SA.No. 262 of 2003 (F)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** **SA.No. 262 of 2003 (F)** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-2002 IN AS 265/1993 of FIRST ADDITIONAL DISTRICT COURT,PALAKKAD** **AGAINST THE JUDGMENT AND DECREE DATED 30-07-1993 IN OS 314/1991 of MUNSIFF COURT, CHITTUR** **APPELLANTS/RESPONDENTS 2 TO 5& 7 TO 10/LRS OF PLAINTIFF:** **-------------------------------------------------------** **1. VALSALA, W/O. THANGAN ALIAS THANKAPPAN, RESIDING AT PAMBOORAN PARA, PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** **2. RATNAM, D/O. THANGAN ALIAS THANKAPPAN, RESIDING AT POOSARI KULAMBU, KAEIPODE, KODUVAYUR VILLAGE, PALAKKAD TALUK.** **3.RAVI, S/O. THANGAN ALIAS THANKAPPAN.** **4. CHANDRIKA, D/O. THANGAN ALIAS THANKAPPAN.** **5. RAGHU, S/O. THANGAN ALIAS THANKAPPAN.** **6. RATHI, D/O. THANGAN ALIAS THANKAPPAN.** **7. RAMESH, S/O. THANGAN ALIAS THANKAPPAN.** **8. REJINI, D/O. THANGAN ALIAS THKAPPAN** **APPELLANTS 3 TO 9 ARE RESIDING AT PAMBOORAN PARA, PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.** **SRI.R.RAJA RAJA VARMA SRI.PRINCE.K.ELIAS SRI.T.C.SURESH MENON SRI.P.S.APPU** **RESPONDENTS/APPELLANTS/6TH RESPONDENT/DEFENDANTS/LR OF PLAINTIFF:** **----------------------------------------------------------------** **1. UNNIKRISHNAN, S/O. PONNAN, RESIDING AT PLASSERI KOLAMBU, KARIPODE, KODUVAYUR VILLAGE,CHITTUR TALUK, PALAKKAD DISTRICT.** **2. KRISHNAN, S/O. VELAYUDHAN, RESIDING AT ANTHOORA KALAM, PAMBOORAN PARA, PUDUNAGARAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **3. LATHA, D/O. THANGAN ALIAS THANKAPPAN, RESIDING AT PAMBOORANPARA, PUDUNAGARA, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.R.VENKETESH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ....................................... S.A.No.262 of 2003 ........................................ Dated this the 13[th] day of July, 2017. ## **JUDGMENT** The plaintiff in OS.No.314/1991 on the file of the Munsiff Court, Chittur is the original appellant herein. The suit was one filed by the plaintiff for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property with following allegations: The plaint schedule property is part of other properties allotted to the plaintiff as per Ext.A1 partition deed No.628/65 of SRO, Koduvayur and he obtained Ext.A2 purchase certificate in respect of the same and he has been in possession and enjoyment of the property including the plaint schedule property and paying revenue for the same. The defendants, who are the members of the locality and belonging to the same community were trying to harass the plaintiff and humiliate him. On 16.7.1991, the defendants tried to trespass into the property which was obstructed by the plaintiff and they left the property. They would attempt to trespass into the property and it would be very difficult for the plaintiff to prevent them from doing the illegal acts. Hence the suit. 2. The defendants entered appearance and filed written statement contending that the suit is not maintainable. The description of the property is not proper and it is not sufficient to identify the property in dispute. If the plaintiff is intending in respect 2 S.A.No.262 of 2003 of 16x8 koles of property adjoining the temple, the plaintiff or his family members have no right over the same. Even if the property was included in the partition deed during 1965, he had relinquished all his claims in respect of the property and handed over to the defendants, who were the committee members of the society formed for the purpose of administration of the Uchi Mahagali temple situated in the property. He had executed a document in favour of the then President relinquishing his right in the property. Thereafter the temple committee has been in possession and management of the plaint schedule property and the property used to be auctioned and one Murukesan had taken the property in auction for the purpose of taking the yield and when he tried to exercise his right, that was objected by the plaintiff and using his political power, he is trying to take possession of the property. So the plaintiff has no title or possession over the property and prayed for dismissal of the suit. 3. The trial court framed the following issues for consideration. i. What is the correct identity of the plaint schedule property? ii. Whether the plaintiff is in possession of the plaint schedule property? iii. Whether the plaintiff is entitled for the injunction prayed for? 3 S.A.No.262 of 2003 iv. Reliefs and costs? 4. PWs 1 to 3 were examined and Exts.A1 to A6 and C1 and C2 were marked on the side of the plaintiff. DWs1 to 3 were examined on the side of the defendants. After considering the evidence on record, the trial court relying on Ext.C2 sketch and Ext.C1 report of the Commissioner, came to the conclusion that the plaint schedule property is second thak of item 3 of D schedule to Ext.A1 partition deed and the defendants have no right over the same and granted injunction and the court below also found that Exts.B2 and B5 are not sufficient to hold that the defendants got any right over the same. Aggrieved by the same, the defendants filed AS.No.265/1993 before the District Court, Palakkad which was made over to the First Additional District Court for disposal. 4. During the pendency of the appeal before the lower appellate court, the sole respondent died and his legal representatives were impeaded as supplemental respondents 2 to 10 as per order in IA.No.1219/1996 and 1220/1996. After reappreciation of evidence, the lower appellate court came to the conclusion that by virtue of Ext.B2, the plaintiff had relinquished his right in favour of the temple committee and the property has not been properly identified and as per Ext.A2, he has got right over 40 cents of land and he cannot have right over 53 cents of land as claimed on the basis of Ext.A1 partition deed and allowed 4 S.A.No.262 of 2003 the appeal, set aside the decree and judgment passed by the trial court and dismissed the suit. Dissatisfied with the same, the present second appeal has been filed by the appellants, who are the legal representatives of the original plaintiff in the court below. 6. While the appeal was admitted, following substantial questions of law have been formulated. i. Whether the lower appellate court was correct in law in holding that the plaintiff has lost title to the plaint schedule property admittedly covered by Ext.A1 title deed solely by virtue of Ext.B2 unregistered agreement allegedly executed in favour of an unregistered association? ii Has not the lower appellate court erred in interfering with the decision of the trial court about the legal efficacy of Ext.B2 agreement and Ext.B5 minutes book which have all been found to be legally invalid and unilaterally prepared cogent and convincing reasons? 7. Heard Sri. P.S. Appu, learned counsel representing Sri. T.C.Suresh Menon, counsel appearing for the appellants and and Sri.P.R. Venkitesh, learned counsel appearing for the respondents. 8. Learned counsel appearing for the appellants submitted that by virtue of Ext.B2 document, no right can be created in favour of the temple as claimed by the defendants and the trial court has properly appreciated the same and rightly found that the 5 S.A.No.262 of 2003 defendants are not having any right. But the lower appellate court had relied on Ext.B2 and also the discrepancy in the extent mentioned in Ext.A2 purchase certificate and came to the conclusion that the plaintiff has no title or possession over the property. Further even if the lower appellate court was of the opinion that there is some discrepancy in the identify of the property, an opportunity ought to have been given to the appellants to take out a proper commission to identify the property and ascertain as to whether the property claimed by the defendants is part of the disputed property or not. Such an exercise has not been done by the lower appellate court. He had relied on the decision reported in _**Purushothaman Nair v. Komalavallyamma**_ (2016 (2) KLT 877) and _**Shree Chand and others**_ v. _**Civil Judge (Sr. Div.)**_ (AIR 2016 Rajasthan 191) in support of his case. 9. On the other hand, learned counsel appearing for the respondents argued that it is a suit for injunction and when the defendants had disputed the title and identity of the property, then there is a duty cast on the plaintiff to take out a commission to identify the property which has not been done. Further if there is discrepancy in the extent mentioned in Exts.A1 and A2 and even if Ext.B2 is not a valid document and if the defendants were not in possession of the same, then that can be relied on for the purpose of proving their possession and as such, the lower appellate court 6 S.A.No.262 of 2003 was perfectly justified in dismissing the suit. 10. Admittedly, the plaintiff claims right over the plaint schedule property on the basis of Exts.A1 and A2 documents. The plaintiff has not shown the entire property covered by either Exts.A1 or A2 in the plaint, but he claims that he is in possession of 10 cents of property which he obtained as per Exts.A1 and A2, the identity of which has been disputed by the defendants in their written statement. Both the courts below did not go into the question regarding identity of the property before relying on evidence as to who is in possession of the property. In Exts.C1 and C2 - Commissioner's plan and report, it can be seen that was not prepared on the basis of the documents by taking out measurements. The sketch was drawn on the basis of the possession of the property pointed out by the parties alone. From the sketch, it cannot be said as to whether it is part of Exts.A1 or A2 property. Even at the time of argument, learned counsel for the appellants submitted that they have not included in the temple property in the plaint schedule and they have not claimed any right over temple property and they are only claiming property in their possession and not the property said to be in the management of the temple. 11. It is true that there is dispute regarding the genuineness of Ext.B2 document. The person who prepared Ext.B2 has not S.A.No.262 of 2003 7 been examined. PW1 had even disputed his signature in Ext.B2. When the signature and execution of Ext.B2 is denied by the plaintiff, then the burden is on the defendants to prove execution of the document. Further, if by virtue of Ext.B2 any right in the property has been relinquished, unless it is a registered document, no right will flow from that document. However, whether that can be relied on by the court for collateral purpose of possession has to be considered as it is only a suit for injunction. If the parties in possession of the property have taken even on the basis of the invalid document, they can protect their possession and the remedy of the plaintiff is to sue for recovery of possession. For that also whether the property covered by Ext.B2 is part of the property claimed by the plaintiff has to be ascertained. But this has not been done in this case. ## 12. In the decision reported in _**Jose Lalichan v. Augustine**_ (2011(4) KHC 847), it has been clearly held that when there is a dispute regarding the identity of the property in a suit for injunction, no decree for injunction can be granted without properly identifying the property on the basis of the document of title. Further, the plaintiff also has not shown the entire property which he obtained on the basis of Exts.A1 and A2 and also he did not mention which part of that property is in the paint schedule property. So there is no clarity in the description of the plaint 8 S.A.No.262 of 2003 schedule property mentioned in the plaint also. Under such circumstances, in view of the dictum laid down in the decision cited supra, this Court feels that an opportunity has to be given to the parties to identify the property on the basis of Exts.A1 and A2 and give an opportunity to the parties to amend the pleadings, if any required and even for claiming relief of recovery of possession and if it is found necessary for declaration of title as well, give opportunity to the parties to adduce further evidence in this regard. So the decree and judgment passed by the appellate court in AS.No.265/1993 of Additional District Court, Palakkad reversing the decree and judgment in OS.No.314/1991 of Munsiff Court, Chittur are set aside and the matter is remitted to the trial court for fresh disposal in accordance with aw. The trial court is directed to give an opportunity to the plaintiff to take out a commission to identity the property on the basis of Exts.A1 and A2 and also permit the plaintiff to amend the plaint, if required, suitably so as to avoid future litigation and multiplicity of proceedings between the same parties to file additional written statement if any by the defendants if the plaint is amended and also give an opportunity to the parties to adduce further evidence, if any required, on the basis of additional evidence collected and then dispose of the case in accordance with law. **==> picture [360 x 12] intentionally omitted <==** S.A.No.262 of 2003 9 decree and judgment passed by the Additional District Judge, Palakkad in AS.No.265/1993 reversing the judgment in OS.No.314/1991 are set aside and the matter is remitted to the trial court for fresh disposal in accordance with law as mentioned above after complying the directions mentioned above. Parties are directed to appear before the trial court on 18.8.2017. Considering the fact that the case is of the year 1991, the trial court is directed to take all earnest attempts to expedite the disposal of the case as expeditiously as possible, at any rate, within nine months from the date of appearance of the parties or receipt of a copy of the judgment, which ever is earlier. Registry is directed to send back the records along with the judgment to the trial court immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge cl 10 S.A.No.262 of 2003 ## **K. RAMAKRISHNAN, J.** ...................................... S.A.No.262 of 2003 ...................................... 13[th] day of July, 2017. **JUDGMENT**