Suresh and others v. Thevarakkavu Bhagavath i Kshethra Kshema Trust

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY,THE 25[TH] DAY OF NOVEMBER 2021/4TH AGRAHAYANA, 1943** **RSA NO. 85 OF 2019** **[AGAINST THE JUDGMENT DTD.28.07.2018 IN AS 226/2012 OF THE COURT OF ADDITIONAL DISTRICT JUDGE-V ARISING FROM THE JUDGMENT DTD.25.10.2011 IN OS 272/2010 OF IST ADDITIONAL MUNSIFF COURT,ERNAKULAM]** ## **APPELLANTS/APPELLANTS/PLAINTIFF:** 1 SURESH, AGED 43 YEARS S/O. UNNIKRISHNAN, RESIDING AT NINE STAR APARTMENTS, A3 AYYAMPILLYCHIRA LANE, PISHARIKOVIL ROAD, EROOR P.O., NADAMA VILLAGE, KANNAYNNUR TALUK, ERNAKULAM DISTRICT. 2 SUDHEER, AGED 45 YEARS S/O. UNNIKRISHNAN, RESIDING AT POOPPANA VEETTIL, THEVARAKKAVU NADAMA VILLAGE, KANNAYANNUR TALUK, ERNAKULAM DISTRICT. 3 C.K. UNNIKRISHNAN, AGED 78 YEARS S/O. KOCHU NARAYANA, POOPPANA VEETTIL, THEVARAKKAVU, NADAMA VILLAGE, KANNAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.K.C.KIRAN SRI.M.DEVESH SHRI.ANISH ANTONY ANATHAZHATH SHRI.THAREEQ ANVER A.MEENA R.S.A.No.85 of 2019 :-2-: ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 THEVARAKKAVU BHAGAVATHI KSHETHRA KSHEMA TRUST REPRESENTED BY ITS PRESIDENT, T RAJEEV, NADAMA VILLAGE, KANNAYANNUR TALUK. 2 T. RAJEEV, PRESIDENT, THEVARAKKAVU BHAGAVATHI KSHETHRA KSHEMA TRUST, NADAMA VILLAGE, KANNAYANNUR TALUK. 3 MURALEEDHARAN, SECRETARY, THEVARAKKAVU BHAGAVATHI KSHETHRA KSHEMA TRUST, NADAMA VILLAGE, KANNAYANNUR TALUK. BY ADVS. SRI.V.K.BALACHANDRAN SMT.DRISHYA K.PRAKASH SRI.K.P.SREEKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING: R.S.A.No.85 of 2019 :-3-: ## **J U D G M E N T** This R.S.A is directed against the judgment and decree dated 28.7.2018 in A.S.No.226/2012 of the court of Additional District Judge-V, Ernakulam arising from the judgment and decree dated 25.10.2011 in O.S.No.272/2010 of the first Addl.Munsiff Court, Ernakulam. 2. The plaintiff instituted the suit for mandatory injunction praying for a direction to the defendants to return the original pattayam and the original settlement deed No.2288/01 of SRO, Thripunithura to the plaintiff. 3. The plaintiff is a destitute. Out of her anxiety to be looked after during her old age, she happened to execute a document bona fide believing that her welfare will be taken care of by the Thevarakkavu Bhagavathy Kshethra Kshema Trust/the first defendant in the suit. Later, she realised that the Office bearers of the first defendant cleverly lured her to execute Ext.A1 settlement deed making her to believe that she would be protected during the fag end of her life. Finding that the defendants are neglecting the promise they made, on enquiry, she R.S.A.No.85 of 2019 knew that the settlement deed was executed incorporating the terms and conditions without knowing its contents. The plaintiff thereupon cancelled Ext.A1 by virtue of Ext.A2 and called upon the defendants to return the original of Ext.A1 including the prior documents. The defendants did not honour her request. Hence, the suit was filed for return of the documents by way of mandatory injunction. 4. The first defendant through its office bearers contended that Ext.A1 settlement deed was executed by the plaintiff in favour of the first defendant voluntarily and the settlement deed was taken effect. 5. On appreciation of the evidence, the trial court held that the property surrendered to the first defendant was on the basis of the settlement deed and they acted upon it. Ext.A2 cancellation deed was not approved by the court. Accordingly, the suit was dismissed. 6. The plaintiff preferred an appeal before the first appellate court. The appeal was dismissed confirming the judgment and decree of the trial court. Hence, the plaintiff filed R.S.A.No.85 of 2019 :-5-: this second appeal. 7. Heard Sri.Krishnan Unni the learned Senior counsel for the appellants and Sri.K.P.Sreekumar, the learned counsel for the respondents. 8. The gist of the plaintiff's case against the defendants was that she never had executed original of Ext.A1 settlement deed in favour of the first defendant and that she had put signature in Ext.A1 without knowing its contents. It is her case that the original of Ext.A1 allegedly executed by her was not executed with her knowledge and consent. The plaintiff has not filed suit for cancellation of instrument under Section 31 of the Specific Relief Act. Ext.A1 is of the year 2001. However, the suit was only filed in 2010. The plaintiff, being a party to the document, she ought to have filed the suit within the period of limitation as provided under Article 59 of the Limitation Act. She also did not seek declaration that the document was executed without her knowledge and consent. The suit was also not filed to declare the original of Ext.A1 as invalid under Section 34 of the Specific Relief Act, within the period of limitation. The suit was R.S.A.No.85 of 2019 :-6-: drafted seeking to pass a decree for mandatory injunction directing the defendants to return the original title deed and the original of Ext.A1 settlement deed to the plaintiff. The suit itself is not maintainable. 9. Section 39 of the Specific Relief Act does not define, but categorically deals with grant of mandatory injunction. Firstly, what acts are necessary in order to prevent a breach of an obligation; and, secondly, the requisite acts must be such as the Court is capable of enforcing. Mandatory injunction is generally granted when there is a threat of infraction of the plaintiff's right before the infraction has actually occurred. 10. In the case at hand, the suit for mandatory injunction is unsustainable. Such a suit is not maintainable e before the civil court. The original of Ext.A1 was executed by th plaintiff before the Sub Registrar in accordance with the registration rules. The original of Ext.A1 along with the prior title deed was handed over to the defendant. In case the plaintiff alleges that the original of Ext.A1 was executed under vitiating circumstances, the plaintiff ought to have instituted a suit for R.S.A.No.85 of 2019 :-7-: setting aside the document or for declaration that the original of Ext.A1 is invalid. The document is voidable in nature. Since no suit to set aside the document or to declare the document as invalid was filed, the present suit for mandatory injunction simplicitor filed before the trial court is not maintainable. The suit ought to have been dismissed on that ground alone. 11. According to the learned Senior counsel appearing for the plaintiff, the two courts below conducted detailed enquiry regarding the principles of _non est_ factum and other vitiating circumstances alleged in the plaint and held that the original of Ext.A1 was executed voluntarily by the plaintiff. According to the learned senior counsel, such a finding is unwarranted in a suit for mandatory injunction of this nature. It is further contended that during the pendency of the first appeal, the plaintiff passed away and her legal heirs have been prosecuting this appeal. There is a building in the plaint schedule property in which the original plaintiff was residing even after the execution of Ext.A1 settlement deed in favour of the defendants. In Ext.A1, she had reserved her right to reside in the building therein for R.S.A.No.85 of 2019 the rest of her life and assigned all other rights over the property to the temple trust. On the date of suit, she was residing in the plaint schedule building. 12. Per contra, the learned counsel for the defendants submitted that the intention of the legal heirs of the plaintiff is to initiate second round of litigation. On the other hand, the learned Senior counsel for the appellants submitted that all other findings may not be required for the disposal of the case as the suit itself is not maintainable. It is true that the frame of suit is wrongly made, presumably for the reason that suit for cancellation of document or declaration is not maintainable long after the execution of the document. 13. Relying on the decisions reported in **Vannathi** v. **Valappil Janaki and others Puthiya Purayil Paru and others** [AIR 1986 Kerala 110], **Mercy** v. **Aisha Ummal** [1987(2) KLT 166], **Mathu** v. **Cherchi** [1990(1) KLT 416], v. **Gopalakrishnan.M.K. and others Rajamma.M.K. and others** [ILR 2006(3) Ker. 524] and **Daulat Singh(D) Thr. LRs.** v. **State of Rajasthan and Ors.** [AIR 2021 SC 394], the R.S.A.No.85 of 2019 :-9-: learned counsel for the respondents contended that the settlement deed executed by the plaintiff is perfectly valid and settlement deed has come into effect. The learned counsel further contended that the present suit for mandatory injunction without seeking the main relief is not maintainable. 14. On a perusal of the entire evidence on record, this Court is of the view that both the trial and the appellate court rightly held that a suit of mandatory injunction does not lie before a civil court. When the suit itself is not maintainable, it is absolutely not required to burden the legal heirs of the plaintiff in respect of other findings relating to _non est_ factum and execution of Ext.A1 settlement deed by the plaintiff. This is necessary for the simple reason that the legal heirs did not get an opportunity to contest the proceedings before the trial court and they were impleaded after the death of the plaintiff during the pendency of the first appeal. The right of the legal heirs to be in possession of the building in continuation of their predecessor in interest cannot be curtailed until they are evicted in a process known to law. R.S.A.No.85 of 2019 15. No substantial questions of law are involved in this appeal. This Second Appeal is dismissed without prejudice to the rights of the legal heirs of the plaintiff, if any, to get their rights adjudicated in accordance with law subject to the period of limitation, if so advised. Resultantly, this second appeal is dismissed as stated hereinabove. No costs. Pending applications if any stand closed. Sd/- **N.ANIL KUMAR, JUDGE** MBS/