K. Hamza v. Kavilkandy Basheer, Kavilkandy Mehaboob and Kavilkandy Subaida

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI TUESDAY, THE 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945 ## RSA NO. 1002 OF 2003 AGAINST THE JUDGMENT IN AS 40/1996 OF THE PRINCIPAL SUB-COURT / ## COMMERCIAL COURT, KOZHIKODE OS 559/1992 OF PRINCIPAL MUNSIFF COURT ,KOZHIKODE-II ## APPELLANT/S: K.HAMZA, AGED 49 YEARS S/O.KUNHALIKUTTY, AGED 49, KAVILKANDY HOUSE, P.O.FEROKE COLLEGE, KOZHIKODE DISTRICT. BY SR ADVSRI S SREEKUMAR; SRI.V.N.RAMESAN NAMBISAN ## RESPONDENT/S: - 1 KAVILKANDY BASHEER, S/O.ABDULLA KOYA, P.O.FEROKE COLLEGE. - 2 KAVILKANDY MEHABOOB, S/O.ABDULLA KOYA. - 3 KAVILKANDY SUBAIDA, D/O.ABDULLA KOYA. (ALL RESIDING AT VELIPROM AMSOM DESOM, KOZHIKODE TALUK). BY ADVS.SMT.K.P.AMBIKA; SRI.P.K.IBRAHIM ## OTHER PRESENT: s sreekumar (sr)-appellant THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.S.A. No.1002/2003** **-2-** ## J U D G M E N T The appellant is the plaintiff in O.S. No. 559/1992 on the file of the Court of Munsiff of Kozhikode II. The suit is filed for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff of the plaint schedule property. The plaint schedule property consists of 1[st] Thak of East-West 5 ½ South-North 3 ¼ feet, 2[nd] Thak towards the east East-West 4, South-North 12 feet and 3[rd] Thak North-East of 2[nd] Thak portion, East-West 130 and SouthNorth 10 feet of a house—total hectares 0.034. 2. The chronology of events is first referred to before adverting to the case pleaded by the plaintiff and the defendants. One Abdullakoya admittedly was the owner and possessor of the plaint schedule property. On 03.08.1984, Abdullakoya admittedly executed a settlement deed in favour **R.S.A. No.1002/2003** **-3-** of Abdul Azeez and the defendants. On 05.03.1986, it is alleged that Abdullakoya unilaterally executed a deed, cancelling the deed dated 03.08.1984. On 23.12.1991, the said Abdullakoya executed a jenm assignment in favour of the plaintiff. This being the admitted chronology of the case, I now refer to the case of the plaintiff. 3. The plaintiff purchased the property for a way to his house on the western side of the plaint schedule. After the sale in favour of the plaintiff from Abdullakoya, the plaintiff claimed actual physical possession of the property. The defendants reside in the residential block on the northern side of the plaint schedule. The defendants have no manner of right over the plaint schedule property. On 16.07.1992, the defendants attempted to trespass into the plaint schedule property and possess the plaint schedule. However, the defendants' attempts were unsuccessful, and the plaintiff claims to continue possessing the plaint schedule property **R.S.A. No.1002/2003** **-4-** despite the defendants' open and hostile alleged interference. Hence, the suit for perpetual injunction. 4. The defendants, in the written statement, among other averments, have specifically stated that the plaint schedule property is in their possession and enjoyment. The Power of Attorney (Ext.A1) does not give a semblance of right to the plaintiff to file a suit against the defendant. The defendant's father is the vendor (Abdullakoya) of the Ext.A2 sale deed. Abdullakoya executed the settlement deed dated 03.08.1984 and handed over vacant possession in favour of the defendants in furtherance of the said settlement deed. The defendants claim to be in possession and enjoyment of the plaint schedule property. As a few differences have arisen between Abdullakoya and the defendants, the cancellation deed has been executed without recourse to the process of law and unilateral cancellation is not valid and legal. The defendants continue to be in possession of the property. **R.S.A. No.1002/2003** **-5-** Therefore, the suit for injunction is liable to be dismissed. 5. The trial court framed the following issues for consideration: “1. Whether the plaintiff has got any title or possession over the plaint schedule property? 2. Whether there is any cause of action for the suit? 3. Whether the trespass alleged is true?" 4. Whether the plaintiff is entitled to a permanent injunction as prayed for? 5. What is the order as to costs?” 5.1 During the trial, the plaintiff examined himself as PW1 and got marked Exts.A1 to A5 and defendant no. 2 was examined as DW1 and Exts.B1 and B2 have been marked. Extract of Nalvazhy Village register was marked for the year 1985-1986. The trial court on issue no.1 held that the settlement deed in Ext.B1 was acted upon, and the possession was handed over to the defendants. The cancellation deed cannot be said to evidence restoration of possession unilaterally in favour of Abdullakoya. After considering the **R.S.A. No.1002/2003** **-6-** validity and the tenability of the evidence available on record, the trial court answered the issue against the plaintiff and in favour of the defendants. Consequently, the other issues found favour with the defendants and against the plaintiff. The said consideration ended in the judgment dated 18.11.1995 dismissing the suit. The plaintiff filed A.S. No. 40/1996 before the Court of the Subordinate Judge, Kozhikode, and the appellate court framed the following points for consideration : “1. Whether the finding of the lower Court that the plaintiff is not eligible for the prohibitory injunction prayed for is sustainable? 2. Whether the judgment and decree of the Court below are liable to be set aside or otherwise interfered with? 3. What is the proper order as to costs?” The appeal was dismissed by the impugned judgment dated ## 27.11.2001. Hence the Second Appeal. 6. The following questions are raised for consideration: **R.S.A. No.1002/2003** **-7-** “1) If B1 is a gift deed or only a settlement deed. If it is settlement deed only, can the executor of the same will be justified in cancelling the same by executing cancellation deed. 2) In the suit for injunction when the question of title deed was considered by the trial court, is it: not proper on the part of the court below to give a chance to the plaintiff to amend the plaint by incorporating additional pleadings based on additional documents and additional evidence. 3) Based on the available evidence records was the Court below justified in coming to the conclusion that the plaintiff failed to prove his possession of the property. 4) Is it justifiable on the part of the court below that the donees of Exhibit-B1 had acted upon the same and properties are there in their possession?” 7. We have heard the learned Senior Counsel, Mr S Sreekumar, for the appellant and perused the record. 8. Mr Sreekumar contends that the plaintiff claims possessory relief based upon their possession from admittedly the original owner Abdullakoya through Ext.A2 sale deed. The defendants resisted the suit on the strength of Ext.B1 settlement dated 03.08.1984. The settlement deed was **R.S.A. No.1002/2003** **-8-** cancelled by Ext.A4 cancellation deed dated 05.03.1986. With the cancellation deed in Ext.A4, the plaintiff’s vendor has the title. Abdullakoya has not only conveyed the title to the plaintiff but also the transfer, the possession of the plaint schedule was handed over to the plaintiff. The Courts below were over-swayed by the fact that Ext.A4 cancellation deed cannot be said to have created any legal effect on the conveyance made through Ext.B1. According to Mr Sreekumar, the consideration of the evidence by the Courts below is perverse, and the findings recorded warrant the interference of this Court under Section 100 of the Civil Procedure Code. 9. The learned Counsel appearing for the respondents would urge that the basis for Ext.A2 sale deed is the cancellation in Ext.A4 dated 05.03.1986. Unilateral cancellation cannot result in undoing everything given effect to and acted upon in terms of Ext.B1 settlement deed dated **R.S.A. No.1002/2003** **-9-** 03.08.1984. In a suit for injunction, the plaintiff is required to establish the actual and physical possession of the property. In the case on hand, the plaintiff miserably failed to prove or establish that the plaintiff was in possession of the plaint schedule on the date of filing the suit. My attention is invited to the findings of fact recorded, and it is urged that the case on hand is one filed for injunction simpliciter. The _sine qua non_ for exercising the jurisdiction of the Court is not made out. Therefore, warrants dismissal _in limine_ . 10. The suit is one for perpetual injunction restraining the defendants from interfering with the alleged possession of the plaintiff. The three ingredients by referring to which the prayer of injunction is considered are _prima facie_ case, actual possession, and balance of convenience. In a suit for perpetual injunction along with the _prima facie_ case, the actual possession of the plaintiff is also examined. The meaning of the word ‘possession’ is used in various contexts and phrases. **R.S.A. No.1002/2003** **-10-** In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the _de facto_ relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. [ _Supdt. & Remembrancer Of Legal Affairs West Bengal v. Anil Kumar Bunja_[1] ]. 11. Let me examine the argument of the learned Senior Counsel for the appellant by keeping the above-said legal principle in mind. The argument proceeds on the assumption that with the execution of the Ext.A4 cancellation deed, the original owner Abdullakoya has got back the title and possession transferred by him through Ext.B1 in favour of the defendants. Therefore, on the day Ext.A2 sale deed dated 23.12.1991 was executed, the vendor was legally entitled to and competent to execute and transfer what he had on that day together with possession. The above contention is merely > 1 1979 SCC (4) 274 **R.S.A. No.1002/2003** **-11-** noted, and, in my view, the substantial questions also revolve around the very same circumstance on which the plaintiff can claim the relief of perpetual injunction. Before considering the case pleaded by the plaintiff, I prefer to excerpt the following portion from the appellate court’s judgment. “It is true that mere mutation in the revenue records and payment of land revenue are not expected to positively prove delivery of possession of the property in pursuance of the gift deed set up by the defendants…. ….. In view of the admission by PW1 that there was delivery of possession in favour of the defendants in pursuance of Ext.B1 document, the defendants need not adduce any further evidence regarding this fact. Moreover, no documents have been produced by the plaintiff to prove that subsequent to execution of settlement deed dated 3.6.1984 and prayer to the execution of cancellation deed dated 5.3.1986, Abdulla Kɔya was exercising possession over the properties covered by that document. *** *** *** 19. Apart from the fact that the defendants have succeeded in proving that delivery of possession was followed pursuant to the execution of settlement deed dated 3.8.1984, when we are considering the evidence adduced by PW1, the contention of **R.S.A. No.1002/2003** **-12-** the defendants will appear more probable. In a civil case, the Court is also expected to consider the preponderance of probabilities.” 11.1 The above are findings of fact recorded by the appellate court. In normal circumstances, unless and until it is established how the findings of fact come within the scope of Section 100 of the Code of Civil Procedure, the consideration of the other question does not arise. Be that as it may, since an argument on the possession claimed by the plaintiff as established is also made at the Bar, I consider the said argument as follows: 11.1.1 The argument claiming actual possession is firstly erroneous and illegal. The fact of the matter is that the plaintiff himself is admitting the execution of the Ext.B1 settlement deed by Abdullakoya in favour of the defendants. The same is evident from the narrative in the plaint that Abdullakoya has, through a cancellation deed dated 05.03.1986 (Ext.A4), claimed to have annulled the settlement deed in **R.S.A. No.1002/2003** **-13-** Ext.B1. Once the plaintiff accepts the execution of the settlement deed, the plaintiff also accepts the flow of consequences emanating from such execution of the settlement deed by Abdullakoya. Unilateral cancellation cannot be treated as a trilateral transaction and presume that Abdullakoya has got back possession and the plaintiff continued to get the same standing _vis-à-vis_ the plaint schedule. The possession is inferred from the state of circumstances pleaded and proved. Here the plea in plaint belies possession, and there is no proof of actual possession. Therefore, in the same breath, the plaintiff cannot have what Abdullakoya did not hold on the date of execution of Ext.B1. The plaintiff himself since admitted that a settlement deed was executed by his vendor, i.e., Abdullakoya, it is for the plaintiff first to establish whether the possession admittedly said to have been given under Ext.B1 is restored in favour of Abdullakoya and from Abdullakoya the same has been made **R.S.A. No.1002/2003** **-14-** over to the plaintiff. At best, the cancellation in Ext.A4 is a self-serving document. Through this unilateral act, it cannot be assumed that the plaintiff’s vendor has retained actual and physical possession of the plaint schedule property. The plaintiff, since failed to prove the case as pleaded; the Appellate Court and the Trial Court were fully justified and correct in dismissing the prayer for injunction. This Court has no option except to concur with the findings of facts recorded by the Courts below and dismiss the Second Appeal by answering the substantial questions accordingly in favour of the defendants and against the plaintiff. The Regular Second Appeal is dismissed. No order as to costs. Sd/S.V.N.BHATTI CHIEF JUSTICE jjj