allotted to the defendants and on the southern side of plaint schedule property is item No.4 in the partition deed which is RSA No.536 of 2017 10 allotted to another brother Raveendran. So the plaint schedule property allotted as item No.1 in the partition deed to the mother as well as item No.7 and 8 the property allotted to the defendant as well as the pathway set apart to item No.7 allotted to the defendant are all clearly demarcated and identified as per Ext.C4. The commissioner also reported that the property sold by the 1[st] defendant in favour of the 2[nd] defendant as per the document No.231/2009 of Thrithala S.R.O. is not included as per measurement or boundaries as part of item Nos.1, 4, 7, 8 and 18 of Exhibit A3 partition deed. 12. So, also the defendants did not adduce any evidence and also was not prepared to produce the assignment deed No.231/2009 executed by him in favor of second defendant. So, the contention of the learned counsel for the defendants that the second tak described in item No.7 in Exhibit A3 is the disputed property in the plaint scheduled property stands not proved. The defendants also were not even prepared to mount the box RSA No.536 of 2017 11 and offer themselves available for cross examination also. So, adverse inference as per the dictum laid down in **Vidhyadhar v. Manikrao and Another : AIR 1999 SC 1441** **: 1999 KHC 1091 : (1999) 3 SCC 573** squarely applies against the defendants in this case. 13. Defendants raised a specific contention disputing the execution of the will by the mother on her free will and volition. PW2 & PW3 were examined from the side of the plaintiff to prove the execution of the will. But defendants did not adduce any evidence to prove that the will executed is not genuine or otherwise vitiated by fraud or undue influence. No suspicious circumstances also could be brought out during evidence with regard to the execution of the will. It has also come out in evidence that the will was executed in the year 1994 and the mother died only in the year 2002. So, as has been rightly found by the courts below the execution of the will has been satisfactorily proved through the evidence of PW2 & PW3 at the instance of the plaintiff. RSA No.536 of 2017 12 14. It is contented by the learned counsel for the defendants that question of title has been gone into by the courts below by finding the execution of the will as proved without raising any issue on the question of title. As has been found by the 1st appellate Court the suit is one for injunction and the question of the title is only incidental to the question regarding possession of the property and hence an issue regarding the title is not warranted. 15. It is relevant in this context to quote paragraphs 10 and 11 of **Ramakrishna Reddy v. Mallappa : 2021 (5) KLT online 1071 (SC)** . “ _10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction._ _11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties_ RSA No.536 of 2017 13 _lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction."_ 16. In **Jharkhand State Housing Board v. Didar Singh and Another : (2019) 17 SCC 692** , question arouse as to whether the suit for permanent injunction is maintainable when defendants disputed the title of plaintiff. Paragraph 11 of the said decision is relevant in this context to be quoted which reads thus: “11. _It is well settled by catena of judgments of_ _this Court that in each and every case where the defendants disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendants raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”_ 17. From the above it can be concluded that in each RSA No.536 of 2017 14 and every case where defendants disputed title of the plaintiff, the plaintiff need not seeks for declaration of title. A suit for injunction will not lie only when the defendants raises a genuine dispute with regard to the title and there is a cloud over the title of the plaintiff. In the present case the plaintiff claimed right and possession over the plaint scheduled property as per the registered will executed by the mother before six years of her death. The mother died in the year 2002 and defendants made attempt to trespass into the plaint scheduled property in the year 2009 raising claim over 5 cents of property covered by the will executed in favour of the plaintiff by the mother. 18. So, when the defendants raised dispute about the genuineness of the will in the written statement, the plaintiff is bound to prove the genuineness of the will by examining the witnesses and the plaintiff also could satisfactorily prove the execution of the will by the mother in his favour through the evidence of PW2 and PW3. So, the question of proof of will is only incidental to the relief RSA No.536 of 2017 15 of injunction sought for by the plaintiff with respect to the plaint schedule property. The defendants could not raise any cloud over the title of plaintiff over the plaint schedule property by raising any tenable contentions. Though, he contended that 5 cents of property out of plaint schedule property forms tak No.2 in item No.7 of Exhibit A3 partition deed allotted to him, the plaintiff could establish through the evidence adduced by him as well as the Commissioner that tak Nos.1 and 2 of item No.7 in Exhibit A3 is situated on the western side of the plaint schedule property. So, in effect, it is not at all necessary to raise an issue on the question of title, since the defendants could not create any cloud upon the plaintiff's right and title over the plaint schedule property. He also even failed to adduce any evidence either oral or documentary to substantiate any of the contentions raised in the written statement. So, the contention of the learned counsel that the question of title has been gone into by the courts below without raising an issue and without paying RSA No.536 of 2017 16 sufficient court fee under Section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959 etc., is not at all sustainable either in law or on facts. 19. The other contentions of the learned counsel is with regard to proof of right and possession of plaintiff over plaint schedule property. Plaintiff produced Exhibit A1 will, Exhibit A2 tax receipt as well as Exhibit A3 partition deed. Though, the defendants denied the execution of Exhibit A1 will, it has already been found that the execution of will has been proved and it has been found concurrently by the courts below in favour of the plaintiff. In order to prove the identity of plaint schedule property also, the plaintiff take out a commission and Exhibit C3 report of commission and C4 sketch prepared by the Village Officer as per the description of the properties in Exhibit A3 partition deed were also brought in evidence. Exhibit C2 is the rough sketch prepared by the Advocate Commissioner. On the northern side of the plaint schedule property is item No.8 in partition deed, which is a RSA No.536 of 2017 17 - 'by lane'. In Exhibit C1 report also the Commissioner reported that the plaint schedule property is well bounded and demarcated with clear and definite boundaries. 20. So, the evidence of plaintiff and witness coupled with Exhibits C1 to C4, the Commissioner's report and plans would prove in abundance the identity of the plaint schedule property. Though the plaintiff raised a claim over a portion of item No.8 in Ext.A3 which is demarcated as red mark area in C4 plan, it has come out in evidence that item No.8 in Exhibit A3 extents up to plaint item No.7 and the plaintiff cannot be heard to contend that red mark portion is a part of plaint schedule property. So, it is hereby made clear that the red mark portion in Ext.C4 is not in the possession of the plaintiff and it is also a part of item No.8 'the edavazhi' set apart as access to item No.7 in the Exhibit A3 partition deed which is the property allotted to the 1st defendant. So, on a meticulous evaluation of the judgments passed by the court below and facts and circumstances, I RSA No.536 of 2017 18 am of the considered view that the courts below have appreciated the facts and law in a correct perspective and no substantial question of law emerges for consideration in the second appeal. Hence, appeal is found to be devoid of any merit and hence, dismissed. Sd/- **M.R.ANITHA JUDGE** SMF