IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 466 of 1999(E)
1. YELATH LAKSHMI AMMA
... Petitioner
Vs
1. KOOKAL RAGHAVAN NAIR
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.KODOTH SREEDHARAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :25/01/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 466 of 1999
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Dated this the 25th day of January, 2011.
JUDGMENT
The defeated defendants are the appellants.
The parties and facts are hereinafter referred to as they
are available before the trial court.
2. The suit was in respect of two items of
properties. Item No.1 consists of 40 cents and item No.2
consists of 25 cents. The plaintiff claims to have
obtained the properties as per Exts.A1 and A2
respectively. The predecessor in interest of the
defendants was allotted the plaint schedule property as
per partition deed, which is on the north of item No.1.
Alleging that the defendants were trying to trespass into
the property, the suit was laid.
3. The defendants resisted the suit. They
challenged the validity of Ext.A1 partition deed, on the
basis of which the plaintiff laid claim to item No.1.
S.A.466/1999. 2
According to them, 10 acres of land comprised in Sy.
No.84/1D was outstanding on lease with Kunhikannan Nair,
the predecessor in interest of the defendants, and he had
obtained Ext.B1 purchase certificate. That property was
fraudulently included in the partition deed evidenced by
Ext.A1 deed and the plaintiff was not derived any right over
the suit property. They therefore prayed for a dismissal of
the suit.
4. It appears that there was a subsequent
amendment to the plaint. The defendants also filed
additional written statement. Based on the above pleadings,
necessary issues were raised by the trial court. The
evidence consists of the testimony of P.W.1 and documents
marked as Exts.A1 to A8 from the side of the plaintiff. The
defendants examined D.W.1 and had Exts.B1 to B6 marked.
Exts.C1 and C2 are the commission report and plan. The
trial court, mainly based on the commission report Ext.C1
and Ext.C2 plan came to the conclusion that the plaintiff was
unsuccessful in establishing possession over the suit
S.A.466/1999. 3
property and accordingly dismissed the suit. The plaintiff
carried the matter in appeal as A.S.55 of 1996. The lower
appellate court found that the trial court was not justified in
coming to the conclusion that the plaintiff had no possession
over the suit property and accordingly reversed the finding
of the trial court and decreed the suit.
5. Notice is seen issued on the following questions
of law:
“1. In a suit for injunction simplicitor, is not
possession of the property alone material and
unless the plaintiff establishes possession as on
the date of suit, should not the suit entail a
dismissal, even assuming that the plaintiff has
been able to trace title to the property?
2. When a decision rendered by a Court was
taken up in appeal and when a compromise
decree was passed in such appeal, will it not have
the effect of effacing the decision of the trial court
and does not the principle of merger apply in such
circumstances.
3. When a decision rendered by a Court is
taken up in appeal and when the said appeal
S.A.466/1999. 4
culminates in a compromise decision, and when
the decision of the former court thus merges with
that of the latter court, can the decision of the
former court be relied on for any purpose?
4. When a family arrangement or partition is
under serious attack on various grounds including
fraud, whether the existence of such family
arrangement/partition by itself would be sufficient
to uphold title and possession of the properties
thereunder.
5. Is not the impugned decision vitiated by
reason of misreading of the pleadings and the
evidence?
6. Whether under the facts and
circumstances, the impugned decree is
sustainable?"
6. Learned counsel appearing for the appellants
contended that the lower appellate court was not justified in
reversing the judgment and decree of the trial court. The
trial court had come to the conclusion that the plaintiff has
miserably failed to establish his possession over the suit
property. Being a suit for injunction, the only issue that
S.A.466/1999. 5
arose for consideration was whether the plaintiff is in actual
physical possession over the suit property as on the date of
suit. Even assuming that they had title to the suit property
as per Exts.A1 and A2, that will not be sufficient. Learned
counsel for the appellants drew the attention of this court to
Ext. C1 commission report which shows that there is no clear
boundary separating the property of the plaintiff from
adjacent properties. The commission report also shows that
the properties are lying contiguously. It is therefore
contended that the lower appellate court judgment and
decree are unsustainable in law.
7. Learned counsel for the respondents contended
that there may not be any confusion regarding the property
obtained by each of the sharers as per Ext.A1 since a plan is
appended to Ext.A1. Nobody has a case that the said plan is
either wrong and the sharers, who had allotted with shares
had not taken possession of the respective properties. The
predecessor in interest of the defendants being a party to
Ext.A1, it comes with little grace from the defendants
S.A.466/1999. 6
now to say that the partition deed is not binding on them
and it has no effect. In fact they conveyed a portion of the
property allotted to them under the partition deed. The plea
of fraud cannot be sustained because there was an earlier
suit between the predecessor in interest of the plaintiff and
defendants, in which the partition deed was put forward.
That was a suit of the year 1974. If as a matter of fact the
predecessor in interest of the defendant had any case that
the partition deed is a fraudulent one, he could have taken
steps to set it aside. Since that has not been done, there is
no merit in the contention that Ext.A1 is not binding.
Learned counsel also pointed out that the lower appellate
court has considered the issue in the proper perspective and
no grounds are made out to interfere with the finding of the
lower appellate court.
8. Ext.A1 partition deed is the document of title of
both the parties. The defendants have a contention that
their predecessor in interest, who was illiterate, was
defrauded by including the properties in his possession in
S.A.466/1999. 7
the partition deed Ext.A1. They have a contention that the
partition deed is not binding on them.
9. This contention, to say the least, is totally
unacceptable. The predecessor in interest of the defendants
namely Kunhikannan Nair was a party to Ext.A1 document of
the year 1967. In 1974 there was a suit between the
predecessor of the plaintiff and the predecessor in interest
of the defendants. That was based on Ext.A1 partition deed.
Therefore Kunhikannan Nair was fully aware of the fact that
the properties covered by Ext.B1 were subject matter of the
partition as per Ext.A1. Nothing was done by him in that
regard. Further, the defendants are not enjoying the
properties obtained by Kunhikannan Nair as per Ext.A1
partition.
10. There can be no difficulty in identifying the
property allotted to each of the parties as per Ext.A1 since a
plan is appended to the deed showing the shares allotted to
each of the sharers. The trial court heavily relied on the
commission report and plan to hold against the plaintiffs.
S.A.466/1999. 8
The lower appellate court has considered this aspect in
considerable detail and had come to the conclusion that the
reliance placed on Exts.C1 and C2 is not justified. Of course,
it is true that the plaintiff was not able to give complete
details about the property, but the fact remains that he sued
in respect of the properties obtained by him in the partition
evidenced by Ext.A1 and an assignment deed from one of
the sharers under the same deed. There is no case for the
defendants that the properties in respect of which the suit is
laid is not the property covered by Ext.A1.
11. It is also interesting to note that the plaintiff
had filed objection to the commission report and had prayed
that it may be remitted to the commissioner. The specific
allegation is that commission report and plan are incorrect
and contrary to the plan appended to Ext.A1. That does not
appear to have been considered at all and the trial court
relied on that report and plan.
12. As rightly noticed by the lower appellate
court, there is no question of any crisis in the identity of the
S.A.466/1999. 9
properties since as already noted, a plan is appended to the
partition deed. There is no case for the defendants that the
plan is either erroneous or the allocation is not as per the
deed. The lower appellate court, in the facts and
circumstances of the case, was therefore fully justified in
accepting the principle that possession follows title in the
peculiar facts and circumstances of the case.
There is no justification to interfere with the
finding of the lower appellate court, which is based on an
appreciation of the evidence on record. The finding is
essentially one of fact. No question of law, much less any
substantial question of law, arises for consideration in this
Second Appeal. This Second appeal is without merits.
Accordingly, it is dismissed. There will be no order as to
costs.
P. BHAVADASAN,
JUDGE
sb.