Madhavanenezhuthassan v. Gopalakrishnan Iyer and Jayan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 22ND DECEMBER 2010/ 1ST POUSHA 1932 SA.No. 612 of 1999(F) --------------------O.S.NO.255/93 OF MUNSIFF COURT, WADAKKANCHERRY A.S NO.222/95 OF DISTRICT COURT, THRISSUR APPELLANT(S): ------------------MADHAVANEZHUTHASSAN, S/O PANIKUZHIYIL SANKARANEZHUTHASSAN, PULAKKOD VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT(S): - ----------------------1. GOPALAKRISHNA IYER, S/O KRISHNA IYER PULAKKODE VADAKKE MADOM, KANDAMKULAM, 18/166, POST THALI, KOZHIKODE-2. 2. JAYAN, S/O KIZHAKKEKALA VASU, EZHUTHASSAN, PULAKKODE VILLAGE, TALAPPILLY TALUK ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 ADV. SRI. P.B.KRISHNAN FOR R1 ADV. SRI.HARISH R. MENON FOR R2. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON 22 / 12 / 2010 DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN, J** ## **-------------------------------------S.A No.612 OF 1999 -------------------------------Dated this the......... day of December 2010** ## **JUDGMENT** Plaintiff in a suit for injunction is the appellant. The trial court granted a decree in his favour, but, it was reversed in appeal by the lower appellate court, and hence this appeal. 2. Suit property having an extent of 44 cents comprised in survey No.520 of Chelakkara village, admittedly, belonged to first defendant's predecessor, his grand father. It is also admitted that by inheritance, the property devolved upon the first defendant and by virtue of an oral lease, from that defendant, in 1960, plaintiff came into possession and enjoyment of the property was his case. He has effected valuable improvements putting up embankments and also fence and gate and it continues to be in his possession and enjoyment and at present, the first defendant, title holder, is attempting to assign the property in favour of the second defendant and thereby defeats his tenancy rights and there is also threat of trespass into the property by the defendants was the basis for seeking the decree of perpetual prohibitory injunction against both defendants. The first defendant alone resisted the suit, who in his written statement, disputing the oral lease and also claim of possession and S.A No.612 OF 1999 - 2 - enjoyment of the plaintiff, contended he is in exclusive possession of the property. According tot he first defendant, the wife of the plaintiff and also her mother were agricultural labourers attending his lands and he had later executed some assignment deeds in their favour. A sum of Rs.1,000/- is still due from the mother in law of the plaintiff in respect of one of such transactions and on his behalf, the plaintiff and the members of his wife's family have been paying the tax for the plaint property as authorised by him. The embankments of the suit property on its eastern side was in existence much earlier and it was not a construction put up by the plaintiff who had no possession and enjoyment over the same was the case of the plaintiff. As a title holder, he continues in possession of the property and the plaintiff has no right over the same was the case of the defendant resisting the decree applied for in the suit. On the materials placed, which consisted of PW1 and PW2 and Ext.A1 series for the plaintiff and DW1 and DW2 and Exts.B1 to B6 series for the first defendant, the Learned Munsiff concluded that the plaintiff has proved his exclusive possession and enjoyment over the suit property and his apprehension of trespass and interference with S.A No.612 OF 1999 - 3 - his possession from the first defendant cannot be brushed aside as the first defendant had set up a rival claim of possession over the property. In that view of the matter, holding that the plaintiff is entitled to the discretionary relief applied for, the decree of perpetual prohibitory injunction was granted in his favour restraining the first defendant from creating any document in favour of the second defendant and others and also from trespassing upon and causing obstruction to the possession and enjoyment of the plaintiff over the suit property. In the appeal preferred by the first defendant challenging the decree, the lower appellate court, after reappreciating the materials tendered, differing from the conclusion drawn by the trial court, reversed the decree of injunction and nonsuited the plaintiff allowing the appeal. Feeling aggrieved, the plaintiff has come up with this Second Appeal. 3. Substantial question of law raised in the appeal is as follows. Has not the lower appellate court gone wrong in interfering the decree of injunction granted by the trial court holding that the oral lease set up by the plaintiff has not been proved, but, without considering the question whether he has settled possession over the property. S.A No.612 OF 1999 - 4 - 4. I heard the counsel on both sides. Though the plaintiff has canvassed a case that his possession over the suit property was on the basis of an oral lease from the first defendant, the title holder, being a suit for injunction, the plaintiff need only establish that he is in settled possession and the decree granted by the trial court on the materials placed that he has established his exclusive possession and enjoyment over the property was unjustifiably interfered with by the lower appellate court for the reason that he has claim of possession based on oral lease has not been proved in the case is the submission of the learned counsel for the appellant/plaintiff. The documentary as well as the oral evidence produced in the case, according to the counsel, unerringly established that the suit property is in the possession and enjoyment of the plaintiff and so much so, his case of raising possession under an oral lease and absence of materials to prove that claim does not have any value or significance in judging the merit of his claim for decree of injunction is the submission of the counsel. The lower appellate court has erred in interfering with the decree passed by the trial court holding that as against the owner of the property, the first defendant, without proving his S.A No.612 OF 1999 - 5 - title or a right to be in possession, he is not entitled to the decree of injunction. Where the plaintiff has proved his settled possession over the property, that alone is sufficient to sustain the decree of injunction granted in his favour by the trial court and the lower appellate court went wrong in interfering with that decree, according to the counsel. Per contra, the learned counsel appearing for the first defendant contended that the conclusion drawn by the lower appellate court to interfere with the decree of injunction, both on the ground that the plaintiff has failed to prove exclusive possession over the property and the claim of possession canvassed by the first defendant, the owner, is more probable and acceptable and as against such true owner, the plaintiff without showing his title or right to possession especially where the case put up by him as to oral lease over the property was found to be totally unworthy of value, does not suffer from any infirmity and it does not call for any interference by this court in the Second Appeal. Reliance is placed on **“Rame Gowda v M.Varadappa Naidu and another” ((2004) 1 SCC 769), “Sopan Sukhdeo Sable and Others v Assistance Charity Commissioner and Others” ((2004) 3 SCC 137) and** S.A No.612 OF 1999 - 6 - ## **“Anathula Sudhakar v P.Buchi Reddy and others” ((2008)** **4 SCC 594)** by the learned counsel for the first defendant to contend that the suit where the plaintiff has failed to prove the tenancy claimed over the property under the oral lease from the first defendant canvassed for and admittedly the title of the property vested with the first defendant, as against the true owner, a mere suit for injunction would not lie and the dismissal of the suit in reversal of the decree passed by the lower appellate court is just and proper, which deserve only to be approved. 5. Perusing the judgments rendered by both the courts below with reference to the materials tendered in the case, it is noticed, a reappreciation of the materials tendered in the case to determine whether the plaintiff had proved exclusive possession over the suit property, which was found to be so by the trial court to grant him a decree of injunction was proceeded by the lower appellate court with a conceived view that in appreciating the evidence let in by the plaintiff in support of his possession the 'question as to how he came into possession is also relevant'. His claim was based on an oral lease from the first defendant more than three decades prior to the institution of the suit and the tax S.A No.612 OF 1999 - 7 - receipts produced by him as Ext.A1 series are insufficient to prove that claim. The lower appellate court concluded that once the oral lease pleaded by the plaintiff was not proved, it has to follow that he has not established how he came into possession of the property. No doubt, the approach taken by the lower appellate court to examine the merit of the case canvassed by the plaintiff for seeking the decree of injunction in the suit was erroneous and unsustainable under law. Even assuming that the plaintiff was a wrong trespasser, if he was in settled possession of the property as and when the suit was filed, that is sufficient even to get a decree of injunction even against the true owner of the land is well settled. In the present case, the plaintiff has set up a claim over the property on the basis of an oral lease from the first defendant would no way disentitle him to get the discretionary relief of injunction even where he failed to prove such case if the evidence tendered by him establish his settled possession over the suit property. A person having settled possession, no doubt, is having a 'right of possession' even against the true owner of the land and that valuable right enjoyed by him cannot be interfered with otherwise than under due process of law. Since S.A No.612 OF 1999 - 8 - the first defendant is admittedly the owner of the land and as the plaintiff has failed to prove the oral lease set up by him over the property, he has not established that he is in possession, a view taken by the lower appellate court without appreciating the materials tendered in the case in the proper perspective and dismissing his suit interfering with the decree of injunction granted by the trial court is not correct at all. The question to be looked into in the case where rival claim of possession over the suit property was raised by the parties as to who among them is having settled possession and enjoyment of the property. In that context, more than anything else the revenue receipts produced by the plaintiff have much significance. Those revenue receipts would show that he has paid tax in his name in respect of the property over a period of years. First defendant has tried to explain the way the tax paid by the plaintiff contending that the wife of the plaintiff and the members of her family were his agricultural laborers and he had executed some documents in their favour. A sum of Rs.1000/- was outstanding to be paid from an assignment deed made in favour of the mother-in-law of the plaintiff and the amount paid as tax over the property was S.A No.612 OF 1999 - 9 - adjusted in such sum as authorised by him was the case canvassed to explain the way the payment of tax over the property by the plaintiff. Ext.A1 receipts relate to 1981, 1982, 1984 and 1993 and others the tax paid in bulk in the year 1993. The other receipts would show the amount paid as tax was less than Rs.3/- per year. An amount of Rs.1000/- reserved to be paid later under Ext.B2 assignment deed executed in favour of the mother-in-law of the plaintiff in 1967 was projected as an explanation of why the first defendant paid tax over the property. But, it is the version of the first defendant as PW1 in his evidence that the plaintiff paid the amount due as tax for the property towards the sum reserved to be paid under Ext.B2 stating that the accounts thereof could be settled later. Falsity of the version so put up is borne out by the fact that the first defendant had executed Ext.B5 receipt in 1967 in favour of the mother-in-law of the plaintiff acknowledging the amount reserved under Ext.B2 deed with interest of such amount till the date of execution of such receipt. As against Ext.B5 receipt, he gave evidence that the sum reserved under Ext.B2 had not been paid by the motherin-law of the plaintiff and received by him so far. The lower S.A No.612 OF 1999 - 10 - appellate court, it is seen, has accepted his version thereof overlooking Ext.B5 receipt as if it is admitted by the plaintiff. It is seen, the opinion formed by the lower appellate court that “Ext.B2 shown and, it is admitted also, that the sum of Rs.1,000/stated in Ext.B2 has not been paid to the first defendant, so far” is against the evidence in the case, and in fact, there was no admission from the plaintiff as indicated. Perusal of the written statement filed by the first defendant would demonstrate that he had practically conceded that the fence over the property was put up by the plaintiff. But, he wanted to explain it a way as it had been so put up after the institution of the suit. He has no definite case that the plaintiff was acting as his care taker of the property as he is employed at a far of place. But, only that he had some association with the wife house of the plaintiff, who are stated to be the agricultural laborers attending to his land. Other than producing some assignment deeds and receipts relating to his properties that too executed decades before the institution of the suit, the first defendant did not produce any documentary material to substantiate that he has been exercising his possessory right over the property as its owner. If tax over the S.A No.612 OF 1999 - 11 - property was paid by the first plaintiff on his behalf naturally one would expect him to collect such receipts. Whereas the plaintiff had contended that he had put up an embankment on the eastern boundary of the plaint schedule property twenty years back and also installed a gate with a lock and key as rightly noted by the trial court the reply in the written statement of the defendant was the suit property was lying as a vacant land without any fencing. As against the above statement, it was further contended in a different paragraph in the written statement that the embankment on the boundary was there ever since the acquisition of the property. In evidence, that was also given a go back by stating there was only some collection of rubble stones on the boundary line separating the property from the road. The inconsistent version so presented by the defendant was rightly and correctly taken into account by the trial court to conclude that his claim of possession over the suit property is totally meritless. The evidence of plaintiff as PW1 with that of PW2 along with the tax receipts produced, all of him, was found credible and convincing by the trial court which formed a conclusion that the plaintiff is having exclusive possession and S.A No.612 OF 1999 - 12 - enjoyment of the property, which has correctly concluded that the source of possession claimed by the plaintiff, which according him was under an oral lease has not much significance in assessing the merit of his claim for injunction. Where the plaintiff is found to be in settled possession, which is enough to show his right to possession even against the true owner, he was entitled to the discretionary relief canvassed for in the suit as found by the trial court. The lower appellate court, misdirecting its inquiry and on wrong premises and more so, negating the principles applicable in evaluating the merit of the discretionary relief of injunction has unjustifiably interfered with the decree passed by the trial court in favour of the plaintiff. 6. The decision cited by the learned counsel for the first defendant, none of them in any way assist him in sustaining the judgment of the lower appellate court incurred in the appeal. The question of tenancy claimed over the suit property under an oral lease by the plaintiff from the first defendant was not established may have significance if the suit is filed by the first defendant on the strength of his title to evict him from the property, but, to determine the claim of injunction, the discretionary relief S.A No.612 OF 1999 - 13 - canvassed in the suit, it has pressed his possession on the oral lease and it has not been established does not have any value if the materials produced establish his settled possession over the property. Since he has claimed a tenancy over the property, it does not follow that he has to establish such tenancy seeking a declaration thereof and a determination of such tenancy by a tribunal to protect his right to possession over the property from the true owner, the first defendant. Parties can agitate their right to possession on the basis of title in property proceeding as provided by law and even against the true owner, a person having settled possession, can maintain a suit for injunction and where such claim is found proved the equitable relief has to be granted. In reversal of the decree of dismissal passed by the lower appellate court, the appellant/plaintiff is entitled to a decree of injunction against the defendants in the suit, as held by the trial court, However, the plaintiff is not entitled to a decree of injunction restraining the first defendant from alienating the suit property which right as an owner of the land he is free to exercise. No doubt, in the event of alienation of the property by the first defendant, the alienee/transferee shall also be bound by S.A No.612 OF 1999 - 14 - the decree of injunction. So much so, the decree of injunction in favour of the plaintiff shall be only of restraining the defendants from trespassing upon and interfering the possession and enjoyment of the plaintiff on the plaint property and also prohibiting the first defendant /title holder from evicting him from the said land otherwise than in due process of law. Appeal is allowed directing both sides to suffer their cost. ## **S.S.SATHEESACHANDRAN JUDGE** vdv