IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 655 of 1994()
1. C.K.RAFEEQUE
... Petitioner
Vs
1. V.U.ISMAYIL
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.N.VISWANATHA IYER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/09/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
S.A.NO.655 of 1994
Dated, this the 7th day of September,2007
JUDGMENT
Defendants in O.S.No.277/1990 on the file of
Munsiff court, Thalassery are appellants.
Plaintiff is respondent. Respondent instituted
the suit seeking a decree for injunction. Plaint
schedule property is a shop building in
R.S.No.18/1 of Thalassery village. It admittedly
originally belonged to Kumbakaroth Koran.
According to respondent, under Ext.A1 assignment
deed, he purchased the property on 7.2.1973 and
the upstair portion of building which consists of
two rooms and a common verandah was rented out to
Kunnoth Branch of Indian Union Muslim League on
a monthly rent of Rs.50/-. According to
respondent, monthly rent was paid upto August
1989 and thereafter Muslim League Committee
surrendered possession of the building in
S.A.No.655/1994 2
November, 1989 and there was a fire in the
building whereunder portion of the roof
including windows and doors were destroyed.
Contending that respondents who are office
bearers of Sunni Students Federation and Sunny
Yuvagana Sangh have no right over the property
and attempted to trespass into the property, a
decree for injunction was sought for. Appellants
in their written statement contended that
building 2/63 in the upstair was taken on rent by
the President and Secretary of S.Y.S on a rent of
Rs.7/- in 1969 from Kumbakkoroth Koran and since
then they are in possession of property and
therefore respondent is not entitled to the
decree in respect of that portion of the
building.
2. Learned Munsiff on the evidence of PWs.1
to 4, Exts.A1 to A2(e) DWs.1 and 2 and Exts.B1 to
B5 and Exts.C1 and C2 granted a decree in favour
of respondent finding that appellants are not
tenants as claimed and they have no right over
S.A.No.655/1994 3
the building and the rooms are in the possession
of respondents. Appellants challenged the
decree and judgment before Sub court, Thalassery
in A.S.219/1992. Learned Sub Judge on
reappreciation of evidence confirmed the findings
of learned Munsiff and dismissed the appeal. It
is challenged in the second appeal.
3. Appeal was admitted formulating the
following substantial questions of law.
1. When defendants are in settled possession
of plaint schedule property, can a plaintiff file
a suit for injunction, to dispossess them by
unlawful methods.
2. When Commissioner submitted a report
without notice to defendants and later again
filed a report after inspection with notice to
the parties, whether court is justified in
accepting the first report.
4. Learned counsel appearing for appellants
was heard.
5. Advocate Mr.K.V.Sohan, learned counsel
S.A.No.655/1994 4
appearing for appellants vehemently argued that
Ext.B3 scene mahazar prepared by Sub Inspector of
Police, Dharamadam Police Sttion establish that
appellants were in possession of property when
Sub Inspector inspected the property and courts
below should not have ignored that valuable
evidence. Learned counsel argued that respondent
did not establish possession and evidence of
respondent establish their that S.Y.S was a
tenant of one of the shop room in the upstair
bearing door No.2/63 and therefore the decree
granted in respect of the said building is
unsustainable.
6. The fact that building originally
belonged to Kumbakaroth Koran is admitted.
Under Ext.A1 the property including the building
was assigned by Kumbakaroth Koran in favour of
respondent on 7.2.1973. What was contended by
respondent was that the entire upstair building
which consists of two rooms bearing door No.2/62
and 2/63 of Thalassery Municipality were taken on
S.A.No.655/1994 5
rent by Indian Union Muslim League and tenant
was in possession till it was surrendered in
November, 1989. The case of appellants is that
room No.2/62 was obtained by then office bearers
of Sunni Yuvagana Sangha from the original owner
Kumbakaroth Koran in 1969. Courts below on
appreciating the evidence found that there is no
evidence to substantiate the lease or possession
of appellants. Appellants did not examine Koran
to prove that there was a lease. Though Exts.B1
series of rent receipts were produced, without
examination of the landlord, receipts cannot be
relied on. Though learned counsel appearing for
appellants argued that Ext.B3 mahazar prepared by
police in Crime 112/1989 of Dharmadam police
station establish possession of appellant, as
rightly found by courts below without proving
Ext.B3 by executing the another, recitals therein
cannot be relied on. Appellants did not examine
either the Sub Inspector, who prepared the
mahazar or any of the attesting witnesses to the
S.A.No.655/1994 6
scene mahazar. In such circumstance, courts
below found that Ext.B3 cannot be relied on and
appellants were not the tenants of the building
as claimed by them.
7. On the evidence trial court and first
appellate court found that respondent has been in
possession of the plaint schedule property and
appellants have no manner of right or possession
over property and granted the decree. There is
no evidence to prove that appellants were in
possession of property much less in settled
possession of property. Respondent is therefore
entitled to the decree granted by the courts
below. There is no merit in the appeal. It is
dismissed. No cost.
M.Sasidharan Nambiar
Judge
Tpl/-