Meethala Koombayil Premarajan v. Arikothan Jayarajan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** ## **THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932** **AS.No. 291 of 1995()** **------------------------------** **OS.434/1993 of PRL.SUB COURT, THALASSERY** **....................** ## **APPELLANT/PLAINTIFF:** **-----------------------------------** ## **MEETHALA KOOMBAYIL PREMARAJAN, S/O.ANANDAN, POOZHATHI AMSOM DESOM, KANNUR TALUK.** **BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA** ## **RESPONDENTS/DEFENDANTS:** **---------------------------------------------** **1. ARIKOTHAN JAYARAJAN, KANNUR II AMSOM, THALAP WARD, KANNUR TALUK.** - ***2. KURUNTHIRIYAKATH LAFARKKANTAVIDE ABDUL SATHAR, RESIDING AT KHURIASH, KANNUR II AMSOM, THALAP WARD, KANNUR TALUK. *(DIED)** **3. VAYARAJ PUTHEN PURAYIL KUNHAMINA, RESIDING AT DO. DO. DO.** ## ***ADDL. R4 TO R6 IMPLEADED** **ADDL. R4: V.P.UVAIS, SON OF ABDUL SATHAR, AGED 23 YEARS, RESIDING AT KANNUR II, THALAP WARD, KANNUR** **ADDL. R5: V.P. HUDAIF SATHAR, SON OF ABDUL SATHAR, RESIDING AT KANNUR II, THALAP WARD, KANNUR.** **AS.No. 291 of 1995** **ADDL. R6: V.P. UZAIR SATHAR, SON OF ABDUL SATHAR, RESIDING AT KANNUR II, THALAP WARD, KANNUR.** ***ADDL. R4 TO R6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 02/06/2004 IN I.A.385/2004.** **** THE 3RD RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 02/06/2004 IN I.A.385/2004.** **ADDL. R4 TO R6 BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE, SRI.P.G.RAJAGOPALAN,** **SRI.M.GOPIKRISHNAN NAMBIAR.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## Thottathil B.Radhakrishnan ## & K.Vinod Chandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.291 of 1995-G = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of May, 2012. ## Judgment Thottathil B.Radhakrishnan, J. 1.Sarada and her children entered into a partition in 1982. The first defendant Jayarajan is the son of Sarada. Later, certain litigations cropped up between Jayarajan and his sister Remavathy. The issue related to an item which was covered by the partition deed dated 25.6.1982(Ext.B1). That item in terms of that partition deed was to go to Jayarajan after the lifetime of Sarada. In Ext.B3 suit, Jayarajan succeeded in obtaining a decree of perpetual injunction against his sister restraining trespass into that property. The AS291/95 -: 2 :- trial court in that process also passed a decree of injunction restraining Jayarajan, the plaintiff therein from alienating that item of property without obtaining a declaration following or showing the death of the mother Sarada. With the passage of time, on 2.6.1989, Jayarajan filed suit which led to Ext.B4 judgment and decree on 18.10.1990. By that, the trial court granted a decree declaring title of Jayarajan over the aforesaid property holding that it has been showed to the satisfaction of that court in terms of Section 108 of the Evidence Act that Sarada was not heard for a span of more than seven years and has therefore to be presumed as dead. - 2.It appears that during the pendency of Ext.B4 suit, Jayarajan, the plaintiff therein transferred the property in question to the plaintiff in the suit from which this appeal arises. He, Premarajan, purchased the item on 26.7.1990 as per Ext.A1 from Jayarajan. AS291/95 -: 3 :- Thereafter, alleging disruption to the holding, including by putting up a compound wall, the instant suit is filed by Premarajan also seeing that defendants 2 and 3 were also shown to be in possession by documents made by the first defendant Jayarajan. - 3.The trial court held that in view of the interdiction created in Ext.B1 that Jayarajan shall not alienate the property without getting a declaration as to the demise of his mother, Ext.A1 sale deed by Jayarajan to the plaintiff in the instant case, on 26.7.1990 is incompetent. It also held that without seeking a declaration as to title, a suit for recovery of possession would not lie, particularly when the compound wall has been erected. - 4.Having heard the learned counsel for the appealing plaintiff and respondents 2 and 3 (defendants 2 and 3 who alone contested the matter before the court below), we need to notice AS291/95 -: 4 :- specifically that Ext.B4 suit for declaration of title filed by Jayarajan against his sister and other relatives was instituted on 2.6.1989 and decreed on 18.10.1990. The declaration granted thereby is as to Jayarajan's title to the property. The finding that his mother Sarada is shown to have died more than seven years ago, going by presumption available under Section 108, is only a finding leading to the declaration as to Jayarajan's title to the property. Such declaration as to title to property and the finding regarding the death of Sarada would, therefore, relate to 2.6.1989, the date of suit. Under such circumstances, we are of the view that the sale deed executed by Jayarajan in favour of the plaintiff on 26.7.1990 would stand. - 5.Now, on to the conditional effect of decree of perpetual injunction contained in Ext.B3, it needs to be stated that it is a decree in personam inter-se Jayaran and his siblings. The contesting defendants 2 and 3 and the plaintiff AS291/95 -: 5 :- were not parties to that litigation. The decree of perpetual injunction does not amount to impair the title to property. Fundamentally, we may notice that a clause in restraint of transfer is one treated as absolute restraint on the basis of the provisions of the Transfer of Property Act. However, we do not express anything in relation to the injunction granted by the trial court in Ext.B3 suit as against the plaintiff therein from alienating the property without obtaining the declaration as to the demise of his mother. 6.Be that as it may, we are clear in our mind that neither the subsequent transferees of Jayarajan (defendants 2 and 3) and nor the plaintiff are entitled to agitate any issue on the binding nature of Ext.B3 to which they were not parties. The tenor of the directions or of the restraint orders contained in Ext.B3 would, at best, operate only between Jayarajan and his siblings. This finding having no room of violation of those restraint orders, in our view, does not apply to AS291/95 -: 6 :- defendants 2 and 3 who are merely those claiming to be subsequent transferees under Jayarajan, wo could raise such plea. 7.Now, the learned counsel for respondents 2 and 3, quite, rightly relied on the decision of the Apex Court in Anathula Sudhakar v. P.Buchi Reddy, AIR 2008 SC 2033 which exclusively deals with the varied aspects which would fall for consideration in dealing with suits relating to declaration, possession etc. Applying the principles emanating from that precedent, it can be seen that in the case in hand, the fact that Ext.A1 was executed by the first defendant in favour of the plaintiff not being disputed, the insistence for declaration of title as a condition precedent for recovery of possession cannot be accepted. What is sought for by the plaintiff in the case in hand is recovery of possession on the strength of title which he asserts on the basis of Ext.A1. It having been shown that Ex.A1 is executed by the person who has title to the property, no AS291/95 -: 7 :- defence from defendants 2 and 3 who are merely transferees of the first defendant can lead to the situation whereby the plaintiff has to seek a declaration of title. 8.For the aforesaid reasons, the appeal succeeds. In the result, this appeal is allowed vacating the impugned judgment and decree and the suit is decreed allowing the plaintiff to recover the plaint schedule property from defendants 1 to 3. The parties are directed to bear their respective costs. Thottathil B.Radhakrishnan, Judge. K.Vinod Chandran, Judge. Sha/3105 AS291/95 -: 8 :- ## Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. = = = = = = = = = = = = = = = A.S.No.291 of 1995-G = = = = = = = = = = = = = = = Judgment 28th May, 2012