K N Sree Devi and Lakshmanan v Ammukkutty

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 SA.No. 15 of 1997(B) ------------------AS.148/1993 of II ADDL. DISTRICT COURT, PALAKKAD OS.343/1988 of PRL.MUNSIFF COURT, PALAKKAD .................... ## APPELLANTS/PLAINTIFFS: ---------------------- 1. K N SREEDEVI, D/O. NARAYANAN EZHUTHASSAN, RESIDING AT PUTHUSSERRY AMSOM & DESOM, PALAKKAD TALUK AND DISTRICT. 2. LAKSHMANAN, S/O. KRISHNAN AKKARAKAVIL HOUSE, MATHUR AMSOM, AALATHUR TALUK PALAKKAD DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI. P T GIRIJAN ## RESPONDENT/DEFENDANT: - --------------- AMMUKKUTTY D/O. VELU EZHUTHASSAN RESIDING AT PUDUSSERRY AMSOM & DESOM P.O. PUDUSSERRY - 678 007., PALAKKAD TALUK AND DISTRICT. BY GOVT. PLEADER, SHRI. L. G. SURESH BABU ADV. SRI.K.VINOD CHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON 13/01/2010 DELIVERED THE FOLLOWING: ## **M.L. JOSEPH FRANCIS, J.** - - - - - - - - - - - - - - - - - - - - - - S.A.No. 15 of 1997 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2010 ## **JUDGMENT** This appeal is filed by the plaintiffs in O.S. No. 343 of 1988 on the file of the Munsiff Court, Palakkad. The respondent herein is the defendant in that suit, which was filed for declaration and injunction. 2. The case of the plaintiffs in brief is that the plaint schedule property originally belonged to one Meera Sahib Rawther and he was in possession of the same. He obtained purchase certificate in 1975. He sold the property to the first plaintiff on 3.10.1977 as per Ext.A1. 3. The defendant had filed a suit, O.S.No. 146 of 1974 before the Sub Court, Palakkad for partition against the husband of the first plaintiff. The said suit was decreed 2 ## S.A.No. 15 of 1997 and in the final decree proceedings, the Commissioner visited the property for partition. The defendant or any other person had no right or possession over the plaint schedule property. The title and possession over the plaint schedule property was obtained by the first plaintiff as per Ext.A1. 4. The defendant filed an application for execution of the decree in O.S.No. 146 of 1974. Amin came to the property for effecting the delivery on 26.3.1988. In fact the defendant or her predecessors in interest had no possession or right over the plaint schedule property. Therefore, Suit, O.S. No. 343 of 1988, was filed for a declaration that the plaint schedule property is in the exclusive possession and enjoyment of the first plaintiff and also for an injunction to restrain the defendant from executing the decree in O.S.No. 146 of 1974. 5. The defendant filed a written statement denying the right of Meera Sahib Rawther and contended that the said property was in the possession of the husband of the plaintiff, 3 ## S.A.No. 15 of 1997 who is the brother of the defendant and he was in possession of the property for an on behalf of the other sharers. The Purchase Certificate alleged to have been obtained by Meera Sahib Rawther was not binding on her, it was submitted. 6. The first plaintiff and the first defendant were examined as PW1 and DW1 respectively and Exts. A1 to A5, B1 and X1 were marked. The trial court, on considering the evidence, found that the plaintiffs have got title and possession over the property as per Ext.A1, but rejected the prayer for injunction on the basis of Section 41(b) of the Specific Relief Act. 7. The plaintiffs filed an appeal before the District Court, Palakkad as A.S. No. 148 of 1993, which was dismissed concurring with the judgment and decree of the Munsiff Court. Aggrieved by that judgment and decree in A.S.No. 148 of 1993 the plaintiffs filed this appeal. 8. The following substantial questions of law arise for consideration in this appeal. S.A.No. 15 of 1997 4 “(i) Having found that the decree passed by the Sub Court is not binding on the plaintiffs in the suit filed in the Munsiff Court (the first plaintiff or her predecessor were not parties to the suit filed in the Sub Court) were the courts below justified in negativing the prayer for dispossession? (ii) Even if the injunction against dispossession of the plaintiffs is not claimed as such, when the pleadings and evidence in the case entitles the plaintiffs to get that relief, were the courts below justified in negativing the relief against dispossession, more so, when the defendant is not taken by surprise? (iii) Are the courts below justified in not granting the relief against dispossession from the suit properties, when title and possession has been found in favour of the plaintiffs? (iv) When the relief against dispossession arises from the context of plaint and cause of S.A.No. 15 of 1997 5 action and when that relief is not larger than the relief claimed in the suit, are the Courts justified in negativing that claim, when Order 7 Rule 7 empowers the courts to grant the lesser relief?” 9. Heard the learned counsel for the appellants. The learned counsel for the appellants invited my attention to the decision reported in **Municipal Board, Meerut v. Bir Singh and others** (AIR 1965 Allahabad 527), in which it was held in paragraph 43 as follows: “(43). Section 56, Specific Relief Act, contains a number of clauses. The defendants relied on different clauses of S.56 at different stages. Mr. Shanti Bhushana replied on clause (b) of S.56. According to clause (b) of S.56 Specific Relief Act, an injunction cannot be granted to stay proceedings in a court not subordinate to that from which the injunction is sought. In the first place, the defendants did not S.A.No. 15 of 1997 6 plead the bar of cl.(b) of S.56 in their written statement. Secondly, the Civil Judge, who tried the present suit, is higher in rank than the Munsiff, who passed the order for restitution. Even if there is some difficulty in holding that the Munsiff is subordinate to the Civil Judge, there is no doubt that the Munsiff is subordinate to the High Court. Even if the Civil Judge was incompetent to grant an order of injunction, it is open to the High Court to grant an injunction restraining the defendants from enforcing an order for restitution passed by the Munsiff in their favour.” 10. That decision is not applicable to the facts of the present case. In that case, the suit was filed before the Civil Judge, who is higher in rank than the Munsiff to restrain the defendants from enforcing an order for restitution passed by the Munsiff in their favour. In the present case, the suit was filed before the Munsiff Court for an injunction to restrain the 7 S.A.No. 15 of 1997 defendants from proceeding with the execution of the partition decree passed by the Sub Court, which is higher in rank than the Munsiff Court. 11. The learned counsel for the appellants invited my attention to the decision of the Apex Court reported in **Firm Sriniwas Ram Kumar v. Mahabir Prasad and ors** . (AIR 1951 SC 177), in which it was held: “A plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent acts of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written S.A.No. 15 of 1997 8 statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to a separate suit. Thus, where in a suit for specific performance of a contract, in part performance of which the plaintiff alleges to have paid the defendant some money, the defendant denies the contract and pleads that the money was taken by him as a loan, the Court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the S.A.No. 15 of 1997 9 plaintiff had failed to plead and claim relief on, this alternative case.” 12. That decision is also not applicable to the facts of the present case. In this case, the defendant categorically denied the title of the plaintiffs over the plaint schedule property and there is no finding that the decree in O.S.No. 146 of 1974 on the file of the Sub Court, Palakkad is invalid. 13. In a declaratory suit, whether governed by the provisions of Section 34 of Specific Relief Act, 1963 or not, the principles embodied in Section 41(b) of the Specific Relief Act is equally applicable. Section 41(b) of the Specific Relief Act denies the court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a court, which is not subordinate to the Court, from which the injunction is sought. 10 ## S.A.No. 15 of 1997 14. The powers of courts hearing appeals from orders have been set out in sub section (1) of Section 107 C.P.C. Clause (2) of Section 107 C.P.C. lays down that the appellate court shall have the same power and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction in respect of suits instituted therein. Therefore, if the trial court has no jurisdiction to grant injunction referred to in Section 41(b) of the Specific Relief Act, the appellate court does not possess the jurisdiction to grant such injunction. Granting of decree restraining the defendant from dispossessing the plaintiffs will tantamount to granting of an injunction restraining the defendant from dispossessing the plaintiffs in execution of the decree of the Sub Court, which is also coming under the purview of Section 41(b) of the Specific Relief Act. Therefore, I am of the view that the trial court and the appellate court are fully justified in refusing to 11 S.A.No. 15 of 1997 grant injunction. In that view of the matter, this appeal has to be dismissed, as it is without any merit. 15. Accordingly, this appeal is dismissed. There is no order as to cost. **(M.L. JOSEPH FRANCIS)** Judge tm