Regular Second Appeal No. 425 of 2016

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 RSA NO. 425 OF 2016 AS 10/2014 OF ADDITIONAL DISTRICT COURT - II, KASARAGOD OS 25/2011 OF SUB COURT, KASARAGOD** ## **APPELLANTS IN R.S.A: RESPONDENTS IN A.S – DEFENDANTS IN SUIT** 1 M.K.AISABI AGED 79 YEARS WIDOW OF N.A.ABOOBACKER, AGED 79, MUSLIM, RESIDING AT KALPAKA HOUSE, MUTTATHODY VILLAGE, NEAR CIVIL STATION, P.O.VIDYANAGAR, KASARAGOD TALUK. 2 ABDULLA AGED 55 YEARS S/O. N.A.ABOOBACKER, AGED 55,MUSLIM, RESIDING AT KALPAKA HOUSE,MUTTATHODY VILLAGE, NEAR CIVIL STATION,P.O.VIDYANAGAR, KASARAGOD TALUK. 3 MOIDEENKUNHI S/O. N.A.ABOOBACKER, AGED 50,MUSLIM, RESIDING AT KALPAKA HOUSE,MUTTATHODY VILLAGE, NEAR CIVIL STATION,P.O.VIDYANAGAR, KASARAGOD TALUK. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ## **RESPONDENTS IN R.S.A – APPELLANTS IN A.S – PLAINTIFFS IN SUIT:** 1 M.C.MOHAMMED YAHYA AGED 71, S/O. LATE M.C.AHAMMAD, MUSLIM,RESIDING AT SHANTHI MAHAL, HAMILTON COMPLEX, HAMILTON CIRCLE, MANGALORE-575001, DAKSHINA KANNADA. 2 M.C.NAFEESATHUL NAZEEM AGED 67 YEARS AGED 67, D/O. LATE M.C.AHAMMAD, MUSLIM, RESIDING AT SHANTHIL MAHAL, NEAR DEPUTY COMMISSIONER'S OFFICE,MANGALORE-575001, DAKSHINA KANNADA. BY ADVS. R.ANAS MUHAMMED SHAMNAD(K/590/2012) T.KRISHNANUNNI (SR.) C.C.ANOOP RASHEEK AHAMED B.A. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2022, THE COURT ON 22.09.2022 DELIVERED THE FOLLOWING: R.S.A.No.425/2016 2 **M.R.ANITHA, J** ****************** ## R.S.A.No.425 of 2016 -----------------------------------------------Dated this the 22[nd] day of September, 2022 ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.10/2014 on the file of Additional District Judge-II, Kasaragod which arouse out of the judgment and decree in O.S.No.25/2011 on the file of Subordinate Judge's Court, Kasaragod. 2. Appellants are the defendants in O.S.No.25/2011 which was filed by the respondent/plaintiff for a permanent injunction and for damages. (Parties would hereafter be referred as per their status before the trial court). 3. Plaint A schedule item No.1 to 3 properties were in possession of one N.A.Aboobacker as a cultivating tenant. The jenm right with respect to the said properties was with C.Mohammed. The said Mohammed, as per gift deed dated 31.03.1947 bequeathed jenm right to his daughter Aisabi. R.S.A.No.425/2016 3 Later, N.A.Aboobacker transferred his lease hold right with respect to the plaint schedule properties to M.C.Ahammed by virtue of assignment deed executed on 16.08.1966. M.C.Ahammed is the husband of C.Aisabi the aforementioned and is the mother of plaintiffs. After the death of the parents, jenm right as well as lease hold right of plaint A schedule properties devolved upon the appellants and they became absolute owners in possession of plaint A schedule property. It is alleged that with the intention of grabbing the plaint schedule properties the defendants cut and removed the trees standing in plaint A schedule properties and caused damage to the tune of Rs.1,25,000/-. Apprehending trespass again and cutting and removal of trees, the suit has been filed for a permanent prohibitory injunction and for damages. 4. Defendants filed written statement denying the plaint averment that plaint A schedule property was owned by C.Mohammed and sale of lease hold right by N.A.Aboobacker to M.C.Ahammed is also denied. It is contended that the said document is a product of forgery and impersonation. It is R.S.A.No.425/2016 4 contended that plaint schedule property originally belong to one Patla Abdulla and on his death, the property was devolved on to Mohammed, Moideenkunju and Nabeesa. After the death of Mohammed, his legal heirs sold their right in favour of the first defendant by sale deed dated 09.08.1968. Later, Nabeesa also released her right in favour of the 1[st] defendant. 1[st] defendant and Moideenkunju partitioned the properties, by virtue of which 1[st] defendant became the absolute owner in possession of plaint A schedule properties. Plaintiffs are not in possession of plaint A schedule property. 5. PW1 examined and Exts.A1 to A4 marked from the side of the plaintiff. Exts.B1 to B6 series marked from the side of defendants. Exts.C1 to C3 commission reports and plan were also marked. Learned Munsiff on evaluating the facts and circumstances and evidence found that the plaintiffs could not establish a clear case of title and possession of plaint A schedule properties and the suit is one for injunction and damages only and hence court cannot go deep into the question of title and evidence on record is not sufficient to find title and possession in R.S.A.No.425/2016 5 favour of the plaintiffs and accordingly the suit was dismissed. 6. Aggrieved by the judgment and decree passed against them, plaintiffs filed the appeal and the first appellate court on re-appreciation of facts, circumstances and evidence and law involved found that plaintiffs proved title over the scheduled properties and possession follows title and reversed the judgment and decree passed by the learned Munsiff and allowed the appeal. Aggrieved by the same, the defendants approached this Court in this Regular Second Appeal. 7. This Court, at the time of admission, formulated the following substantial questions of law. _“1. Whether the lower appellate court is right in deciding the case on the principle that possession follows title though evidence of possession is available?_ _2. Is the reception Ext.A5, gift deed, at the appellate stage as additional evidence under Order 41 Rule 27 Code justified in law?”_ 8. Lower court records were called for and both sides were heard. 9. Appellants/ defendants stoutly denied the execution of assignment of lease hold right by N.A.Aboobacker in favour of R.S.A.No.425/2016 6 M.C.Ahammed, the copy of which is produced as Ext.A1 and its is specifically contended that it is vitiated by impersonation and forgery and in the absence of the original of Ext.A1, court ought not have admitted Ext.A1 as a genuine document. It is contended that N.A.Aboobacker never parted with his tenancy right as per Ext.A1. It is also their specific contention that plaint A schedule properties and other items of properties belong originally to one Patla Abdulla and subsequently devolved upon his three children Mohammed, Moideenkunju and Nabeesa and on the death of Mohammed his right devolved upon his widow and children and they sold their right in favour of the first defendant as per Ext.B1 and Nabeesa, the daughter of Abdulla released her right over the property in favour of 1[st] defendant as per Ext.B3 dated 03.12.1968 and the property was subsequently partitioned between the first defendant and Moideen as per Ext.B2 partition deed. So, it is contended that plaint A schedule properties are included in the properties allotted to the first defendant under the said partition deed. 7 R.S.A.No.425/2016 10. The plaint A schedule properties have been in possession of N.A.Aboobacker which according to him is revealed from the proceedings from the Taluk Land Board, Kasaragod and hence according to him, suit has been filed with mala fide intention and the plaintiffs have never got any right, title or interest or possession over the plaint schedule properties. 11. The learned counsel would also contend that Commission report would reveal that the plaint schedule property is not lying separately demarcated. So, according to the defendants a simple suit for injunction without a prayer for declaration of title is not maintainable. It is also his contention that the judgment and decree passed by the first appellate court in a suit for injunction without going into the question of possession itself is illegal and unsustainable. It is further contended that title of plaintiff has been found by the first appellate court without satisfying the fiscal requirement since the suit has been valued under Section 27(c) of Kerala Court Fees & Suit Valuation Act, 1959 only. 12. Learned counsel for the respondent/plaintiff, on the R.S.A.No.425/2016 8 other hand, would vehemently contend that the plaintiff could establish through Exts.A1 to A5 their title and interest with respect to plaint A schedule property item Nos.1 to 3. Ext.A1 document has been marked without any objection and as has been found by the first appellate court, subsequently the defendant cannot turn round and object the marking of the document. The objection is with regard to the mode of proof as held in **R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple and Another : (2003) 8 SCC 752** as well as **Dayamati Bai v. K.M.Shafi : (2004) 7 SCC 107** . Ext.A4 is an undisputed document by the defendants in which there is specific mention of Ext.A1. So, the denial of the authenticity or genuineness of Ext.A1 by the defendants, according to him, is without any bona fides. 13. According to the respondent/plaintiff, plaint A schedule property originally belonged to C.Mohammed in jenm and he gifted the jenm right to the mother of plaintiffs by virtue of Ext.A5 gift deed of 1947 and the lease hold right of that property was with N.A.Aboobacker. The said N.A.Aboobacker by Ext.A1 R.S.A.No.425/2016 9 assigned his lease hold right over plaint A schedule property to M.C.Ahammed, the father of the plaintiffs. So, the plaintiffs claim that their father had lease hold right and mother had jenm right and after the death of father and mother lease hold right and jenm right of plaint A schedule property have been merged and the plaintiffs became the absolute owner of plaint A schedule property. It is also his contention that in paragraph 3 of the written statement defendant admitted that plaint A schedule properties along with other properties originally belonged to C.Mohammed and he gifted the jenm right to his daughter Aisamma @ Aisabi. They would further admit that N.A.Aboobacker was having lease hold right over those properties. It is further admitted that C.Aisabi sold the jenmam right in respect of certain item of properties in favour of the first defendant as per the registered sale deed dated 16.08.1966. But, in the very next sentence they would deny that N.A.Aboobacker conveyed lease hold right with respect to plaint A schedule properties in favour of M.C.Ahammed as per registered assignment deed dated 16.08.1966. R.S.A.No.425/2016 10 14. The main contention of the learned counsel for the plaintiffs is that defendants would admit the execution of the documents in favour of the 1[st] defendant on 16.08.1966. But, it is on the same day that Ext.A1 sale deed got executed with respect to A schedule properties in favour of M.C.Ahammed. So it was a package. It is also his contention that the defendants failed to mount the box and offer themselves for cross-examination and hence an adverse inference should be drawn against him. In this context, learned counsel relied on **Vidhyadhar v. Manikrao and Another : AIR 1999 SC 1441 : 1999 KHC 1091 : (1999) 3 SCC 573.** 15. Though the counsel for the defendant challenges the finding on title by the first appellate court in a suit for injunction, the specific contention of the learned counsel for the plaintiffs in this context is that the suit was not for simple injunction and damages was also sought for cutting and removing the trees. Therefore, without determining the title the damages cannot be fixed. Valuation of the suit is under Section 27(c). But learned counsel also in this context seeks the aid of Section 149 of Code of Civil Procedure, 1908 which enables the court to permit payment of R.S.A.No.425/2016 11 deficient court fee at any stage. So, in short, according to the learned counsel for the plaintiffs, first appellate court analysed the facts, circumstances, evidence and law involved in a correct perspective and hence no interference is called for at the instance of this Court. 16. The first aspect is with regard to the admissibility of Ext.A1 assignment deed. According to the learned counsel for the defendants, it has been specifically contended in the written statement that it is a creation of impersonation and forgery. But, admittedly by them, Ext.A1 was marked without any objection. Ext.A1 is the certified copy of a registered sale deed. The first appellate court relied on **R.V.E. Venkatachala Gounder** and found that in the present case, the objection of Ext.A1 is not with respect to its admissibility but with regard to its mode of proof and since that objection has not been raised before marking the document, subsequently, defendant cannot make objection with respect to the marking of document at a later stage. Paragraph 20 of the said judgment is relevant in this context, which is extracted below: R.S.A.No.425/2016 12 _“20. The learned counsel for the defendantrespondent has relied on The Roman Catholic Mission v. The State of Madras in support of his submission that a document not admissible in evidence, thoughbrought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise._ _Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently._ _The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision._ _In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and_ R.S.A.No.425/2016 13 _marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the made of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two_ R.S.A.No.425/2016 14 _types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”_ 17. As per Section 64 of the Indian Evidence Act, (in short 'the Act') documents must be proved by primary evidence except in cases provided under Section 65 of the Act. Section 65 of the Act in this context is relevant which reads thus: _“65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—_ _(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;_ R.S.A.No.425/2016 15 _(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;_ _(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;_ _(d) when the original is of such a nature as not to be easily movable;_ _(e) when the original is a public document within the meaning of section 74;_ _(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;_ _(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection._ R.S.A.No.425/2016 16 _In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible._ _In case (b), the written admission is admissible._ _In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible._ _In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."_ **Obje** 18. So, only in cases under Clauses (a), (c) and (d) secondary evidence of the contents of the documents is admissible. No such contingency arise in the present case so as to admit the secondary evidence of the contents of the documents. But, in the present case, plaintiffs would contend that the defendant themselves admitted execution of the other document Ext.A4 executed on the same day by C.Aisabi in favour of the first defendant, the wife of N.A.Aboobaker. It is on the same day Ext.A1 has been executed by N.A.Aboobaker in R.S.A.No.425/2016 17 favour of M.C.Ahammed the father of plaintiffs. 19. According to the learned counsel for the plaintiff, the entire transaction between M.C.Ahammed, C.Aisabi and N.A.Aboobaker and first defendant, the wife of N.A.Aboobaker was a package and on the date of execution of Ext.A4 which is not disputed by the defendant Ext.A1 assignment deed was also executed. The plaintiff's counsel would draw my attention to Ext.A5 which is the gift deed executed in favour of C.Aisabi by her father C.Mohamad in the year 1947. He would contend that as per Ext.A5 C.Mohamad gifted large extent of properties in favour of his wife and children and accordingly D schedule was allotted to Asiyamma @ Aisabi, the mother of the plaintiffs. Page No.8 of the translated copy of Ext.A5 which deals with third items of properties in D schedule which in total comprise of 14 items of properties. According to him, out of which plaint A schedule properties item Nos.1 and 2 are item Nos.1 and 2 which are properties comprised in Re-Survey Sub Division No.220/1 and 220/3 respectively having an extent of 96 cents and 75 cents respectively and plaint item No.3 is part of item No.11 comprised R.S.A.No.425/2016 18 in Re-survey No.221/2 which is having a total extent of 4.70 acres out of which only 1.78 acres have been covered by Ext.A1 which, on actual measurement, was found to be 1 Acre 69 and 1/4 cents which was amended in the plaint schedule subsequently. Ext.A1 is the assignment deed executed by N.A.Aboobacker, husband of the first defendant and father of defendants 2 and 3 in favour of M.C.Ahammed, the father of the plaintiff by which N.A.Aboobacker assigned his lease hold right over plaint A schedule item Nos.1 to 3 in favour of M.C.Ahammed. On perusing Ext.A1 and on examining leasehold property it could be seen that the property assigned by N.A.Aboobacker in favour of M.C.Ahammed, the father of the plaintiff is 96 cents of property comprised in Re-survey No.220/1 (item No.1), 75 cents of property comprised in Survey No.220/3 (item No.2) and 1.78 Acres of property comprised in Re-survey No.221/2 of Muttathodi village. 20. Ext.A4 document executed by C.Aisabi, the mother of plaintiffs in favour of first defendant would show that on the very same day she assigned Jenm assignment with respect to 11 R.S.A.No.425/2016 19 items of properties which include 2.29 acres of property in Resurvey No.221/2. But no properties comprised in re-survey No.220/1, 220/3 have been covered by Ext.A4. There is reference with reference to Ext.A1 in Ext.A4 also. 21. On examining Ext.B6 series tax receipts produced from the side of the defendants also it could be seen that Ext.B6(c) dated 19.07.2003 would show payment of tax by the 3[rd] defendant in the name of N.A.Aboobaker with respect to 3.36 Acres of property comprised in Re-Survey No.221/2 part. Exts.B6(d), B6(e), B6(f), B6(g) and B6(h) would show payment of tax with respect to the property comprised in Re-Survey No.221/2 part varying from the period 25.03.2006 to 26.09.2012. So also, Exts.B6(j) B6(k), B6(l), B6(m), B6(n), B(o) and B6(p) shows payment of tax with respect to 96 cents in Resurvey No.220/1 and 76 cents in Re-Survey No.220/3 along with certain other properties in the name of first defendant relating to the period 19.07.2003 to 04.07.2012. But as per Ext.A4 mother of plaintiffs have not conveyed any property comprised in 220/1 or 220/3 to the defendants' mother. They also produced Ext.B4 R.S.A.No.425/2016 20 the proceedings of Special Tahsildar (LR), Kasaragod dated 13.07.1977 in connection with S.M.No.852/1977 which is a proceedings in between N.A.Aboobacker, the father of the defendants and M.K.Aisabi, their mother as per which a certificate of purchase is issued in the name of N.A.Aboobacker, father of the defendant with respect to 4.07 Acres of property in Re-Survey No.221/2 in Muttathodi Village along with four other items of property. But that also do not refer any property comprised in re-survey No.220/1 (96 cents) or re-survey 220/3 (75 cents). Though in Ext.B1 there is reference with respect to re-survey No.220/1 96 cents and 220/3 75 cents, Ext.B1 only states about the transfer of Jenm right. So documents produced from the side of defendants will not prove leasehold right to defendants with respect to item No.1 and 2 properties. Whereas Ext.A1 and Ext.A5 documents prove the jenm right and lease hold rights of predecessor in interest of the plaintiffs over those properties. So mere payment of tax will not confer any title upon the defendants over plaint A schedule item Nos.1 and 2 [See: **State of Kerala v. Peter John (2018 (1) KLT 325); Suraj Bhan v. Financial Commissioner ((2007) 6 SCC 186 : 2007 (2) KLT OnLine 1146 (SC))]** . R.S.A.No.425/2016 21 22. In Ext.B4, there is reference with regard to the report submitted by Special Revenue Inspector wherein the Revenue Inspector has reported that N.A.Aboobacker is the cultivating tenant and the first respondent M.K. Aisabi is the land owner and there are no intermediaries and the petitioner is not a holder of land in excess of ceiling area and accordingly the purchase certificate was issued to N.A.Aboobacker, the father of the defendants. Ext.B5 is the certified copy of the order in O.A.No.3897/72 filed by N.A.Aboobacker, the father of the defendants and the respondent M.K.Aisabi in which also there is specific reference that the Taluk Land Board admitted the tenancy of the petitioner over the O.A property. But when N.A.Aboobaker already sold his lease hold right in favour of M.C.Ahammed with respect to 1.69 acres of property described in the plaint A schedule item No.3 in 1966 itself, he cannot have 4.07 Acres of property in Re.Sy.221/2 to apply for purchase certificate as per Ext.B4,that too with out joining the parents of plaintiffs as parties to the proceeding much after the execution of Ext.A1. Hence since Ext.B4 purchase certificate was obtained behind the back of the R.S.A.No.425/2016 22 plaintiffs it will not bind them also. 23. Learned counsel for the plaintiffs in this context bring to my attention **Chandran Nair v. Kunhambu : AIR 1982 Kerala 232 : 1981 ICO 1603** to contend that the purchase certificate issued in favour of the defendant will not bind them since they are not parties to the proceedings before the Land Tribunal. Plaintiffs' predecessors were not made parties to the proceedings before the Land Tribunal by N.A.Aboobacker and his wife, the first defendant. So, the purchase certificate and the connected records will not bind the plaintiffs also. 24. The defendants also sets up a claim that the property originally belonged to one Patla Abdulla. On his death, the property devolved upon his children Mohammed, Moideen Kunju and Nabeesa. On the death of Mohammed, his right devolved upon his widow Pathummi and children Abdulla and Nabeesa. They sold their rights in favour of first defendant as per Ext.B1 document. Nabeesa, the daughter of Aboobacker released her right over the property in favour of the defendant as per Ext.B3 release deed. Further, first defendant and Moideen Kunju R.S.A.No.425/2016 23 partitioned the properties as per Ext.B2 partition deed. So, according to them, the plaint A schedule property is included in the properties allotted to the first defendant under the said partition deed. But, as has been rightly found by the first Additional District Court, Exts.B1 to B4 are all subsequent to Exts.A1, A4 and A5.More over what is assigned as per Ext.B1 is the Jenm right. Even in Ext.B1 there is specific reference that tenancy right has been vested with Sri.N.A.Aboobaker. Tenancy right with respect to item Nos.1, 2 and 3 have been transferred by N.A.Aboobaker to the father of plaintiffs as per Ext.A1 on 16.08.1966 itself. 25. The first appellate court went on discussing that only document produced by the defendant to show that N.A.Aboobaker has subsisting leasehold right is Ext.B4. Plaint A schedule property is comprised in survey No.220/1,220/3 and 221/2A. Further it is found that none of the items of plaint A schedule is listed in Ext.B4 document. It is also found that item No.1 in Ext.B4 is an extent of 4.07acres of land in Re.Sy.No.221/2 and item No.3 in plaint A Schedule is comprised R.S.A.No.425/2016 24 in Re.Sy.No.221/2A. So the appellate court found distinction to plaint item No.3 from item No.1 in Ext.B4 since Resurvey number of plaint item No.3 is 221/2A. 26. But it is admitted by counsel for both sides during argument that 221/2A is sub division of 221/2 and when property is transferred such sub division number will occur. In other words there is no dispute that Re.Sy.221/2A is also a part of Re.Sy.No.221/2.So conclusion arrived at by the first appellate court that plaint item No.3 is in a different survey sub division and property covered by Ext.B4 has no connection with plaint A schedule is not fully correct. Item No.1 in Ext.B4 is a part of property shown as item No.3 in the plaint. It is also a portion of item No.8 described as 2.29 acres in Re.Sy. No.221/2 by which the mother of plaintiffs sold her jenm right with respect to that property along with certain other items in favour of first defendant the wife of N.A.Aboobaker on 16.08.1966.That is a document admitted by the defendants also. It is on the same day N.A.Aboobaker sold his lease hold right with respect to property comprised in same survey number to the father of plaintiffs R.S.A.No.425/2016 25 Sri.M.C.Ahammed. When defendant admit Ext.A4 ,they can not deny Ext.A1 a document executed on the same day. So as rightly contended by the learned counsel for the plaintiffs it is a package between the parents of plaintiffs, first defendant and her husband N.A.Aboobaker. So in effect Ext.B4 does not pertain to plaint item No.1 and 2. So also after execution of Ext.A1 N.A.Aboobaker will not have lease hold right over the entire 4.07 Acres (full sub division) of property in re-survey 221/2. 27. So, there is no much importance or relevance with respect to admissibility of Ext.A1 assignment deed. This document has been referred to in Ext.A4 which is an admitted document by the defendant. In paragraph 3 of the written statement, the defendant admitted that C.Aisabi sold jenm right in respect of certain items of property in favour of first defendant as per registered sale deed dated 16.08.1966 . But, at the same time, they denied the conveyance with respect to A schedule properties by N.A.Aboobacker in favour of M.C.Ahammad as per the assignment deed dated 16.08.1966 (Ext.A1). According to them, it is a creation of impersonation R.S.A.No.425/2016 26 and forgery. Inspite of such a contention raised in the written statement, defendants failed to adduce any evidence to substantiate their contention. 28. First appellate court actually followed the principle that possession follows title on the finding that plaintiffs could establish their title over plaint schedule properties by virtue of Exts.A5 and A1 and also in view of the Commissioner's report and plan. 29. Learned counsel for the defendants in this context drew my attention to **Nazir Mohamed v. J.Kamala and Others : AIR 2020 SC 4321 : 2020 KHC 6507** . Paragraph 52 of the said decision has been highlighted, which reads thus: _“52. The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.”_ R.S.A.No.425/2016 27 30. In the present case, appellate court followed the principles, possession follows title based on the title deeds produced from the side of the plaintiffs. First plaintiff was examined as PW1 and filed chief affidavit solemnly affirming that the plaintiffs are in joint possession and enjoyment of the plaint A schedule property and defendants have no manner of right or interest in the plaint A schedule property. During crossexamination, no question as such has been put challenging the said evidence of PW1 in chief examination with regard to the right, title and possession of the plaintiffs over plaint A schedule properties. It is true that certain questions were put to PW1 about the neighbouring property owners of plaint A schedule item numbers 2, 3 and 1. It is also true that PW1 could not state about neighbouring property owners of plaint item Nos.1, 2 and 3 correctly. But, that cannot be taken as a ground to discard the right or title of the plaintiff over the plaint A schedule properties especially because the property as per the Commissioner's report is a dry land with shrubs and trees and a non-residential land. The plaintiffs are also residing away from the plaint schedule R.S.A.No.425/2016 28 properties. But the evidence of PW1 regarding their right, title and possession over plaint schedule properties could not be successfully challenged by the defendants during crossexamination. Defendant also failed to mount the box to controvert evidence of the plaintiff. So, the dictum laid down in **Vidhyadhar v. Manikrao and Another : AIR 1999 SC 1441 :** **1999 KHC 1091 : (1999) 3 SCC 573** squarely applies to the fact situation of the present case. 31. Yet another contention advanced by the learned counsel is that title has been found by the first appellate court without the fiscal requirement. He would contend that suit has been valued only under Sections 22 and 27(c) of the Kerala Court Fees and Suits Valuation Act, 1959 and according to him, the suit ought to have been valued under Section 27(a). Learned counsel for the plaintiff in this context would contend that Section 149 of C.P.C enables the court at any stage to allow any person to pay the deficient court fee. [See: **Maya Rani v. Aboobaker Siddique (2021 (5) KLT OnLine 1052); Kathayee Cotton Mills Ltd., Alwaye (1[st] defendant) v. R. Padmanabha Pillai** R.S.A.No.425/2016 29 ## **(plaintiff) (1957 KLT 1175 (F.B.)].** 32. Though the suit was for injunction and damages in view of the rival contentions the learned munsiff framed an issue with respect to right and title of the plaintiffs also. In a suit for injunction when question arise the court can very well enter into a finding with regard to the title also. It is relevant to quote paragraph 21 of the judgment in **Anathula Sudhakar v. P.Buchi Reddi (Dead) by LRs and Others : (2008) 4 SCC 594 : AIR 2008 SC 2033 : 2008 KHC 6249** which summarises the position with regard to the suit for prohibitory injunction relating to immovable properties which reads thus: _“To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:_ _(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat_ R.S.A.No.425/2016 30 _of dispossession, it is sufficient to sue for an injunction simpliciter._ _(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession._ _(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction._ _(d) Where there are necessary pleadings_ R.S.A.No.425/2016 31 _regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."_ ## 33. It is also relevant in this context to quote paragraphs 10 and 11 of **Ramakrishna Reddy v. Mallappa : 2021 (5) KLT online 1071 (SC)** . “ _10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if_ R.S.A.No.425/2016 32 _the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction._ _11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction."_ ## 34. In **Jharkhand State Housing Board v. Didar Singh** **and Another : (2019) 17 SCC 692** question arouse as to whether the suit for permanent injunction is maintainable when defendant disputed the title of plaintiff. Paragraph 11 of the said decision is relevant in this context to be quoted which reads thus: “11. _It is well settled catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of_ R.S.A.No.425/2016 33 _declaration A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”_ 35. So, in the present case, it has already been found that the mother of plaintiffs executed an assignment deed in favour of the first defendant on 16.08.1966 transferring her jenm right with respect to certain properties. On the very same day the father of the defendants N.A.Aboobacker executed an assignment deed transferring his lease hold rights with respect to the plaint A schedule properties in favour of M.C.Ahammed, the father of the plaintiffs. So, it has been found already that it was a package in between the parents of the plaintiffs and first defendant and her husband. So, the subsequent obtaining of purchase certificate by the parents of the defendant from the Land Tribunal with respect to entire property comprised in item No.3 of plaint without making the parents of the plaintiffs as a party with respect to the same property will not bind them. So, the obtaining of purchase certificate behind the back of the parents of the plaintiffs will not R.S.A.No.425/2016 34 in any way create any cloud with respect to the title of the plaintiff over the plaint schedule item No.3 property. No document to prove the tenancy right with respect to item No.1 and 2 have been produced by the defendants. Ext.B4 did not refer about item No.1 and 2. Ext.B1 though states about item No.1 and 2 it is only dealt with transfer of jenm right. So no document to prove the title of defendants over item No.1 and 2 properties have been produced by the defendants. So, the tax receipt produced by the defendants will not have any legal effect or bind the plaint schedule properties. In the present case, moreover though the suit was filed for injunction the defendant in the written statement disputed the title of the plaintiff with respect to the plaint schedule properties and the learned Munsiff specifically raised an issue with respect to the right, title and possession of the plaintiff over the plaint schedule properties also. So, at this stage, the defendants cannot contend about the maintainability of the suit for injunction since the question of title has already been gone into by both courts though the learned Munsiff was of the view that the matter involved complicated R.S.A.No.425/2016 35 questions of fact relating to title and it is better to sue for declaration of title than a mere suit for injunction, the first appellate court has discussed the facts and circumstances and evidence adduced from the side of the plaintiffs and the question of title also has been found in favour of the plaintiff. So, at this stage, it is futile for the defendants to contend that the first appellate court has gone wrong in entering into a finding with regard to the title in a suit for injunction without going into the question of possession. Since the defendant could not establish any cloud on the title of the plaintiff with respect to A schedule property, the contention that prayer for declaration ought to have been sought for is also not sustainable in law. Though counsel for the defendants relies on **Pattathari Kuttiraman v. Puthukkudi Narayanan : 2010 (3) KHC 137** wherein it has been held that in a suit for injunction what is relevant is as to whether the plaintiff is in possession of suit property on the date of suit, it is also held therein that reference to title is required only if it is necessary to decide the question of possession. But in this case it has already been found that issue regarding title has been raised and evidence also adduced from R.S.A.No.425/2016 36 both sides regarding title. Hence the said decision has no direct application to the facts of the case. 36. Acceptance of Ext.A5 gift deed at the appellate stage is also challenged by the defendants. But in the plaint itself there is specific averments with regard to Ext.A5 gift deed by C. Mahamad to his daughter Aisumma @ C. Aisabi. The appellate court is well with in its powers to receive additional evidence if it requires any document to enable it to pronounce judgment or for any other substantial cause. Since the defendants are disputing the right and title of the plaintiffs over the plaint schedule properties, Ext.A5 the gift deed would enable the court for the just disposal of the appeal. So contention to the contra cannot be accepted. 37. Counsel for the defendants would also contend that as per commissioner's report the plaint schedule property is not lying separately demarcated, but is lying as a compact block. The commission report and plan prepared by surveyor is marked as Ext.C2 and C3 through PW1. The report of the commissioner would reveal that suit property and adjacent properties are R.S.A.No.425/2016 37 covered with green vegetation and no survey stones are available in the site. So commissioner filed memo to identify the property with the help of Total Survey Station Machine. It is also reported that thereafter properties were identified with the help of Taluk Surveyor and Total Survey Station Machine in the presence of both parties and counsel for parties. It is also reported by the commissioner that plaint schedule properties and adjacent properties are having jungle wood trees and forest growth and wild trees of similar nature. 38. In answer to the work memo filed by the defendants to report that there are no demarcating boundaries on any side of plaint A schedule properties and it is lying in a compact block, it is answered by the commissioner that there is boulder stone compound wall in re-survey No.220/1 and 221/2 also property in some other survey numbers (which are not relevant here) and at some places this boulder stone compound wall is replaced by laterite stone compound wall. It is also reported that there is rainwater channel to a certain length on the eastern survey line of re-survey No.220/3. Boulder stone compound wall exists on R.S.A.No.425/2016 38 158 links in re-survey No.221-2A. To a certain length mud ridge cum compound wall exists in the eastern survey line of re-survey No.220/1. So the contention of the learned counsel that plaint schedule properties are lying without any boundaries as a compact block is not seem to be correct. Moreover, with the help of Taluk Surveyor and Survey Station Machine plaint schedule property has been identified and sketch has been produced as Ext.C3. No question also put to PW1 during cross-examination with respect to Exts.C2 and C3 plan through whom it was marked. Defendants also failed to mount the box and gave any evidence disputing commissioner's report and plan. No attempt was made by the defendants to examine the commissioner and the surveyor to discredit Exts.C2 and C3. So there is no basis in the objection raised by the defendants with respect to the identity of the plaint A schedule property. 39. On a meticulous evaluation of the facts and circumstances and evidence adduced, I am of the view that the plaintiffs could establish their right and title over plaint A schedule property. Hence injunction granted in favour of the R.S.A.No.425/2016 39 plaintiffs with respect to the plaint A schedule property is only to be upheld. Since there is finding with regard to the title, the plaintiffs are bound pay the deficient court fee as per Section 27(a) of Kerala Court Fees & Suits Valuation Act, 1959 and plaintiffs are hereby directed to pay the deficient court fee in accordance with law within 15 days starting from this date. In the result, appeal dismissed subject to the payment of deficient court fee as directed afore. In the facts and circumstances, there is no order as to costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge