Sundaran and Omana v. L. Joys (Omanakutty), Sugathan and Mini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939** **RSA.No. 646 of 2014 (B)** **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 28-02-2014 IN AS 98/2002 of SUB COURT, KOTTARAKKARA** **AGAINST THE JUDGMENT AND DECREE DATED 30-10-2002 IN OS 202/1997 of MUNSIFF COURT, KOTTARAKKARA** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **---------------------------------** ## **1. SUNDARANGAN,** - **S/O.NANU, AGED 53 YEARS, PAINGAYIL VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, CHEPRA P.O., KOTTARAKARA-691 520.** ## **2. OMANA,** - **D/O.BHARGAVI, AGED 45 YEARS, PAINGAYIL VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, CHEPRA P.O., KOTTARAKARA-691 520.** ## **BY ADV. SRI.G.BHAGAVAT SINGH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** ## **-----------------------------------** **1. L.JOYS, (OMANAKUTTY), AGED 56 YEARS, PALLITHAZATHIL VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, CHEPRA P.O., KOTTARAKKARA-691 520** **2. SUGATHAN, S/O.L.JOYS, AGED 25 YEARS, PALLITHAZATHIL VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, CHEPRA P.O., KOTTARAKARA-691 520** **RSA.No. 646 of 2014 (B)** **-----------------------** **3. MINI, D/O.SUSEELA, AGED 23 YEARS, EDATHARA VEEDU, CHEPRA MURI, ODANAVATTOM VILLAGE, CHEPRA P.O., KOTTARAKARA-691 520.** **R1 TO R3 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SMT.PARVATHY NAIR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **[CR]** ## **B. KEMAL PASHA, J.** =================== R.S.A. No.646 of 2014 ==================== _Dated this the 17[th] day of October, 2017_ ## **J U D G M E N T** **-----------------------** Challenging the concurrent findings entered by the Munsiff’s Court, Kottarakkara in O.S.No.202/1997, followed by those of the Subordinate Judge’s Court, Kottarakkara in A.S.No.98 of 2002, the plaintiffs, who were non-suited, have come up in Regular Second Appeal. 2. The suit is one for declaration of title and possession, mandatory injunction, and perpetual injunction. According to the plaintiffs, the plaint schedule property, having an extent of 76 cents and excess land, was the subject matter of Exhibit-A4 dated 06.10.1969. ExhibitA4 was relating to 1 Acre and 35 cents of Government land, which was in the possession of one Prabhakaran. His elder R.S.A. No.646 of 2014 2 brother Gangadharan was similarly in possession of 1 Acre 82 cents of Government land. Prabhakaran sold the said 1 Acre and 35 cents of property to Janardhanan Pillai, through Exhibit-A4 sale deed. Similarly, Gangadharan sold the said 1 Acre 82 cents of property to Raman Pillai. Both ExhibitsA4 and A5 were executed on 06.10.1969. Janardhanan Pillai as well as Raman Pillai approached the Revenue Authorities for getting the land assigned. Consequently, Janardhanan Pillai got 99.5 cents of property out of the said 1 Acre 35 cents, assigned in his favour. 3. Thereafter, on 06.03.1984, Janardhanan Pillai executed Exhibit-A1 sale deed in favour of the 1[st] appellant and his brother Sudhakaran in respect of the said 99.5 cents of property and also in respect of the remaining extent by treating it as excess land along with the said 99.5 cents. Thereafter, in the year 1989, the 1[st] appellant along with Sudhakaran sold 46 cents out of 99.5 cents to one Varghese. In 1989 itself, Sudhakaran executed Exhibit-A2 R.S.A. No.646 of 2014 3 sale deed in respect of his half _oodukur_ right over the property in favour of the 2[nd] appellant, who is the wife of the 1[st] appellant. According to the appellants, they were in possession and enjoyment of 76 cents of property and excess land thereon, scheduled in the plaint, after excluding the 46 cents of property sold away from the 99.5 cents and excess land. It is alleged that the defendants have unauthorisedly and illegally trespassed into the portions of the plaint schedule property at its western portion and reduced that portion into the possession of the defendants, and hence the suit. 4. Originally, the suit was one for perpetual injunction. Subsequently, the suit was amended by incorporating the reliefs and pleadings for declaration of title and possession and, also for mandatory injunction. Defendants contended that the suit is not maintainable and further that Exhibits-A4 and A5 were not intended to convey any property either to Janardhanan Pillai or Raman Pillai. R.S.A. No.646 of 2014 4 According to them, it was only a temporary arrangement made by Janardhanan Pillai and Raman Pillai, who were friends of Prabhakaran and Gangadharan, for the purpose of getting it assigned and for re-conveyance. Even though Raman Pillai had re-conveyed the property on getting assignment of 1 Acre out of the 1 Acre and 82 cents of property, Janardhanan Pillai did not care to re-convey the said 1 Acre and 35 cents of property, after getting assignment of 99.5 cents out of it. 5. Both the courts below non-suited the plaintiffs by finding that the plaintiffs have no title or possession over the entire extent of property covered by the plaint schedule. 6. This Court has admitted this Regular Second Appeal on the following substantial questions of law: _“(i) Whether the courts below ignored Exts.A1, A2, A4 and A5, the documents produced to prove title and possession of the plaintiff over plaint schedule property?_ _(ii) Whether the court below has erred_ R.S.A. No.646 of 2014 5 _in giving predominance to oral evidence to the documentary evidence?”_ 7. Heard the learned counsel for the appellants and the learned counsel for the respondents. 8. The learned counsel for the appellants has argued that Exhibit-B1 could not have created any right of possession on the defendants over the property covered by Exhibit-B1, when the said property was the subject matter of Exhibit-A4. It has been argued that the vendor of Exhibit-B1 had no such property to convey and therefore, the defendants are not entitled to claim title or possession over the properties covered by Exhibit-B1. It has been argued that the courts below have committed a grave error in not decreeing the suit in favour of the plaintiffs. 9. _Per contra_ , the learned counsel for the respondents has argued that the suit is not maintainable, when 35.5 cents of property coming within the plaint schedule item is Government land, over which, the plaintiffs are not entitled R.S.A. No.646 of 2014 6 to get any title declared. It has been further argued that the plaintiffs have not sought for recovery of possession of the 35.5 cents of property, which is in the absolute possession and enjoyment of the defendants and therefore, any declaration cannot be granted within the meaning of the proviso to Section 34 of the Specific Relief Act. It has also been argued that when the possession of the defendants is not permissive, the plaintiffs ought to have sought for the relief of recovery of possession, either based on title or based on previous possession. 10. When it is the admitted case of the plaintiffs that the property was Government land covered by Exhibit-A4 and the assignment was obtained from the Government by Janardhanan Pillai for 99.5 cents of property only, the remaining extent of 35.5 cents of property out of the 1 Acre and 35 cents of property also could only be treated as Government land. It is true that subsequently, there was a conscious attempt on the part of the Janardhanan Pillai and R.S.A. No.646 of 2014 7 his successor in interest to treat the balance extent of property as excess land along with 99.5 cents of property. Exhibit-A4 clearly shows that the property covered by it was Government land. Still, the plaintiffs have no case that the said property is not Government land. When it is Government land, the plaintiffs cannot seek declaration of their title over the entire extent of property coming within the plaint schedule item. It is their admitted case that 46 cents of property out of 99.5 cents was sold away. Therefore, the remaining extent, on which, Janardhanan Pillai could claim title, was 53.5 cents only. At the same time, in the plaint schedule, the extent is shown as 76 cents and excess land instead of the said 53.5 cents. Matters being so, a relief of declaration of title cannot be granted in respect of the plaint schedule property. 11. The appellants have produced some documents most of which are revenue records as additional documents in the second appeal by resorting to the provision under R.S.A. No.646 of 2014 8 Order XLI Rule 27 of the Code of Civil Procedure. At the same time, the ground mentioned by the appellants for getting those documents admitted is that there was lack of proper legal advice and therefore, they could not produce the said documents. In order to get those documents admitted under Order XLI Rule 27 of CPC, it must be proved that despite due diligence, they could not produce the documents or that those documents were not within their possession or power. The appellants have no such case. The said question was decided in _**Union of India v. Ibrahim Uddin and another** [(2012) 8 SCC 148]_ wherein it was held in paragraph 40: _“The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is_ R.S.A. No.646 of 2014 9 _important, is not in itself a sufficient ground for admitting that evidence in appeal.”_ 12. The suit is not properly framed. The plaintiffs have sought for declaration of their title and possession over the plaint schedule property. At the same time, they have admitted that the defendants have trespassed into the building situated in the property and reduced the building into their possession. The plaintiffs want a relief of mandatory injunction for directing the defendants to vacate the building in the plaint schedule property. Both the courts below have concurrently found that the defendants are in possession of a portion of the property covered by the plaint schedule. Rightly or wrongly, the defendants are in possession of a portion of the plaint schedule property and they are occupying the building also. 13. According to the defendants, the building was put up by them, and they have been occupying the building for the last more than 40 years. In such case, the plaintiffs R.S.A. No.646 of 2014 10 ought to have sought for the relief of recovery of possession based on the previous possession of the plaintiffs within the meaning of Article 64 of the Limitation Act or in the alternative, they ought to have filed the suit under Section 6 of the Specific Relief Act, within six months from the date of dispossession. When the plaintiffs have omitted to seek the relief of recovery of possession in the suit, the suit is hit by the proviso to Section 34 of the Specific Relief Act. 14. In _**Ram Saran v. Ganga Devi** [1972 KHC 819]_ an identical situation was dealt with by a three Judges' Bench of the Apex Court. In that case declaration was sought for without seeking the relief of recovery of possession when it was found that the respondent was in possession of the portions of the property in question. It was held that when mere declaration alone was claimed, the suit was not maintainable without seeking the relief of recovery of possession. The question was dealt with in detail again in _**Union of India** (supra)_ wherein it was held as follows: R.S.A. No.646 of 2014 11 _“The Section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. In Ram Saran & Anr. v. Smt. Ganga Devi, AIR 1972 SC 2685, this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of Specific Relief Act, 1963 (hereinafter called 'Specific Relief Act' and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated_ R.S.A. No.646 of 2014 12 _observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also: Gian Kaur v. Raghubir Singh,(2011) 4 SCC 567).”_ 15. When recovery of possession of any portion of the plaint schedule property found in the possession of the defendants has not been sought for, no declaration of possession can be granted within the meaning of the proviso to Section 34 of the Specific Relief Act. 16. Apart from the above, there was no admission from the part of the plaintiff to get identified the portion of the properties in the possession of defendants. Such a portion ought to have been identified and separately scheduled in the plaint and recovery of possession of the same ought to have been sought for. Without such an exercise, the decree sought for cannot be granted. 17. Regarding the possession, it seems that both the courts below have concurrently found that a portion of the R.S.A. No.646 of 2014 13 property covered by the plaint schedule property is in the possession of the defendants. Those findings entered concurrently by both the courts below are mere finding on facts, which do not give rise to any substantial question of law. 18. From the discussions made above, it has come out that when the suit is not maintainable all the other matters involved in the suit do not warrant any further consideration. This Second Appeal is devoid of merits and is only to be dismissed, and I do so. In the result, this RSA is dismissed. In the nature of this appeal, there is no order as to costs. All the interlocutory applications in this appeal are closed. Sd/- **(B.KEMAL PASHA, JUDGE)** ul/DSV/19/10/17 // True Copy // ## P.A. To Judge