K. Ambunhi v. C.T. Krishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932** **SA.No. 937 of 1998()** **--------------------** **AS.45/1996 of SUB COURT, HOSDRUG OS.217/1995 of MUNSIFF'S COURT, HOSDRUG** **....................** **APPELLANT(S) IN SA:APPELLANT IN THE LOWER APPELLATE COURT/ PLAINTIFF IN SUIT:** **-------------------------------------------------------------** **K.AMBUNHI, S/O. AMBUNHI, RESIDING AT CHERALAM, THAYANUR VILLAGE, HOSDURG TALUK, P.O. KALICHANADUKKAM.** **BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, BY ADV. SRI. P.B.KRISHNAN.** **RESPONDENT(S) IN SA:RESPONDENTS 2 TO 9 IN THE LOWER APPELLATE COURT - DEFENDANT NO.2 & LEGAL** **REPRESENTATIVES OF DEFENDANT NO.1 IN SUIT:** **-------------------------------------------------------------------------------------------------------------** **1. C.T. KRISHNAN, S/O.RAMAN RESIDING AT MALATHIL, THAYANNUR VILLAGE, HOSDURG TALUK, P.O.THANNUR.** **2. AMINI, W/O.AMBADY, RESIDING AT MALATHIL, THAYANNUR VILLAGE, HOSDURG TALUK, P.O. THANOOR.** **3. THANKAMANI, D/O....DO..., RESIDING AT PALAYI VEEDU, PALATHADAM, PEROLE VILLAGE, HOSDURG TALUK, P.O. PUTHARIYADUKKAM.** **..2/-** **Kss** **..2....** ## **SA.NO.937/1998** **4. M.MADHU, S/O..DO... RESIDING AT MALATHIL, THAYANUR VILLAGE, HOSDURG TALUK, P.O. THANOOR.** **5. M.DEVARAJAN, S/O..DO... IN ...DO...DO....** **6. PRASANNAN, S/O..DO...IN DO...DO.....** **7. SANITHA, D/O....DO...IN ...DO..DO....** **8. MINOR SUMALATHA, D/O...DO.... AGED 15, IN ..DO... REPRESENTED BY GUARDIAN HER MOTHER RESPONDENT NO.2.** - **BY ADVS. SRI.D.KRISHNA PRASAD, SRI.M.HARISHARMA.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2011, THE COURT ON 11/01/2011 DELIVERED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 937 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2011. ## **JUDGMENT** The plaintiff in O.S. 217 of 1995 before the Munsiff's Court, Hosdrug, who was non-suited by both the courts below, is the appellant. 2. According to the plaintiff, plaint schedule property originally belonged in jenm to Alathady Maloor Kunhambu Nair. The plaintiff claims to have obtained it on lease and claims to have been in possession and enjoyment of the same. He has effected improvements in the property and he has obtained purchase certificate also. The plaintiff and his family reside in the house in the property and the defendants owned property on the northern side of plaint schedule property. The plaintiff would assert that the two properties are separated by well demarcated boundaries. It is alleged that when the plaintiff tried to take usufructus from the property, the S.A. 937/1998. 2 defendants, raising unfounded claims, tried to obstruct and hence the suit. 3. The defendants resisted the suit by pointing out that the plaintiff had neither title nor possession over the suit property. It was conceded that the property belonged to Alathady Maloor Tarwad but the karanavan of the tarwad was one Koman Nair. According to the defendants, their tarwad had obtained 3.84 acres of land including the plaint schedule property from the said tarward as per a lease dated 15.1.1950. The plaintiff and the defendants are closely related. The first defendant had instituted the suit O.S. 215 of 1974, wherein the predecessor in interest of the plaintiff was a party. The suit ended in favour of the first defendant and that was confirmed in appeal and second appeal. During the pendency of the said suit, a receiver had been appointed and the receiver had taken possession of the entire property including the plaint schedule property. The claim of the plaintiff that he was residing in the property was disputed and it was contended that the plaintiff has no S.A. 937/1998. 3 manner of right whatsoever over the property. On the basis of these contentions, the defendants prayed for a dismissal of the suit. 4. Based on the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants examined D.Ws. 1 and 2 and had Exts. B1 to B9 marked. Exts. X1, X1 (a) and X2 are third party exhibits. On an evaluation of the evidence, the trial court came to the conclusion that the plaintiff had no manner of right over the suit property and therefore dismissed the suit. The plaintiff took up the matter in appeal as A.S. 45 of 1996 before the Sub Court, Hosdrug. The lower appellate court concurred with the trial court and dismissed the appeal. Notice had been issued on the following substantial questions of law: _“(A) Whether on the facts and in the circumstances of the case, the lower appellate court was correct in law in considering the_ S.A. 937/1998. 4 _question of title of the parties in a suit for injunction simpliciter?_ _(B) Whether on the facts and in the circumstances of the case the lower appellate court was correct in law in dis-regarding the conclusive nature of the purchase certificate issued to the plaintiff under the provisions of the Kerala Land Reforms Act?_ _© Is not a dispute between persons claiming to be tenants under a common landlord to be decided by a competent land tribunal under Section 125(3) of the Kerala Land Reforms Act?_ _(D) Has not the lower appellate curt committed and error of law in finding that the lease in favour of the plaintiff is invalid in view of Section 74 of the Kerala Land Reforms Act?_ _(E) Whether on the facts and in the circumstances of the case, the lower appellate court has not erred in law in ignoring the evidence of the Advocate Receiver that he was not in possession of the entirety of R.S.281/3?_ _(F) Has not the lower appellate court committed an error of law in basing its decision stray sentences in evidence and ignoring material items of evidence?_ S.A. 937/1998. 5 _(G) Has not the plaintiff established possession of the suit properties on the date of suit?_ _(H) Is not the plaintiff entitled to a decree of injunction as claimed in the plaint?”_ 5. Sri. P.B.Krishnan, learned counsel appearing for the appellant contended that the courts below have erred in law and on facts in dismissing the suit. According to the learned counsel, there were abundant materials to show that the plaintiff was in possession of the property and was residing therein. Emphasis was laid on the fact that both the courts have erred in law in considering the title of the plaintiff over the suit property when the suit was one for injunction simplicitor. The only issue that had to be considered was whether the plaintiff was in actual possession of the property as on the date of the suit. Instead, both the courts below have gone on to decide the title without there being an issue in that regard at all. It is also pointed out that if the question of lease set up by the plaintiff was to be considered, the matter had to be referred S.A. 937/1998. 6 to the Land Tribunal as the civil court was incompetent to decide the issue. Attention was also drawn to the fact that the plaintiff had obtained a purchase certificate in respect of the property and going by Section 72K of the Kerala Land Reforms Act the plaintiff has conclusive right, title and interest over the suit property. Relying on the decision reported in **Lakshmi v. Viswanathan** (1999(2) K.L.T. 621), it is contended that purchase certificate is conclusive proof of possession of the plaintiff of the suit property. Reliance was also placed on the decision reported in **Ahmmed Kutty v. Mariakutty Umma** (2000(1) K.L.T. 829). Learned counsel also relied on the decisions reported in **Rame Gowda v. M.Varadappa Naidu** (2004 SAR (Civil) 107), **Sopan Sukhde Sable v. Assistant Charity Commissioner** (2004 SAR (Civil) 228) and Anathula **Sudhakar v. P. Buchi Reddy (Dead) Lrs.** (2008 SAR (Civil) 878) for the proposition that in a suit for injunction, the only issue that has to be considered is one of possession. Dilating on the principles laid down in these S.A. 937/1998. 7 decisions, it is also contended that there may be circumstances in which an injunction may lie even against the true owner of the property. 6. Per contra, learned counsel appearing for the respondents pointed out that there is absolutely no merit in the second appeal at all. According to the learned counsel, both the courts have concurrently found that the plaintiff has neither title nor possession over the suit property. The courts below have evaluated the evidence on record and have come to the conclusion that the plaintiff has not succeeded in establishing his case. It is contended that the decision appears to be based on the evidence and no substantial question of law is involved. Accordingly, it is contended that the appeal may be dismissed. 7. The suit is one for injunction simplicitor. As rightly pointed out by the learned counsel for the appellant, the only issue was regarding the possession of the plaintiff as on the date of the suit. It is true that the possession of the plaintiff is based on lease said to have been obtained by 8 S.A. 937/1998. him from one Kunhambu Nair of Alathady Maloor tarwad. The plaintiff has also put forward a purchase certificate in support of his plea. The defendants also set up a rival tenancy. In fact the dispute regarding the title is between the rival claimants. If the issue of title was to be gone into, as rightly pointed out by the learned for the appellant, necessarily the matter had to be referred to the Land Tribunal. But as already noticed, the suit being one for injunction simplicitor, one is only concerned with the actual physical possession of the property as on the date of the suit. 8. The trial court has come to the conclusion that the plaintiff has no idea about the suit property and that should go against him. It also spoke about the boundaries of the properties and also came to the conclusion that the plaintiff has come to the court without even properly locating his property. As regards the various documents produced by the plaintiff, i.e., the ration card, electoral card, voters' list etc., the trial court held that there is no evidence S.A. 937/1998. 9 at all to show that those documents relate to the house situate in the property. The lower appellate court took aid of Exts.B1 and B1(a) which are receipts said to have been issued by the receiver appointed in O.S.215 of 1974 to the first defendant for having taken usufructus from the property while the receiver was in management of the same. On the basis of these conclusions, the trial court held against the plaintiff. 9. The lower appellate court was mainly concerned with the question of lease. It came to the conclusion that the alleged lease has not been proved by the plaintiff. Then in a short paragraph, it disposed of the appeal by observing that the finding of the trial court as regards the other documents are justified. 10. Learned counsel for the appellant has a complaint that the lower appellate court has not independently considered the various documents produced by the plaintiff, which would show that he was in actual possession of the property, even assuming that the lease S.A. 937/1998. 10 put forward by the plaintiff has not been established. There was no independent consideration of the electoral card, the purchase certificate etc., by the lower appellate court. It could not have been lightly brushed aside. 11. There seems to be some substance in the above grievance. While the trial court has rejected the various documents produced by the plaintiff to show his possession over the suit property on the ground that there is nothing to show that they relate to the suit property and also on the ground that the plaintiff has no definite idea about the property, the lower appellate court has mainly gone on the premise that the plaintiff was unsuccessful in proving the lease. 12. Learned counsel appearing for the respondents did not dispute that the core issue in the suit is regarding the possession as on the date of the suit. Learned counsel for the respondents also did not dispute the proposition laid down in the various decisions relied on by the learned counsel for the appellant. It is pointed out by 11 S.A. 937/1998. the learned counsel for the respondents that the purchase certificate cannot be relied on for various reasons. Even assuming that the question of tenancy cannot be gone into, according to learned counsels the plaintiff has failed to prove his possession as on the date of the suit. 13. One needs to notice that infact the identity of the property may not be much in dispute. D.W.1 has admitted that the boundaries shown in the plaint are correct. Therefore, even assuming that there were some infirmities in the evidence regarding the actual location of the property, it may not be very material in the light of the fact that there was no identity crisis of the property in the suit. The parties knew very well as to the property in respect of which the dispute arose. 14. In the plaint, it is specifically averred that there was a house in the property initially bearing Door No. 454 and later the number was changed to VIII-519 of Kodom-Beloor Panchayat. Learned counsel for the appellant pointed out that this specific averment in the plaint has not 12 S.A. 937/1998. been disputed in the written statement and therefore the trial court was not justified in discarding the evidence produced regarding the occupation of the house in the property by the plaintiff on the ground that there is nothing to show that it relates to the house in the suit property. 15. There can be no doubt that the burden is on the plaintiff to show that the records produced by him relate to the suit property. Of course, there is evidence of the receiver, who is examined as D.W.1, who says that he has taken possession of the property as per the direction of the court in O.S. 215 of 1974. He also admits that Exts. B1(a) and B1(b) are the receipts issued by him. It is no doubt true that going by the receipts, the property comprised in Sy. No.281/3A is also taken in. But the receiver was unable to say whether the entire extent of the property in the said survey number has been taken possession of by him in pursuance of the order of the court. At any rate, he admits that there was a house and a shed in the property and that he had not taken possession of the same. S.A. 937/1998. 13 16. Neither side was able to point out as to what was the fate of the partition suit, in which the receiver was appointed and whether a final decree had infact been passed. All that is contended by the defendants is that the receiver was discharged and the defendants came into possession of the property. There is no specific contention either in the written statement or in the evidence to show that the receiver had handed over possession to them. In fact there is some lacuna in the claim made in that regard by the defendants. 17. Of course, the plaintiff could have produced more evidence. But the lower appellate court has not actually considered the effect of Exts.A5, A6, A7, A8, A9, A10, A11, A12 and A13 etc. The discussion of the evidence contained in paragraph 9 of the judgment. Exts. A5 to A13 is considered and rejected with an observation that these documents are not sufficient to come to a conclusive conclusion that the plaintiff is in possession of the suit S.A. 937/1998. 14 property. The plaintiff is found fault with for not informing the local authority about the construction of his new house. 18. There is no finding by the lower appellate court that the various documents produced by the plaintiff in support of his claim for possession does not relate to the suit property. In fact there is no consideration of the documents from that angle at all. One fails to understand as to what the lower appellate court meant by saying that Exts. A5 to A13 were not sufficient to come to a definite conclusion regarding the possession of the plaintiff. So also the purchase certificate obtained by the plaintiff could not have been discarded by the lower appellate court without giving reasons. What is interesting is that neither of the courts have found that the said document do not actually relate to the suit property at all. How far it is binding on the defendants is a different question. 19. Learned counsel appearing for the appellant is therefore perfectly justified in contending that the lower appellate court has not considered the materials on record S.A. 937/1998. 15 and has simply rejected the claim of the plaintiff on the basis that the documents produced by him are not sufficient to prove his conclusive possession. There is no finding by the lower appellate court or by the trial court that the electoral card, voters' list etc relate to some other house or residence and that it does not relate to the house mentioned by the plaintiff in his plaint as well as in his evidence. It is here that one has to remember that the receiver in O.S.215 of 1974 has categorically stated that he had not taken possession of the house and the shed in the property. But of course, it is true that there is considerable evidence in this case that the plaintiff is putting up or has infact put up a new house in his property, which is on the southern side of the plaint schedule property. Neither side had taken steps to have the documents produced from the local authority to show that there was infact a house in the plaint schedule property and that the plaintiff was residing therein. However, the plaintiff has produced some documents to show that he was residing in a house in the plaint schedule property, but S.A. 937/1998. 16 whether they are true or not has to be considered by the lower appellate court. 20. In the light of the fact that the lower appellate court has not considered the various documents in the proper perspective, it is felt that the lower appellate court has to consider the matter afresh in the light of what has been stated above. In the result, this appeal is allowed, the judgment and decree of the lower appellate court is set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the lower appellate court on 9.2.2011. Office shall send back the records forthwith. There will be no order as to costs in this appeal. ## **P. BHAVADASAN, JUDGE** sb.