Kabeer S/O Ali Rawther v. Wahab S/O Ali Rawther and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** ## **RSA.No. 199 of 2008 (F)** **-----------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 77/2003 OF II ADDL.DISTRICT COURT, PALAKKAD DATED 04-08-2007)** **(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 32/2001 OF MUNSIFF COURT, CHITTUR DATED 29-11-2002)** **--------------** ## **APPELLANT/1ST APPELLANT/2ND DEFENDANT:** **-----------------------------------------------------------------------** **KABEER, S/O.ALI RAWTHER, RESIDING AT POONTHONY, PUDUNAGARAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON** **SRI.JIBU P THOMAS SRI.P.S.APPU** **RESPONDENT(S)/RESPONDENT/APPELLANTS 2 TO 8 PLAINTIFF/DEFENDANTS 3 TO 8:** **---------------------------------------------------------------------------------** **1. WAHAB, S/O. ALI RAWTHER, RESIDING AT VYDYASALA,** **VADAVANNUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **2. LATHEEF, S/O.ALI RAWTHER.** ## **3. HABEBULLA, S/O.ALI RAWTHER.** ## **4. RAFI UMMA, W/O.LATE MUHAMMED MAHADOON.** ## **5. KAJA HUSSAIN, S/O.RAFI UMMA.** ## **6. JANNATHUNEESA, D/O.RAFI UMMA.** ## **7. HAKKIM, S/O.RAFI UMMA.** **2/-** **sts** **-2-** **R.S.A.NO.199/2008** **8. ABBAS, S/O.RAFI UMMA,** **RESPONDENTS 2 TO 8 ARE RESIDING AT POONTHONY, PUDUNAGARAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **R1 BY ADVS. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE** **SMT.O.K.SANTHA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------** ## **R.S.A.No.199 of 2008** **-----------------------------------------------Dated this the 19[th] day of February, 2016** ## **JUDGMENT** The second defendant in a suit for injunction is the appellant in this second appeal. 2. The case of the plaintiff is that the suit property was obtained by him by virtue of Ext.A1 assignment deed and that he is in possession of the same. According to the plaintiff, the defendants who are his brothers are attempting to trespass into the suit property and hence the suit. The defendants resisted the suit, contending that even before the plaintiff acquired title to the property as per Ext.A1, their father Mohammedali Rawther was in possession of the property as a lessee and that they R.S.A.No.199 of 2008 2 have come in possession of the suit property on that basis. According to the defendants, the plaintiff has not obtained possession exclusively over the suit property and therefore, he is not entitled to the decree of injunction sought in the suit. The trial court accepted the case of the plaintiff and decreed the suit. Though the defendants took up the matter in appeal, the appellate court confirmed the decision of the trial court and hence this second appeal. 3. Heard the learned counsel for the appellant as also the learned counsel for the first respondent/plaintiff. 4. The learned counsel for the appellant, relying on Exts.B1 to B3 documents, contended that the said documents would show that the plaintiff was not in possession of the suit property pursuant to Ext.A1 lease deed and that his father Mohammedali Rawther was in possession of the property. According to the learned counsel, once it is established that the plaintiff was not in R.S.A.No.199 of 2008 3 possession of the property pursuant to Ext.A1 assignment deed, he is not entitled to the decree sought in the suit. 5. Ext.A1 is the document by which the plaintiff claims title to the plaint schedule property. Ext.A1 recites categorically that the suit property was leased out to the plaintiff by the landlords in the year 1978 and that he is in possession of the same on the basis of the said lease. In the light of Ext.A1, the contention raised by the defendants that their father, Mohammedali Rawther, was in possession of the property cannot be accepted. Now, I shall deal with the documents relied on by the defendants in support of their contention that Mohammedali Rawther was in possession of the property. Ext.B1 is the receipt issued by the concerned Grama Panchayath in the name of Mohammedali Rawther evidencing payment of professional tax for the period 198283. Ext.B1(a) is another receipt issued in the name of Mohammedali Rawther evidencing payment of professional R.S.A.No.199 of 2008 4 tax for the period 1983-84. Ext.B1(b) is the copy of the receipt evidencing payment of licence fee by Mohammedali Rawther in respect of the business carried on by him. Ext.B1 (c) is also the receipt evidencing payment of licence fee given by Mohammedali Rawther. Ext.B2 is the relevant page of the advance licence fees demand register maintained by Vadavanur Grama Panchayath. It is seen from Ext.B2 document that Mohammedali Rawther has obtained licence from the said Grama Panchayath for sale of firewood. Ext.B3 is the relevant page of the property tax assessment register pertaining to building No.215 of Vadavanur Grama Panchayath. There is nothing on record to connect the aforesaid documents with the plaint schedule property. Even assuming that the aforesaid documents are documents issued in the name of Mohammedali Rawther in respect of the business carried on in the plaint schedule property, I do not think that the defendants will be able to R.S.A.No.199 of 2008 5 contend based on the said documents that they are in possession of the suit property. They cannot also claim that they are in possession of the property under Mohammedali Rawther as Mohammedali Rawther was very much alive at the time of institution of the suit. 6. The learned counsel for the appellant contended that the defendants have raised a plea in the written statement that the property in question was leased out by the original owners to Mohammedali Rawther for commercial purpose and that therefore, they are entitled to protection of Section 106 of the Land Reforms Act. According to the learned counsel, in so far as such a contention was raised by the defendants, it was obligatory for the court to make a reference of the said issue to the Land Tribunal. I do not find any merit in this argument. At the outset, there is nothing on record to indicate that there was a lease in favour of the defendants in respect of R.S.A.No.199 of 2008 6 the suit property. In the absence of any evidence to show that the defendants are holding the property under a lease arrangement, the question of claiming the benefit of Section 106 of the Land Reforms Act does not arise. Even otherwise, the said question is not a question that has to be referred for adjudication to the Land Tribunal under Section 125(3) of the said Act in the light of the decision of this Court in _**Sri Durga Talkies v. Shashi Kumar**_ [2010 (1) KLT (SN) 51]. In the said view of the matter, there is no merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed. ## **P.B.SURESH KUMAR, JUDGE.** smm