Jaya Sreedhar v. Muraleedharan Nair and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH DAY OF JUNE 2012/5TH ASHADHA 1934 RSA.No. 147 of 2006 (A) ----------------------AS.327/2001 of ADDL.DISTRICT COURT (ADHOC)-I, KOTTAYAM OS.8/1999 of MUNSIF COURT, KANJIRAPPALLY APPELLANT(S)/RESPONDENT/PLAINTIFF: ---------------------- JAYA SREEDHAR, W/O.LATE SREEDHARAN NAIR, POURNAMI, CHIRAKKADAVU VILLAGE KANJIRAPPALLY TALUK. BY ADVS.SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S)/APPELLANTS/DEFENDANTS: -------------- - (*)1. MURALEEDHARAN NAIR, S/O.KRISHNAN NAIR, - KALLORAKKARA, THAMPALAKKADU, KANJIRAPPALLY.(DIED. LHRS. IMPLEADED AS ADDL.R3 TO R5) 2. GANGADHARAN NAIR, S/O.KRISHNAN NAIR, DO. DO. ## ADDL.RESPONDENTS: 3. KARTHIYAYINI, W/O.LATE MURALEEDHARAN NAIR, KALLOORAKKARA, THAMPALAKKADU, KANJIRAPPALLY VILLAGE AND TALUK. 4. MURALI MOHANAN , S/O.LATE MURALEEDHARAN NAIR, -DO- -DO- 5. USHA GOPAN,D/O.LATE MURALEEDHARAN NAIR, -DO- -DO- (*)LHRS. OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 5 AS PER THE ORDER DATED 28.03.2012 IN IA NO.2857/2011. BY ADV. SRI.RAJEEV V.KURUP - R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.147 of 2006 -------------------------------------Dated this the 26[th] day of June, 2012.** ## **JUDGMENT** Claiming that the suit property, 17 Ares in R.S. No.216/1 was acquired by her husband, the late Sreedharan Nair as per Ext.A1, assignment deed No.1277 of 1974 and on his death the said property devolved on her, appellant/plaintiff sued the respondents/defendants who are the brothers of her late husband for a decree for prohibitory injunction. Appellant claimed that she is the absolute owner in possession of the suit property and that respondents own some property adjacent to the said property. They attempted to interfere with the boundary stones of the suit property and trespass into the said property. Hence the suit. 2. Respondents contended that appellant has no title or possession of the suit property as per Ext.A1, assignment deed No.1277 of 1974 and that the suit property forms part of the 2.27 Acres described in the B schedule of Ext.B7, Will No.93 of 1988 executed by their parents. They further contended that the building situated in the suit property bearing door No.VIII/188 is assessed in the name of their mother. As per Ext.B7, Will, the B schedule property therein was bequeathed to the 2[nd] respondent. They thus claimed to be in possession and enjoyment of the suit property as its owners. 2 RSA No.147/2006 3. Trial court held that the property covered by Ext.A1 is identified by the Advocate Commissioner in Ext.C1(a) as plot ABCDA, that the appellant is in possession of the said property and granted a decree for prohibitory injunction. 4. Respondents challenged that judgment and decree in appeal. The first appellate court was of the view that there is no proper identification of the property covered by Ext.A1 and that appellant has not proved her claim of possession of the suit property. The appeal was allowed and the suit was dismissed. Hence the Second Appeal. 5. The following substantial questions of law are framed for a decision: i. Is the lower appellate court right in reversing the decree passed by the trial court on the ground that plaint schedule property has not been correctly identified, when the trial court had, inter alia, relied on Ext.C1, report and Ext.C1(a), plan as per which the plaint schedule property is identified and the 1[st] respondent examined as DW1 had no objection to Exts.C1 and C1 (a)? ii. Is the lower appellate court right in reversing the decree passed by the trial court ignoring the fact that under Ext.B18, sale deed executed by the 1[st] respondent in favour of the second respondent with regard to the 3 RSA No.147/2006 western property, the plaint schedule property which is lying to the east of the property covered by Ext.B18 is shown as the property in the possession of the appellant? 6. It is contended by the learned counsel for appellant that respondents can claim title and possession of only the property covered by Exts.B11, B12 and B14 to B16 since it is by the said documents that the predecessor-in-interest of respondents claim to have acquired title and possession of the property. According to the learned counsel, the suit property covered by Ext.A1 is situated in between the properties covered by Exts.B12 and B14. It is also contended by the learned counsel that a perusal of the documents produced by the respondents would show that neither they, nor their predecessor-in-interest had title and possession of the 17 Ares (42 cents) in R.S.No.216/1 acquired by the husband of the appellant as per Ext.A1. 7. The learned counsel for the respondents contended that the first appellate court was right in its finding that there is no proper identification of the suit property. According to the learned counsel, without identifying the properties covered by Exts.B11, B12 and B14 to B16, there cannot be a proper identification of the property claimed by the appellant as per Ext.A1. It is also contended by the learned counsel that the first appellate court was right on facts and evidence in reversing finding of the trial court as to possession of the property. Learned counsel submits that the suit property as identified by the Advocate Commissioner takes in a building but there is no reference to the building in Ext.A1, assignment deed relied on by the appellant. It is also 4 RSA No.147/2006 contended by the learned counsel that Exts.B1 to B4 and B8 show that the building in the suit property was assessed in the name of the mother of the respondents and only after institution of the suit appellant was able to get an assessment of that building in her name. In the circumstances there is no reason to interfere with the finding regarding possession entered by the first appellate court, it is argued. 8. It is by virtue of Ext.A1, assignment deed No.1277 of 1974 that the appellant claims possession of the suit property. The said assignment deed is executed by one Narayanan Nair (who claims to have acquired title and possession as per Ext.B13) concerning the 17 Ares (42 cents) in R.S.No.216/1 in favour of the husband of the appellant. Appellant, along with her children claims title and possession of the suit property by inheritance consequent to the death of her husband. 9. It is seen from the plaint that the suit is merely one for prohibitory injunction on the strength of possession paying court fee under Sec.27(c) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). Hence, what is relevant for decision is only the possession claimed by the appellant. May be, it becomes necessary to refer to the title deed to decide the dispute as to possession. The Supreme Court in **Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. And others ((2008) 4 SCC 594)** has held that when in a suit for injunction based on possession complicated questions relating to title is involved, parties can to be relegated to a comprehensive suit on title and that it is not necessary to decide upon issues regarding title in a simple suit for 5 RSA No.147/2006 injunction. I must also notice that notwithstanding the dispute as to like, appellant has not paid court fee as per Sec.27(a) of the Act. Bearing the above principle in mind I shall refer to the documents the contestants have produced. 10. I referred to the claim made by the appellant as per Ext.A1. Ext.B13 is its prior document of the year, 1190. Respondents have a contention that Ext.B13 is a bogus document in that, that document does not say how the assignor under Ext.B13 got title and possession of the property. This contention is however resisted by the learned counsel for appellant. According to the learned counsel, Ext.B13 is sufficient to convey title and possession to the assignor of the husband of the appellant who executed Ext.A1. Ext.B13 refers to 42 cents which Narayanan Nair claims to have acquired title and possession. 11. Exts.B11, B12 and B14 to B16 are the documents of title in favour of mother of the respondents. Ext.B11 concerns 84 cents which according to the appellant is situated on the extreme east. Ext.B12 (allegedly) concerns 50 cents on the immediate west of the said 84 cents. Ext.B14 (allegedly) concerns 71 cents on the further west of the 50 cents covered by Ext.B12. I may pause for a moment here and say that according to the appellant, the suit property covered by Ext.A1 lies between the properties covered by Exts.B12 and B14. Exts.B15 and B16 (allegedly) concern 55 and 50 cents on the further west of the property covered by Ext.B14. Going by Exts.B11, B12, B14 to B16, the total extent would come to 3.12 Acres. 6 RSA No.147/2006 12. The mother of the respondents executed Ext.B17, gift deed in favour of the 1[st] respondent (allegedly) concerning the 1.05 Acres referred to in Exts.B15 and B16. 1[st] respondent (allegedly) assigned that property to the 2[nd] respondent as per Ext.B18. 13. Ext.B7 is Will No.93 of 1988 (allegedly) executed by the parents of the respondents. As per that Will, the B schedule therein which takes in 2.27 Acres is bequeathed in favour of the 2[nd] respondent. The leaned counsel for the appellant contends that Exts.B17 and B7 taken together, would relate to 3.32 Acres while, as per Exts.B11, B12 and B14 to B16, the mother of respondents claims title and possession of only 3.12 Acres. Attempt of the learned counsel is to show that the disposition made as per Exts.B17 and B7 is not correct. 14. The Advocate Commissioner in Ext.C1(a) has identified the property referred to in Ext.A1 as plot, ABCDA and the property referred in Ext.B7, as plot, HABEFCGH. On looking at Ext.C1(a) it would appear that if the said identification of the Advocate Commissioner were correct, plot ABCDA (referred to in Ext.A1) lies within plot HABEFCGH referred in the B schedule of Ext.B7. 15. On hearing learned counsel on both sides and going through the records I find that there is some dispute regarding title which is required to be resolved in a comprehensive suit. Since the suit is merely for injunction based on possession paying court fee under Sec.27(c) of the Act and in the light of the decision of the Supreme Court, I need not venture to resolve the issue 7 RSA No.147/2006 regarding title in this appeal. I need only address the question of possession appellant has claimed over the suit property. 16. So far as claim of possession is concerned, in view of the dispute regarding title it may not be appropriate to decide that question merely based on the documents of title relied on by the parties. It is admitted that there is a building situated in the suit property and going by Exts.B1 to B4 and B8 which relate to the assessment prior to the institution of the suit, that building is assessed in the name of the mother of respondents (who executed Exts.B7 and B17). It is argued by the learned counsel for respondents that since there is no reference to any building in Ext.A1, the building in the suit property could have come into existence only after Ext.A1. A further contention the learned counsel for respondents raised is that there is no evidence adduced by the appellant to show that either she, or her husband after (allegedly) acquiring the property as per Ext.A1 constructed the building. It is also pointed out by the learned counsel that in Ext.C1, the Advocate Commissioner has reported that the entire property including the property claimed by the appellant as per Ext.A1 lie contiguous and comprised in R.S.No.216/1. 17. It is not shown that there is any specific boundary for the suit property referred to in Ext.A1 from the properties on the east and west claimed by the respondents. First appellate court on a re-appraisal of the evidence found against the claim of possession made by the appellant. In that view of the matter the first appellate court was right in deciding the issue regarding possession against the appellant and reversing the judgment and decree of the trial court. 8 RSA No.147/2006 18. The learned counsel for the appellant points out from the judgment of the first appellate court that the said court has referred to the title claimed by the appellant to say that appellant has no title over the property. It is also submitted by the learned counsel that the finding of the first appellate court that the suit property is not properly identified is not correct in view of Ext.C1 and C1 (a). 19. So far as the finding entered by the courts below as to the title claimed by the parties as regards the disputed property is concerned, I vacate those findings and leave it open so that the parties could agitate that issue in a comprehensive suit. 20. So far as the finding regarding identity of the property is concerned, I make it clear that what the trial court has referred is only that the Advocate Commissioner has shown in Ext.C1(a) the property which the appellant claims as per Ext.A1. That finding will stand in substitution of the finding if any entered by the first appellate court as to identification of the property and will stand confined to the decision of this case. I make it clear that in case a comprehensive suit on title is filed by either of the parties seeking appropriate relief, it will be open to the parties to raise appropriate contentions as to the identification of the property covered by Ext.A1. 21. The substantial questions of law framed are answered in the above lines. Resultantly the Second Appeal is disposed of as under: 9 RSA No.147/2006 i. The findings entered by the courts below as to the title of the suit property claimed by the parties are vacated and that question is left open for decision in a properly instituted suit. ii. It is made clear that the finding regarding identity of the suit property made by the trial court is only to the effect that the Advocate Commissioner has shown the property referred to in Ext.A1 as plot ABCDA in Ext.C1(a). iii. The finding if any entered by the first appellate court as to identity of the property will stand modified to the above extent. iv. It is further made clear that it will be open to the parties to dispute identification of the property if it arises for decision in the suit on title that the parties may institute. v. The finding entered by the first appellate court that the appellant was not able to prove possession of the property will stand confirmed. vi. Subject to the above directions and findings, Second Appeal will stand dismissed in confirmation of the dismissal of the suit by judgment and decree of the first appellate court. vii. Parties shall suffer their costs through out. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**