Sivalingappa Gowder v Balabadran and The Assistant Executive Engineer, Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 **RSA.NO. 444 OF 2010()** --------------------- {AS.170/2009 OF THE DISTRICT COURT, PALAKKAD OS.670/2006 OF THE ADDL.MUNSIFF COURT, PALAKKAD} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------- SIVALINGAPPA GOWDER,AGED 80 YEARS, S/O.ANANTHARAMA GOWDER,RESIDING AT PRESENT AT PATHAYAM,CHULLIMADA, KANJIKODE,PALAKKAD. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S)/: RESPONDENTS/DEFENDANTS: ------------------------------------------------------- 1. BALABADRAN,AGED 71 YEARS,S/O.APPUKUTTAN, RESIDING AT KUNNUKADU HOUSE, THENKURUSSI VILLAGE,ALATHUR TALUK. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, SULTHANPET SECTION,VYDHUTHI BHAVAN, T.N ROAD,PALAKKAD. R1 BY ADVS. SRI.V.V.ASOKAN & SRI.K.S.SAJEEV KUMAR R2 BY ADV.SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **RSA.NO. 444 OF 2010** :: ## **ORDER ON I.A.No.1043/10 IN RSA.NO. 444 OF 2010** DISMISSED. Sd/- 09.09.2010. (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. To Judge. ## **S.S.SATHEESACHANDRAN, J.** **--------------------------------------R.S.A.No.444 of 2010** **--------------------------------------Dated this the 9[th] day of September, 2010** ## **JUDGMENT** Plaintiff is the appellant. Concurrent decision rendered by the two courts below negativing his claim for a decree of injunction to restrain the defendants from drawing electric lines through the plaint properties, described as 9 items in the suit, is challenged in this second appeal. 2. Bereft of all paraphernalia added to the allegations raised in the plaint and also the contentions advanced by the 1[st] defendant, who set up rival claim of title and possession over the suit properties and the 2[nd] defendant, a statutory authority, the Kerala State Electricity Board, the fulcrum of controversy involved in the suit rested on the question whether under Ext.B2 delivery kaichit in execution of Ext.B1 decree passed in a previous litigation between the plaintiff and the 1[st] defendant, the 1[st] defendant had actually obtained delivery of possession of the suit ## **R.S.A.No.444 of 2010** ## **:: 2 ::** properties. Though nothing is mentioned or alleged in the plaint with respect to Ext.B1 decree and Ext.B2 kaichit, the plaintiff, at least at the stage when evidence was let in, in the case, conceded that there is a prior litigation between him and the 1[st] defendant leading to Ext.B1 decree. In fact, there was no challenge to Ext.B2 kaichit also, except to the extent that under the delivery effected by the Amin in execution of Ext.B1 decree, there was only a symbolic delivery and not physical delivery of possession. 3. The main thrust of challenge to impeach the decision concurrently rendered by the two courts by the appellant/plaintiff is that both the courts have given unmerited consideration and value to Ext.B2 kaichit, ignoring the fact that no positive evidence was let in to show that there was actual physical delivery of possession to the 1[st] defendant in execution of Ext.B2 decree. Without examining the Amin, who prepared Ext.B2 kaichit, or ## **R.S.A.No.444 of 2010** ## **:: 3 ::** producing relevant materials showing that there was physical delivery of possession, on the basis of Ext.B2 kaichit alone, no conclusion is possible as to the 1[st] defendant having obtained possession over the property, is the submission of the learned counsel for the appellant. Reliance is placed on C.P.Janammal v. C.M.Renganathan {AIR 1973 Madras 362} to contend that mere production of a delivery kaichit would not suffice the requirement of proving physical delivery of possession. 4. Order XXI Rule 35 and Rule 36 of the Code of Civil Procedure deals with the modes of delivery with reference to the decrees of possession over immovable property. The former rules shows that where a decree of possession of immovable property is passed, what is contemplated is actual delivery of the property. In fact, the next Rule 36 is only a corollary to the former where physical delivery is practically impossible as it would affect the interest of any other person, who is having ## **R.S.A.No.444 of 2010** ## **:: 4 ::** tenancy or other legal right which cannot be impaired by the decree under execution. Rule 36 of Order XXI of the Code clearly spells out that where the property covered by the decree in respect of an immovable property is “under the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree, to relinquish such occupancy” then, by order of the court, the delivery that has to be effected is such that it would not disturb the rights of the aforesaid persons. It is under that context, that alone, symbolical delivery with respect to decrees over immovable property can be proceeded with. The cardinal question emerging for consideration in the present case is whether the plaintiff, who is undoubtedly bound by Ext.B1 decree as he being a party to the proceedings leading to such decree, can set up a plea that there was only a symbolic delivery. It is not open to the plaintiff to raise such a plea. Further more it is seen from Ext.B2 kaichit produced before the ## **R.S.A.No.444 of 2010** ## **:: 5 ::** court that he had subscribed his signature in that document as to handing over possession to the decree holder when the Amin effected the delivery of decree scheduled properties. The decree holder and also judgment debtors have acknowledged in Ext.B2 that physical delivery of possession was effected by the court through the Amin. When such be the case, I find, both the courts below had laboured on the question whether a symbolic delivery of possession alone was made under Ext.B2 kaichit without any basis, especially where the plaintiff was a party under Ext.B1 decree. 5. The decision relied on by the counsel viz., C.P.Janammal's case would show that in that case at the time when delivery was effected, the suit property was, admittedly in the possession of tenants. Taking note of that material aspect, it was held that in execution there was only symbolical delivery of possession in that case. In the present case, the plaintiff while seeking a decree of ## **R.S.A.No.444 of 2010** ## **:: 6 ::** perpetual prohibitory injunction, an equitable relief, from the court did not make any mention of the previous suit between him and the 1[st] defendant leading to Ext.B1 decree and delivery under Ext.B2 kaichit. A party can seek a decree of perpetual injunction from the court only where he is able to show that such a relief is essential “to prevent breach of an obligation existing in his favour”. From the allegations raised in the plaint, it is seen, the appellant/plaintiff has set up a claim over the suit properties under pre-existing right as a member of a joint family, suppressing the material fact that after he derived such right over the property, there was a mortgage to the first defendant which ultimately led to Ext.B1 decree and physical delivery of possession of the property under Ext.B2 kaichit in favour of that defendant. When such be the case, there was no obligation existing in favour of the plaintiff to seek the equitable relief by way of perpetual injunction from the court. ## **R.S.A.No.444 of 2010** ## **:: 7 ::** I do not find any merit in the appeal and it is dismissed. Considering the the facts and circumstances, both parties are directed to suffer their costs. Sd/JUDGE (S.S.SATHEESACHANDRAN) sk/- //true copy// P.S. to Judge.