Saly Manoj v. A.T. Velappan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943 RSA NO. 485 OF 2008** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2007 IN AS 42/2007 OF DISTRICT COURT, ERNAKULAM AGAINST THE JUDGMENT AND DECREE DATED 31.08.2006 IN OS 150/2006 OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM** ## **APPELLANTS/RESPONDENT/DEFENDANTS:** *1 A.T.VELAPPAN, (DIED ADDITIONAL APPELLANTS 3 TO 5 IMPLEADED) AGED 74 YEARS, S/O.LATE SRI.AMACHADI THEVAN, AMACHERI THURUTH, POOTHOTTAH P.O., PIN - 682 307, ERNAKULAM. **2 THANKAMMA VELAPPAN,(RECORDED AS LR OF DECEASED 1ST APPELLANT) W/O.A.T.VELAPPAN, AGED 64 YEARS, AMACHERI THURUTH, POOTHOTTAH P.O. PIN - 682 307, ERNAKULAM. *ADDL. CHITRALEKHA, W/O SALSAN, A3 AGED 51 YEARS, RESIDING AT PARACKAL HOUSE, PUTHUVYPE, ERNAKULAM, KOCHI, PINCODE – 682508 *ADDL. INDULEKHA, W/O RATHEESH, A4 AGED 44 YERAS, RESIDING AT MUNDIL HOUSE, CHEMPU P.O., VAIKOM, KOTTAYAM DISTRICT, PIN – 686608 *ADDL. LANCY, W/O ANIL, AGED 41 YEARS, A5 RESIDING AT THEYYAMPARAMPIL, KADAVANTHARA, ERNAKULAM, PIN - 682020 **ADDITIONAL APPELLANTS 3 TO 5 ARE IMPLEADED AND SECOND APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVES OF DECEASED FIRST APPELLANT AS PER ORDER DATED 10.02.2020 IN IA NO.1/2020 BY ADVS. SMT.C.G.BINDU SMT.C.G.AJITHA R.S.A. No.485 of 2008 2 ## **RESPONDENT/APPELLANT/PLAINTIFF:** SALY MANOJ, AGED 37 YERAS, W/O.MANOJ KURIAKOSE, KUTTOMPARAMBIL HOUSE,, AMACHADY THURUTH, POOTHOTTA P.O., PIN - 682 307,, ERNAKULAM. BY ADV SRI.E.M.JOSEPH THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A. No.485 of 2008 3 ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.485 of 2008 --------------------------------------------- Dated this the 27[th] day of October, 2021 ## **JUDGMENT** This Regular Second Appeal arose from the judgment and decree dated 30.11.2007 in A.S.No.42 of 2007 passed by the VI- Additional District Court, Ernakulam. The plaintiff in O.S. No.150 of 2006 on the file of the Munsiff Court, Ernakulam, was the appellant in A.S.No.42 of 2007. The defendants were the respondents. 2. The defendants preferred this Second Appeal challenging the judgment of the First Appellate Court. 3. During the course of proceedings, appellant No.1 died. Consequently his legal representatives were impleaded as additional appellants 3 to 5. 4. The facts giving rise to this appeal are as follows: The plaint schedule property is 23 cents of land (9 Ares 31 Square Meters) in Re-Sy.No.49/2 in block No.18 of Manakunnam R.S.A. No.485 of 2008 4 Village. The plaint schedule property originally belonged to Late Sri.Thevan, the father of defendant No.1. Shri.Thevan alienated this property to Smt.Ambujakshi, who sold the same to Sri.K.V.Kuriakose as per sale deed No.592/1969. Sri.K.V.Kuriakose, executed Will No.38/1998 of SRO Tripunithura, by which the plaint schedule property was bequeathed in favour of his wife Thankamma Kuriakose. After the death of Sri.K.V.Kuriakose, Smt.Thankamma Kuriakose, acquired right in respect of the plaint schedule property. Smt.Thankamma Kuriakose sold the plaint schedule property to the plaintiff as per sale deed No.639/1/05 of SRO Tripunithura. The defendants attempted to trespass upon the plaint schedule property. 5. The defendants resisted the claim of the plaintiff, contending as follows: The sale deed in favour of the plaintiff, in respect of the plaint schedule property, is a sham document. The plaintiff has not obtained title or possession over the property. The defendants have no intention to trespass upon the plaint schedule property. The plaintiff acquired title and possession over only 20 cents of R.S.A. No.485 of 2008 5 property from the predecessors of the 1[st] defendant. The defendants are residents of a ‘Thuruthu’ wherein the plaint schedule property is situated. The plaintiff owns the remaining properties in the ‘Thuruthu’. Her attempt is to eject the defendants from the ‘Thuruthu’. Therefore, she has no cause of action to institute the suit. 6. During the trial, on the side of plaintiff, PWs 1 to 4 were examined and Exts.A1 to A8 were marked. DW1 was examined on the side of defendants. 7. After appreciating the rival contentions, based on the materials placed before the Court, the Trial Court recorded the following findings: (a) the plaintiff has established possession over the plaint schedule property (b) the plaintiff failed to establish the cause of action to seek relief of permanent prohibitory injunction against the defendants. 8. Based on the finding that the plaintiff failed to establish the cause of action pleaded against the defendants, the Trial Court dismissed the suit. 9. The plaintiff challenged the judgment and decree R.S.A. No.485 of 2008 6 passed by the Trial Court in O.S. No.150/2006 before the District Court, Ernakulam in A.S. No.42/2007. 10. The First Appellate Court confirmed the finding of the Trial Court that the plaintiff has established possession over the plaint schedule property. The First Appellate Court reversed the finding of the Trial Court that the plaintiff failed to establish a cause of action against the defendants for seeking a relief of permanent prohibitory injunction. The First Appellate Court found that the plaintiff is entitled to the permanent prohibitory injunction as prayed for. 11. Aggrieved by the judgment dated 30.11.2007 in A.S. No.42 of 2007 of the First Appellate Court, the defendants have approached this Court in this Second Appeal. 12. Heard Smt.C.G.Bindu, learned counsel appearing for the appellants and Sri.E.M.Joseph, the learned counsel appearing for the respondent. 13. After hearing both sides, I have reformulated the substantial questions of law as follows: R.S.A. No.485 of 2008 7 i) Whether the First Appellate Court misconstrued the evidence while holding that the plaintiff established the cause of action against the defendants. ii) Did the First Appellate Court err in holding that the claim of the plaintiff is not hit by Section 41(h) of the Specific Relief Act? 14. The learned counsel for the appellants/defendants contended that the decree of the First Appellate Court is perverse inasmuch as it disturbed the finding of the Trial Court that the plaintiff failed to establish the cause of action for seeking relief of injunction. The learned counsel for the defendants further contended that the relief sought for by the plaintiff is hit by Section 41 (h) of the Specific Relief Act. _Per contra,_ the learned counsel for the respondent/plaintiff contended that the plaintiff has established cause of action for getting the relief of permanent prohibitory injunction against the defendants in respect of the plaint schedule property and that the plaintiff had no equally efficacious remedy other than approaching the Civil Court seeking the relief of permanent prohibitory injunction. R.S.A. No.485 of 2008 8 15. The case of the plaintiff is that she is the absolute owner in possession of the plaint schedule property, which she acquired by way of Ext.A1 sale deed. Her further case is that, she has been in possession and enjoyment of the plaint schedule property. According to the plaintiff, the defendants attempted to trespass upon the plaint schedule property and interfere with the peaceful enjoyment of the same by the plaintiff. 16. The case of the defendants on the other hand is that, they have no reason to trespass upon the plaint schedule property and that the plaintiff is not in possession of the entire extent of the plaint schedule property. 17. The plaintiff herself gave evidence has PW1. She gave evidence in tune with the pleadings in the plaint. Plaintiff relied on Ext.A1 title deed, Ext.A2 tax receipt and Ext.A8 possession certificate to contend that she is in possession of the entire plaint schedule property. The Trial Court as well as the First Appellate Court recorded specific finding that the plaintiff is in possession of the plaint schedule property. 18. The learned counsel for the appellants/defendants R.S.A. No.485 of 2008 9 relying on _**Righesh Babu v.Gopalan Nambiar [2014 (4) KLT 654)],**_ contended that in the absence of well defined boundaries, the plaintiff is not entitled to the relief of permanent prohibitory injunction. As a matter of fact, there was no dispute about the identity of the plaint schedule property and the defendants had no case that the plaint schedule property is not lying separately from the other properties. The First Appellate Court has specifically recorded a finding to that effect in Paragraph No. 13 of the impugned judgment. 19. The learned counsel for the defendants further raised the contention that without establishing a cause of action against the defendants in respect of the plaint schedule property, the plaintiff cannot maintain the suit for injunction. The cause of action pleaded from the side of the plaintiff is that on 15.01.2006 and on 27.01.2006, defendants attempted to trespass upon the plaint schedule property and interfere with the peaceful possession and enjoyment of the property. PWs 3 and 4, the labourers of the plaintiff gave evidence that the defendants used to pluck coconuts from the property of the plaintiff and removed cadjans from there. Admittedly, the plaintiff had preferred the complaint before the R.S.A. No.485 of 2008 10 Police against the defendants raising this allegation. The oral evidence of PWs 1 to 4 would show that the defendants used to take yield from the plaint schedule property in spite of the complaint preferred by the plaintiff before the Police. 20. Cause of action is defined by the Apex Court in _**A.B.C. Laminart Pvt.Ltd. and another v. A.P. Agencies, Salem [(1989) 2**_ ## _**SCC 163],**_ as follows:- _“12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree.”_ 21. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion that the plaintiff established the cause of action entitling the relief of permanent prohibitory injunction against the defendants. In the instant case, going by the pleadings and evidence, this Court is of R.S.A. No.485 of 2008 11 the view that there is no reason to interfere with the findings of the First Appellate Court. 22. The right to an injunction is governed by the provisions of the Specific Relief Act. Section 38 prescribes the conditions when perpetual injunction can be granted by the Court. 23. The conditions prerequisite to the applicability of Section 38 are- “(1) there must be a legal right express or implied in favour of the applicant; (2) such a right must be violated or there should be a threatened invasion; (3) such a right should be an existing one; (4) the case should be fit for the exercise of court’s discretion. Where the inconvenience likely to result from granting injunction is greater than that which is likely to arise from withholding it, the injunction should not be granted; (5) it should not fall within the sphere of the restraining provisions contained in, or referred to, in Section 41 of the Specific Relief Act.” 24. In _**Sunkamma v. S.Pushparaj [(2018) 12 SCC 647]**_ , the Apex Court held that in suit pertaining to permanent injunction the touchstone upon which the suit has to be decided is “lawful possession” and not “ownership”. 25. Both the Trial Court as well as the First Appellate Court concurrently found that the plaintiff is in possession of the entire plaint schedule property. After appreciating the pleadings and R.S.A. No.485 of 2008 12 evidence, the First Appellate Court found that the plaintiff has established the cause of action for getting a relief of prohibitory injunction against the defendants. This Court is unable to find the findings rendered by the First Appellant Court as perverse as contended by the learned counsel for the appellants. 26. Yet another contention of the learned counsel for the appellants is that, the claim of the plaintiff is hit by Section 41(h) of the Specific Relief Act, as she has an equally efficacious remedy. This Court is of the view that, as the plaintiff has established legal right in respect of the plaint schedule property, and there is evidence of threatened invasion she has no equally efficacious remedy other than approaching the Civil Court seeking a decree of permanent prohibitory injunction. The plaintiff has established the conditions prerequisite to the applicability of Section 38 of the Specific Relief Act. The second appeal is dismissed. The parties are directed to bear their respective costs. **Sd/-** **K.BABU JUDGE** VPK