Sree Pattyakkala Durga Devi Temple rep. by Madathipathi Swami Padmanabha v. Sivaji S/o. Muthu Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935** **FAO.NO. 1 OF 2011 ( )** **----------------------------------A.S. NO.52 OF 2007, SUB COURT, PALA O.S. NO.49 OF 2006, MUNSIFF'S COURT, ERATTUPETTA** **APPELLANT(S)/APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------------------------** **SREE PATTYAKKALA DURGA DEVI TEMPLE REP.BY MADATHIPATHI SWAMI PADMANABHA, R/AT SREE PATTYAKKALA DURGA DEVI TEMPLE S/O.NJANAPRAKASAN, VADAKKEKARA MURI, TEEKOY VILLAGE.** **BY ADVS.SRI.NAGARAJ NARAYANAN SRI.N.NARAYANAN NAIR SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.RAFEEK. V.K. SRI.SEBIN THOMAS** ## **RESPONDENT(S)/APPELLANT/DEFENDANT:** **---------------------------------------------------------------** **SIVAJI,S/O.MUTHU PILLAI, ATTOOR HOUSE, VAGAMON NORTH DIVISION, VAGAMON VILLAGE MEENACHIL TALUK.** **R,R BY ADV. SRI.BABY THOMAS R,R BY ADV. SRI.GIGIMON ISSAC** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== F.A.O. No.1 of 2011 ==================================== Dated this the 15[th] day of July, 2013** ## **J U D G M E N T** Though notice was ordered on all the substantial questions of law framed in the memorandum of appeal, the only substantial question of law arising for a decision in this appeal is as under: When a relief of prohibitory injunction alone is sought based on possession of the suit property is it essential that the plaintiff has to prove the title he has claimed over that property? 2. This appeal arises from the judgment dated 31.08.2010 in A.S. No.52 of 2007 of the Sub Court, Pala setting aside judgment and decree for prohibitory injunction granted by the learned Munsiff, Erattupetta in O.S. No.49 of 2006. 3. Property described in the plaint schedule is 29 cents in Sy.No.349/3-1 of Teekkoy Village. The appellant claimed that it acquired the said property and is in possession as per Exts.A2 and A3, assignment deeds of the year, 2006. It is the case of the **F.A.O. No.1 of 2011** -: 2 :- appellant that the extent referred to in Exts.A2 and A3 together with excess land referred to in Ext.A3 is separated from the adjoining properties by specific boundaries and is in its possession and enjoyment. In the suit property a temple is situated. The appellant apprehend trespass by the respondent and hence the suit for prohibitory injunction paying court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). 4. The respondent contended that the suit property is part of a total extent of two acres in Sy. No.349/3-1, etc., which belonged to one Scaria Varkey but is in his possession since the last 40 years. The respondent denied title and possession claimed by the appellant over the suit property. 5. The trial court answered the issue regarding possession in favour of the appellant and granted a decree for prohibitory injunction. On appeal at the instance of the respondent, it was contended that since title claimed by the appellant is disputed by the respondent, a finding regarding title of the suit property is required. The learned Sub Judge found merit in that contention, accepted it and set aside the judgment and decree of the trial court. The suit was remitted to the trial **F.A.O. No.1 of 2011** -: 3 :- court for fresh decision in the light of observations made in the judgment of the lower appellate court. That order of remand is under challenge in this appeal. 6. The learned counsel for the appellant, placing reliance on the decisions in **K.R. Krishnankutty Nair v. Subramonian** (1988 [1] KLT 886), **Mohammed v. Pathumma** (1989 [2] KLT 426) and **Ishwara Bhat v. Annappa Naika** (1997 [1] KLT 420) contended that a person in possession is entitled to get a decree for prohibitory injunction to protect such possession. 7. The learned counsel for the respondent contended that on the facts and circumstances of this case, a decision on title is necessary and without that, a mere suit for prohibitory injunction cannot be sustained. It is contended that the respondent did not get sufficient opportunity to adduce evidence. The learned counsel points out that after evidence of the appellant was over, the respondent was not given opportunity to adduce oral evidence and hence remand of the case is justified. 8. As the plaint averments reveal and since court fee is paid only under Sec.27(c) of the Act, it is clear that though the appellant has traced its title and possession of the suit property **F.A.O. No.1 of 2011** -: 4 :- to Exts.A2 and A3, relief of prohibitory injunction is claimed based on (alleged) possession of the property with the appellant. It is not as if whenever title claimed by the appellant is disputed by the respondent, the former is obliged to seek a declaration of title. The Supreme Court in **Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs. And Others** ([2008] 4 SCC 594) held that complicated questions of title are not required to be gone into in a suit for injunction and that in such situation parties should be relegated to a comprehensive suit on title. 9. The appellant produced Ext.X1 and X2, certificate of possession and plan issued by the Village Officer to show that it is in possession of the property. The appellate court has not acted upon Exts.X1 and X2 for the reason that the said documents were not proved by examining the person who issued the same. On going through the records it is seen that Exts.X1 and X2 are proved through P.W1. I also find that the only question put to P.W1 in cross-examination is that Exts.X1 and X2 are obtained by the appellant influencing the Village Officer concerned. P.W.1 answered in the negative. This is not a case where marking of Exts.X1 and X2 through P.W1 was resisted by the respondent. **F.A.O. No.1 of 2011** ## -: 5 :- But I am not going into the probative value of the said document. 10. The learned Sub Judge has observed in paragraph 11 of the judgment that the appellant is claiming title and possession of the suit property based on Exts.A2 and A3, proceeded to discuss the claim of title based on the relevant documents parties produced and observed that the learned Munsiff ought to have framed specific issue regarding title instead of framing issue No.2 which indirectly goes to the question of title also and directed the appellant to pay court fee to decide question of title. In paragraph 12 it is observed that since title and identity of the property is in dispute, learned Munsiff ought to have adverted to that question. 11. Having gone through the judgment of learned Sub Judge on the face of averments in the plaint and the relief sought for by the appellant I am inclined to think that the issue regarding title is not required to be decided in this suit. For, even as asserted by the learned counsel for the appellant, the appellant is only claiming a decree for prohibitory injunction on the strength of possession of the suit property claimed by it. Therefore what is relevant for decision by the learned Sub Judge is only whether the suit property is identifiable by boundaries and whether it is **F.A.O. No.1 of 2011** -: 6 :- in the possession and enjoyment of the appellant. 12. I must also notice that in a suit for injunction based on possession, it is not necessary to go into the question whether the defendant is in possession. The plaintiff who claims to be in possession has to prove the same. If the plaintiff fails to prove the possession he claims, he is not entitled to get the relief of injunction. I do not forget that in a suit for injunction the defendant cannot raise a plea of jus tertii but that situation does not arise since the respondent-defendant claims to be in possession of the suit property. 13. In the circumstances the lower appellate court was not right in observing that the learned Munsiff was required to frame a specific issue regarding title and decide that also. I hold that trial court was required to decide the suit only based on the possession the appellant claimed. 14. But I am not inclined to interfere with the ultimate order of remand ordered by the learned Sub Judge for the reason that the respondent was not given sufficient opportunity to adduce evidence. It is seen that only Exts.B1 and B2 are marked on the side of the respondent. He did not adduce oral evidence. Learned counsel submitted that it was because the respondent did **F.A.O. No.1 of 2011** -: 7 :- not get sufficient opportunity. Having regard to the contentions the respondent has raised I am inclined to give opportunity to the parties to adduce further evidence if any. 15. The substantial question of law framed is answered as above. The appeal is allowed in part as under: (i) Findings and observations made by the learned Sub Judge, Pala in the judgment dated 31.08.2010 in A.S No.52 of 2007 that the appellant is required to plead and prove its title over the suit property would stand set aside.. (ii) Order of remand passed by the learned Sub Jude in that case to give the respondent opportunity to adduce further evidence is not interfered with. (iii) The learned Munsiff is directed to decide the claim of possession made by the appellant and decide the issue of possession. (iv) Both sides will get opportunity to adduce further evidence regarding possession claimed by them. (v) Parties are directed to appear before the learned Munsiff on 19.08.2013. (vi) The learned Munsiff, Erattupetta is directed to dispose **F.A.O. No.1 of 2011** -: 8 :- of the suit as early as possible, and at any rate within six months from the date of receipt of a copy of this judgment. (vii) Registry is directed to transmit records of the case to the trail court immediately. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv