Krishna Kammathi v. Sakunthala Bai

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935 RSA.No. 613 of 2011 ( ) ------------------------ AGAINST THE JUDGMENT IN AS 64/2003 of SUB COURT, CHERTHALA DATED 28-02-2011 AGAINST THE JUDGMENT IN OS 645/1999 of PRL.MUNSIFF COURT, CHERTHALA DATED 31-10-2002 ## APPELLANT/RESPONDENT/DEFENDANT: ----------------------------------------------------------- KRISHNA KAMMATHI,S/O.RAMACHANDRA KAMMATHI, KAKKAREZHATHUMADAM, PADINJATTUMKARA VAAKKUM MURI, THURAVOOR NORTH VILLAGE PO , THURAVOOR . BY ADV. SRI.B.JAYASANKAR ## RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------------------- SAKUNTHALA BAI,W/O.LEKSHMANA PRABHU, MAKKINAYIL MADATHIL, KODUNGALLOOR DESOM. LOKAMALLESWARAM VILLAGE, MUKUNDAPURAM TALUK PO LAKAMALLESWARAM. R BY ADVS.SRI.R.D.SHENOY (SENIOR) SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **P.BHAVADASAN, J. ------------------------------------R.S.A.No.613 of 2011 ----------------------------------------Dated this the 21[st] day of March, 2014** ## **JUDGMENT** This appeal is by the defendant in O.S.No.645/99 who is none other than the brother of the plaintiff in the suit. 2. The suit was one for injunction. The plaint allegations in brief are that by virtue of Ext.A1 gift deed executed as per the desire of father of the defendant and the plaintiff, the plaintiff is in possession and enjoyment of the property. She entrusted her mother to look after the property as she was residing away from the property The gift deed was handed over to the mother for paying tax. Ill feelings developed between the plaintiff and defendant and defendant threatened to forcibly take possession of the property. Hence suit was laid. 3. The defendant resisted the suit by pointing out that Ext.A1 gift deed was executed on the request of the father in order to tide over the difficulties in the ceiling case. It was a sham document and it was never intended to take effect. Even after the so called deed, defendant continued to be in possession and enjoyment of the property and the plaintiff had never obtained the possession. He therefore prayed for dismissal of the suit. R.S.A.No.613 of 2011 2 4. Issues were raised before the trial court. Evidence was adduced by both the parties. Exts.A1 to A5 were marked and PW1 was examined from the side of the plaintiff. Exts.B1 to B16 were marked and DWs.1 to 4 were examined from the side of the defendant. The trial court on an appreciation of evidence found that the plaintiff is not having any possession over the plaint schedule properties and Ext.A1 is a sham document. The suit was hence dismissed. The aggrieved plaintiff carried the matter in appeal as A.S.No.64/2003. The appellate court on independent evaluation of the evidence came to the conclusion that Ext.A1 had taken effect and possession of property did pass on to the plaintiff. Reversing the finding of trail court, the lower appellate court decreed the suit. 5. The aggrieved defendant has come up with this appeal. At the time of admission, the following question of law was formulated : “Whether the courts below on the evidence is justified in finding that respondent has established her possession of the plaint schedule property and thus entitled to the decree for prohibitory injunction.” 6. The learned counsel appearing for the appellant vehemently contended that the sole issue for consideration is R.S.A.No.613 of 2011 3 the possession of the property as on the date of the suit and nothing else. If the plaintiff is unable to prove her possession as on the date of suit, she has to lose. Being a suit for injunction, the plaintiff is bound to prove exclusive possession over the suit property as on the date of suit. If she is unable to establish possession as on date of suit, the only option available to the Court is to dismiss the suit. 7. The trial court had raised an issue regarding the possession and had come to the conclusion that on an evaluation of the evidence, the plaintiff had failed to establish the possession. The appellate court, according to the learned counsel, did not raise any issue as such on the question of possession and had not considered the evidence adduced by the defendant. Merely because in the gift deed there is a recital of handing over possession, it does not mean that the gift has taken effect. It is also contended on behalf of the appellant that Ext.A1 is a sham document and in support of his contentions, he relied on the decision in _**V.M.Salim v. Fathima Muhammed and Others [2006 KHC 812].**_ Learned counsel went on to point out that in a suit for injunction, the plaintiff has to establish that he is in possession and in support of the same, reliance was placed on the decision R.S.A.No.613 of 2011 4 ## in _**Thimmaiah v. Shabira and Others [2008 KHC 4190]**_ . 8. The learned counsel for the appellant pointed out that the appellate court has taken serious note of the fact that basic tax have been paid by the plaintiff and tax receipt produced by the plaintiff in that aspect shows her possession. For the proposition that payment of basic tax is no proof of exclusive possession reliance was placed on the decision reported in _**Mechantile Credit Corporation v. Sathyan**_ [ _**1997 KHC 74]**_ . 9. Accordingly it is contended that the lower appellate court was in error in reversing the finding of the trial court which has an opportunity to watch the demeanour of the witnesses and there is nothing to show that the finding entered into by the trial court was contrary to the evidence on record. 10. The learned Senior Counsel Sri.R.D.Shenoy appearing for the respondent vehemently contended that this case cannot be merely viewed as a suit for injunction. It is a case where a brother executed a deed in favour of his sister which is later claimed to be a sham document. It is significant to note, according to the learned counsel, that the mutation was effected by the defendant himself and the document of title describes passing of possession. It is brought out in evidence R.S.A.No.613 of 2011 5 that as the sister had to stay away from the family, she entrusted the property to her mother to look after the same and the mere fact that even assuming it to be true that the defendant is in possession as on the date of suit, will not be sufficient to decline relief to the plaintiff. It is significant to notice that the mutation was effected at the instance of the defendant himself and the basic tax was paid by the plaintiff. According to the learned Senior Counsel on the basis of the gift deed advantage was gained in the ceiling case and now the defendant cannot turn around and state that the deed had not taken effect. At any rate according to the Learned Senior Counsel, the view taken by the lower appellate court is also a possible view and if that be so, exercising jurisdiction under Section 100 of Code of Civil Procedure, this Court may not be justified in reversing the finding of the lower appellate court. 11. No doubt in a suit for injunction, the main consideration is possession as on the date of suit. Prior possession may not be sufficient. But each case depends on the facts of that case and the evidence available in the said case and there is no straight jacket formula in these matters. 12. In the case on hand, as rightly pointed out by the learned Senior Counsel for the respondent, the question is one R.S.A.No.613 of 2011 6 of consideration is passing of possession in pursuance to the gift deed which was executed by the brother in favour of the sister. 13. In the two judgments relied on by the counsel for the appellant namely _**Thimmaiah v. Shabira and Others [2008 KHC 4190]**_ & _**V.M.Salim v. Fathima Muhammed and Others [2006 KHC 812]**_ the Apex Court had occasion to consider as to what is the test to be applied in a suit for injunction. The Apex Court had considered various aspects. The question is only when the person who seeks the remedy of injunction alone if he has proved that he is in actual possession of the property. If it is shown that he is not in possession, he has to seek for higher remedy. 14. There can be no doubt that the plaintiff has to establish possession as on the date of suit. But as noticed, there is no fixed formula for appreciation of evidence and each case depends upon the facts of the case. In the case on hand it is not disputed that Ext.A1 gift deed was executed by the defendant in favour of the plaintiff. The attempt initially was to show that he was made to execute the document at the instance of his father and he is only at an age of 19 at the relevant point of time. The evidence adduced shows that he R.S.A.No.613 of 2011 7 was conscious about what he was doing. It has also come out in evidence that document recites possession passed having been given to the donee. Far more important is the fact that in the ceiling proceedings conducted by the father of the defendant, it is seen that this property was excluded from his possession and he thus had gained advantage in that regard. 15. Much reliance is placed on the evidence of DW2 to 4 to contend for the position that the defendant had been in possession. They say that they worked for the defendant. But one has to notice that DW4, who is the brother of both the parties, says that he had conducted work operations in the property of the defendant in his absence. This statement made by DW4 does not give much support to the evidence of DW1 and he has no case that he has ever entrusted his brother to look after his property. As regards the evidence of DWs.2 and 3 that does not support the case of the defendants much. As regards Exts.B5 to B10, as rightly pointed out by the Learned Senior Counsel for the respondent, as per those documents membership of the society has been issued in the year 1999. Even assuming that he had a membership, it does not mean that he was in possession of the property as of right. 16. The defendant stated that he had paid basic tax for R.S.A.No.613 of 2011 8 the property but for reasons best known to him not even a single receipt was produced. 17. It would appear from the evidence that all went well as long as the relationship between the members of the family was cordial. Disputes arise when the relationship became bitter. The fact that a cancellation deed was executed show that the persons concerned were apprehensive of their rights. Viewed in the light of these facts it is difficult to say that Ext.A1 is a sham document. The evidence is clear that Ext.A1 has been acted upon since mutation was also effected. 18. The trial court was impressed by the evidence of DWs.2 to 4. Their evidence have already been referred to. The evidence in the case has to be appreciated in the light of relationship between parties. Though it may be difficult to accept the claim put forward by the plaintiff that her husband was looking after the property, even assuming that defendant had done some agricultural operations in the property, that can only be treated to be on behalf of the plaintiff. The evidence read and viewed as a whole leaves one in no doubt that Ext.A1 is a genuine deed and has taken effect. 19. Though appellate court has not raised a specific issue regarding possession, the entire discussion of evidence is with R.S.A.No.613 of 2011 9 that issue in mind. The appellate court has considered the question of possession elaborately and has also noted how the trail court had gone wrong in finding in favour of defendant. Merely because an issue regarding possession had not been raised, that has not caused any prejudice to the defendant. 20. It could not be said that the finding of the lower appellate court is perverse or contrary to the evidence of record. It is a possible view. As rightly pointed out by the learned counsel for the appellant exercising the power under Section 100 of Code of Criminal Procedure, this court may not be justified in interfering with the finding of the lower appellate court even assuming a different view may be possible. This appeal is devoid of merits and the same is dismissed. No order as to costs. Sd/- **P.BHAVADASAN, JUDGE** AV /True Copy/ P.A to Judge