IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 986 of 1998()
1. ABDUL RAHIMAN
... Petitioner
Vs
1. MARIYAMMA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.K.K.MOHAMED RAVUF
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :28/09/2010
O R D E R
M.N.KRISHNAN, J.
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A.S. No. 986 of 1998
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Dated this the 28th day of September, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and decree
of the Subordinate Judge’s Court, Thrissur in O.S.No.308/1994.
The suit is one for permanent injunction. It is the case of the
plainiffs that they had purchased the property described in the
plaint schedule by virtue of a series of documents in 1993 and
thereafter they had been in possession of the property and
defendants are attempting to trespass into the plaint schedule
property and hence the suit. On the other hand, defendants 1 and
2 would contend that plaintiffs are not having any right over the
property and also had denied the possession of the plaintiffs. They
would contend that 17 cents of land comprised in survey No.
24/12 was set apart to the share of Ibrahimkutty, who is the
brother of the predecessor in interest of the plaintiffs and he was
in possession of that property. The trial court on a consideration of
the materials dismissed the suit. It is against that decision the
plaintiffs have come up in appeal.
A.S. No. 986 of 1998 2
2. Heard. At the outset, I may like to point out that in
order to succeed in a suit for injunction, plaintiffs have to prove
their possession. Being an equitable relief those who seek equity
must do equity and they should come to the court with clean
hands. Now the documents relied upon by the plaintiffs are Exts.
A1 and A2, which are the power of attorney executed during 1985
and the said power of attorney is relied upon for protecting the
property purchased in 1993. Ext.A3 is a document executed by
Ayisu, daughter of Abdul Rehiman to the plaintiffs with respect to
6 7/8 cents comprised in survey No. 24/8. Ext.A3(a) is a
document executed by Amina infavour of the plaintiffs with respect
to the same extent comprised in Survey No. 24/8. Ext.A3(b) is a
document executed by power of attorney holder of one
Mariyumma infavour of the plaintiffs with respect to 6= cents of
property comprised in Survey No. 24/12. Ext.A3(c) is the
document executed by one Ahammedkuty infavour of the plaintiffs
with respect to 5= of property comprised in Survey No. 24/12 in
3 cents in Survey No. 24/5. Ext. A5 is the basic tax receipt
obtained after the said assignment deeds. Ext.A6 is a possession
A.S. No. 986 of 1998 3
certificate wth respect to some property in Survey Nos. 24/8 and
24/12.
3. The defendants would contend that the predecessor in
interest of the plaintiffs namely, Adbu from whose children,
plaintiffs had purchased the property got the property under
Ext.B1 partition deed in the year 1941. According to that, brother
of Abdu, namely, Ibrahimkutty was allotted some property under
Ext.B1 and the schedule is attached. Item No.33 is described as a
property having an extent of 17 cents comprised in Survey
No.24/12. Unfortunately, the plaintiffs did not produce the
schedule relating to Abdu so as to find out which are the properties
that are derived by Abdu under Ext.B1 partition deed. So the basic
documents relied upon by the parties is Ext.B1. If Abdu has no
right over the property, children will not get any right and
therefore, those children will not be in a position to assign the
property infavour of the plaintiffs. But being a suit for injuncton
and as the properties are not identified or attempted to be located
on the basis of Ext.B, it may not be correct to hold that the
plaintiffs are not having title to the property. It has to be stated
A.S. No. 986 of 1998 4
that the plaintiffs had not taken serious steps to get the property
properly located as per the basic documents. It is true that in a
suit for injunction, the relief can be granted if the plaintiffs are able
to establish that they are in possession of the property on the date
of suit. As stated by me earlier as the title and possession had
come into effect only in the last month of 1993 and the receipts
are also obtained on the basis of those documents. So those
documents by itself will not be sufficient to prove the possession of
the plaintffs over the property. Therefore, I also decline to grant a
decree infavour of the plaintiff, but I make it very clear that I had
not rendered any finding on the question of title and any
observation herein will not have any adverse effect on the
plaintiffs. The plaintiffs are at liberty to move the approprate court
with respect to their title. The appeal is dismissed, but under the
circumstances, without any order as to costs.
M.N.KRISHNAN, JUDGE
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