Vadakke Parambil Abdul Saleem and Vattakkarakandi Muhammed v. Kalladapoyil Adhrumankutty Haji and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 18TH DAY OF JULY 2011/27TH ASHADAH 1933 SA.No. 551 of 2002 (G) -------------------------AS.127/1999 of III ADDL.SUB COURT, KOZHIKODE OS.463/1995 of PRL.MUNSIFF COURT, KOZHIKODE-I ........... ## APPELLANTS/APPELLANTS/PLAINTIFFS:: 1. VADAKKE PARAMBIL ABDUL SALEEM, KEDAVOOR HOUSE, POONOOR DESOM, KOZHIKODE TALUK. 2. VATAKKAKARAKANDI MUHAMMED OF -DO-. BY ADVS.SRI.M.C.SEN (SR.) SRI.AVM.SALAHUDIN ## RESPONDENTS/RESPONDENTS-DEFENDANTS:: 1. KALLADAPOYIL ADHRUMANKUTTY HAJI, AGED 67 YEARS, S/O. SAIDUTTY HAJI, RAROTH AMSOM, CHOMBRA DESOM, KOZHIKODE TALUK. 2. KALLADAPOYIL ABOOBACKER KUTTY HAJI, AGED 74, S/O. SAIDUTTY HAJI OF -DO-. 3. KALLADAPOYIL SYED MOHAMMED, AGED 39, S/O. ABOOBACKER KUTTY HAJI OF -DO-. BY ADVS. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SMT.MEENA.A. SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN SMT.M.R.MINI RECEIVER BY ADV. SRI.K.R.KRISHNA KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2011, ALONG WITH SA. 556/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.HEMA ,J. ------------------------S.A Nos.551 & 556 of 2002 -------------------------Dated this the 18th July, 2011** ## **J U D G M E N T** Two separate suits were filed for injunction simpliciter restraining the same defendants (respondents in these appeals) from committing mischief, trespassing into the plaint schedule property, demolishing compound wall etc. But, plaintiffs in the said suits are different. Plaintiff in one of the suits (O.S.No. 741/1992) claimed title and possession over plots 'D and E' in Ext.C4(a), whereas plaintiffs in the other suit (O.S.No.463/1995) claimed title and possession over plots 'A and B' in Ext.C4(a). According to them, respondents herein attempted to trespass into the property, committed mischief and also demolished the boundaries. 2. Respondents entered appearance and disputed the title of plaintiffs by filing detailed written statements in O.S.No. 463/1995. Even additional written statements were filed. The main contentions raised by respondents were: i) that the property as described in the plaint schedule cannot be identified; ii) that the suit properties were described with reference to a commission **S.A Nos.551 & 556 of 2002** **2** plan, which was not produced in court; iii) that at the time of filing the suit, Ext.C4(a) was not in existence. 3. Respondents also contended that in a suit of 1958, the rights claimed by predecessor in interest of plots 'A to E' was found to be unsustainable and the suit was decreed in favour of “Kalpetta Estate”. One of the respondents herein was a party to the suit of 1958 and in the said suit, he was found to be a trespasser. A decree for recovery of possession was granted. But notwithstanding that, respondent no.2 herein continued to be in possession, since the decree for recovery of possession was not executed. 4. The predecessor in interest of the plaintiffs, Kunhammed Haji was also a defendant (D2) in O.S.1375/1958. Rights claimed by him was also found against him. The plaintiffs are now claiming that such Kunhammed Haji leased out the property to Beeran in the year 1996 and from the said Beeran, all the plaintiffs purchased the leasehold right in the said property. 5. But respondents in the suit of 1995 raised a contention that no lease is liable to be created subsequent to 1964 and as such, as per a lease allegedly created in 1996 in favour of Beeran, no right will flow in favour of plaintiffs. No person can claim right of a lessee based on alleged lease which took place in 1966, it is **S.A Nos.551 & 556 of 2002** **3** contended. 6. It is also contended by respondents that said Beeran was also not a party to the suit of 1958 since there was not a trespasser at that time. It is also contended that the right of Kunhammed Haji having been found to be not valid as per decree and judgment in a suit of 1958, the right claimed now through Kunhammed Haji is hit by res-judicata. Therefore, respondent has no valid title or possession over the property, it is contended by respondents. It is also contended that plaintiffs were not in possession of plots 'A to E' at any point of time, prior to the suit. 7. From the material proposition of facts and law asserted by plaintiffs and denied by defendants in the two suits, issues arose relating to the identity of the property, possession and title. Issues of fact as well as law also arise relating to identity, possession and title of the suit properties. The only issues framed by trial court are: 1. Whether the plaintiff is entitled to get the injunction, as prayed for? 2. Whether the suit is maintainable? 3. Whether the injunction prayed for is allowable? 4. Relief and cost? **S.A Nos.551 & 556 of 2002** **4** 8. It is true that it can be argued that in a suit for injunction simpliciter, question of title need not be raised as an issue, since possession alone will be relevant, as argued by learned counsel for appellant. But on hearing both sides, it is evident that on the facts of this case, an issue relating to the identity of the property and possession arose. But, trial court did not even raise an issue relating to identity or possession. Lower appellate court, however, raised the following point for consideration: “Whether the appellant/plaintiffs are entitled to injunction prayed for in the plaint?” 9. On going through the impugned judgment I find that trial court as well as appellate court went into details regarding title, identity and possession. In fact, without raising any issue relating to identity, possession and title, both the suits are dismissed. Appellate court held, “considering the entire evidence and preponderance of probabilities, plaintiff do not have any title or possession over the plaint schedule property as pointed by the Commissioner and noted in Ext.C4(a) plan and hence plaintiff are not entitled to injunction prayed for.” 10. In a suit in which even identity is under dispute and a mere perusal of the plaint schedule shows that it is not possible to identify the property with reference to the schedule, it was illegal **S.A Nos.551 & 556 of 2002** **5** for the court to enter a finding that plaintiffs are not in possession of the said property. Such a finding cannot be entered in respect of property which cannot be identified. It can be understood, if the finding is that it is not possible to say whether or not plaintiff is in possession of the property, since property cannot be identified. Entering a finding regarding possession and title over the property, which cannot be identified, is illegal. It is only if the property can be identified, findings can be entered by the court relating to possession or title of such property. 11. A reading of the plaint schedule in both suits show that property is described as “item no.14 in Commission plan”. Admittedly, the said commission plan is not before the court. Therefore, with reference to the said commission plan which is not produced before the court, property cannot be identified. As pointed out by learned counsel for respondent, in Ext.C4 commission report, it is clearly stated by Commissioner that he had showed the different plots A to E in Ext.C4(a) as stated to him by Beeran. The following substantial question of law is formulated by this Court in this second appeal: In a suit for prohibitory injunction relating to immovable property, when complicated questions of facts and law are involved relating to title, de jure possession and identity of the property, is it legal to decide **S.A Nos.551 & 556 of 2002** **6** the question of title, de jure possession and identity of the property, without framing issues? 12. Heard both sides. Perused the records. Learned counsel for the appellants strongly argued that the suit being one for injunction simpliciter, possession alone is relevant. If the court finds that possession of plaint schedule property is with the plaintiffs, the court ought to have granted an injunction, as prayed for. The only question to be decided is the possession and suit cannot be dismissed, after making a roving enquiry into the title, it is argued. As per Ext.C4 (a), plot nos.D and E belong to the plaintiff in O.S No.741/1992 and plot nos.A and B belong to the plaintiffs 1 and 2 in O.S.No.463/1995. The property was identified with reference to the boundaries by the commissioner and hence there was no difficulty for the court to grant an injunction restraining to trespass into such property, it is argued. 13. According to learned counsel for respondents, the report of the Commissioner-Ext.C2 will show that the Commissioner had shown the properties as plot nos.A to E as pointed out by the plaintiffs, plot was not measured nor they identified with reference to any existing boundaries, it is submitted. This fact is clear from the commissioner's report-Ext.C2. Therefore, no value can be attached to the plan or the report of the commissioner to identify **S.A Nos.551 & 556 of 2002** **7** the plaint schedule property. It was also argued that a plain reading of the plaint schedule itself will show that there is no demarcating marks to identify the plaint schedule property. Hence no injunction could be granted and the courts below have rightly dismissed both the suits. 14. It is also argued that by virtue of various documents produced by the defendants/respondents, it would be clear that appellants have no title over the property. The commissioner himself has reported that the property covered by the documents is situated 4 kms away from the plaint schedule property. It is also submitted that the person from whom the appellants obtained lease over the property could not have held any leasehold right and hence they cannot claim any title over the property. 15. Learned counsel for the appellants also placed reliance upon a decision of the Supreme Court in **Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs & Others** [(2008) 4 SCC 594] in support of his contentions. Referring to paragraphs 13 and 21, it was strongly argued that when the appellants are found to be lawful and peaceful possession of the property and such possession is interfered with or threat by the respondents, suits for injunction simpliciter will lie and the only question to be decided is whether the plaintiff was in possession, it is **S.A Nos.551 & 556 of 2002** **8** unnecessary to go into the details of title, it is argued. 16. On hearing both sides and also on going through the plaint and written statement, I find that in both the suits, the identity of the plaint schedule property is disputed. A reading of the plaint shows that the property is described as item no.14 in the commission report. The said commission report is not produced before court. It is also not clear from the plaint schedule as to which commission report appellants were referring to and to which suit the said commission report is filed. This is not a case where the plaint schedule property is referred to with reference to any commission report filed in the same suit. The plaint schedule was amended but in the original plaint itself, commission plan is referred to, without even mentioning the number of the suit in which commission plan was filed. 17. In the written statement and additional written statement, respondents have categorically taken up a plea that the plaint schedule property is not identifiable. In fact, it is clear from the written statement that the claim made by the appellants was with respect to a property lying in Re-survey No.41/1-B originally but, in the light of the written statement it was subsequently amended as Re-survey No.2/1-B. **S.A Nos.551 & 556 of 2002** **9** 18. In spite of clear averments in the written statement, appellants did not take any steps to amend the plaint schedule by describing the plaint schedule with clarity so that the property could be clearly identified. Even after production of Ext.C4 (a) plan, no attempt was made by the plaintiffs to get the plaint schedule amended. In such circumstances, since the suit is for a prohibitory injunction restraining the respondents from trespass, the court ought to have raised an issue relating to identity of the property. Without identifying the property, no prohibitory injunction can be granted. But no issue was framed. 19. It is also relevant to note from the pleadings that there is a strong dispute relating to the title of the appellants over the property. In the light of the contentions raised in the written statement, it is not a mere denial of title. Respondents contentions are based on several documents which include even a decree in a civil suit. It is also pertinent to note that respondents in the written statement raised a contention that if at all the appellants have any title over the property, it was decided in an earlier suit O.S.No.1375/1958, in which the predecessor in interest of the appellants was a party and hence the claim now made by the appellants is hit by res judicata. 20. It also appears from the written statement, **S.A Nos.551 & 556 of 2002** **10** commissioner's report and various documents produced by both sides that dispute is with respect to certain properties covered by Ext.A1 and those which are referred to in Exts.B1 to B7. But, as per the commission report, those properties are lying 4 kms away from the plaint schedule property. As per the contentions raised by the defendants, the properties covered by Exts.A1 to A7 were the subject matter of the suit O.S.No.1375/1958 filed by Kalpetta Estate and the predecessor in interest of the appellants and the respondents were parties to that suit and a decree was passed by which appellants predecessor in interest were found to have no possession over the property. The matter was taken up in appeal and also in second appeal and the judgment and decree in O.S. No.1375/1958 has become final. Exts.B2 and B3 are printed copy of the judgment in the appeals and Ext.B3 is the certified copy of judgment in the Second Appeal. 21. The defendants took up a contention that appellants may be referred to item no.14 in commissioner's plan Ext.B1 (a). The certified copy of the commission report in O.S.No.1375/58 was also produced. But the commissioner in Ext.C4 reported that Item 14 in Ext.B1(a) is lying 4 kms away from the plaint schedule property. A perusal of Exts.A1 to A3 and B2 may go to show that the property referred to therein are one and the same. It may **S.A Nos.551 & 556 of 2002** **11** appear (this fact is disputed by appellants) that the property covered by Ext.A3 is one of the items of properties referred to in O.S No.1375/1958 as revealed from Exts.B2 and B3. 22. In the above circumstances, it is evident that court has to resolve the dispute relating to the title to find out whether appellants were having de jure possession of the property. Several complicated questions of fact and law are to be resolved to find out whether the appellants are in possession of property covered by Ext.A1 to A3. Defendants/respondents in O.S.No. 463/1995 also raised a contention that the title raised by the appellants is on the basis of an agreement to lease of the year 1966 which is in favour of one Kunhammed Haji but such an agreement for lease dated 6.1.1996 is clearly invalid in view of Section 74 of the Kerala Land Reforms Act and no legal right could be claimed by the appellants going by their own contention, it was contended. 23. In such circumstances, this is a case where the title of the appellants over the property could not have been decided without framing any issue relating to title. It is needless to say that in respect of a vacant land where there are no building or structure as in the present case, appellants can only claim de jure possession. Therefore, title will have to be established by the **S.A Nos.551 & 556 of 2002** **12** appellants to prove the de jure possession of the appellants over the property claimed by them. In such circumstances also the court ought to have raised an issue relating to title to come to the conclusion whether appellants have de jure possession over the property but no issue is raised regarding possession. 24. Thus, in the absence of any issue being raised relating to identity of property, possession or title, the courts below ought not to have resolved the question relating to title or possession over the property. Now, a larger question will arise whether any suit for injunction simpliciter relating to immovable property, is it necessary to frame such issues and decide the disputed question of title, de jure possession etc. From the decision reported in **Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs & Others** [(2008) 4 SCC 594], the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as consequential relief are all referred to by the Supreme Court. 25. It is clear from paragraph 13 of the said decision, that in cases where plaintiff is in possession but his title to the property is in dispute or when the defendants assert title thereto and there is also a threat of dispossession from the defendants, the remedy **S.A Nos.551 & 556 of 2002** **13** of the plaintiff is to file a suit for declaration of title and consequential relief for injunction. The prayer for declaration will be necessary if the challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. 26. In cases in which plaintiffs believing that defendants are only a trespasser or wrongful claimant without title files a mere suit for injunction and in such suit defendants disclosed their defence and details of right or title claimed by them raise a serious dispute over the plaintiffs' title, then plaintiffs ought to have amended the plaint and converted the suit into one for declaration. Alternatively, he may also withdraw the suit for injunction simpliciter with permission of the court to file comprehensive suit for declaration and injunction. 27. It is interesting to note in this case that it may not be even possible to state whether the denial of title etc. is with respect to the property referred to in the plaint schedule, since the description is too vague to identify the property. Therefore, the court ought to have raised an issue and resolved the question of identity itself. At any rate, both the courts below committed an error in entering findings and resolving the disputed question of title and possession, without even identifying the property of the appellants to the plaint schedule. **S.A Nos.551 & 556 of 2002** **14** 28. As pointed out by learned counsel for respondents, as per Ext.C2, the commissioner has made it very clear that “we were not able to locate the property held by Vattakundungal Kunhammed Haji and has any other documents pertaining to such property were not produced before us”. Documents assigning property to K.P.Aboobacker Haji and Kunhammed Haji also were not produced before us. Though it was requested to mark the property in terms of the documents, it is also referred to para 6 of Ext.C2 that the dividing line between plots B & D was pointed out by the plaintiffs. Plot E lies on the southern portion of Plot D. In such circumstances, the courts ought not to have proceeded on the basis of the commission report and plan Exts.C2 and C4(a) to hold that Plots D & E are in possession of the appellants. 29. No decree could be passed on the basis of the evidence adduced in this case, especially in the light of ambiguity in the plaint schedule relating to the property. On hearing both sides, I am satisfied that both the courts were right in dismissing both the suits. However, the courts ought not to have proceeded to resolve the dispute relating to the title and de jure possession. Learned counsel for the appellants submitted that an opportunity may be given to them to convert the suit into a suit for declaration of title **S.A Nos.551 & 556 of 2002** **15** and injunction and for this purpose the case may be remanded. 30. On hearing both sides and on going through the records in this case, it is quite evident that the predicament of the appellants were brought to themselves by failing to raise an issue for title, failing to amend the schedule at the appropriate time, by seeking amendment or to convert the suit to one for declaration of title and injunction, especially since several complicated issues relating to facts and law arose in this case. This is a case where plaintiffs/appellants had sufficient opportunity to clarify the identity of the property but they have not done so. It cannot be said that there was no opportunity for the appellants to bring the necessary amendments and convert the suit. Hence, I am not inclined to remand the case after such a lapse of long period. These appeals are dismissed with costs. **Sd/-K.HEMA, JUDGE** ma /True copy/ P.A to Judge