IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 420 of 1995()
1. M.T.V.KUNHIKANNAN NAMBIAR
... Petitioner
Vs
1. MANDEERAKATH ALEEMA UMMA
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/11/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A.No. 420 of 1995
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Dated this the 10th day of November, 2009.
JUDGMENT
The Second Appeal arises from judgment of learned Sub
Judge, Payyannur in A.S.120/1990 arising from judgment and
decree of learned Munsiff, Taliparamba in O.S.No.61/1989.
Appellant sued the respondents for decree for prohibitory
injunction against taking usufructs from the suit property claiming
that he is the owner in possession thereof as per Ext.A2,
assignment deed dated 12.12.1986 executed by respondent No.1.
It is also contended by the appellant that pursuant to a rental
arrangement, respondent No.1 was permitted to reside in the
house in the suit property, he paid the rent @ Rs.30/- per month
till 12.5.1988 and on demanding payment of the subsequent rent,
respondents threatened him demanding reconveyance of the
property for a consideration of Rs.2,000/-. Being apprehensive
about the conduct of respondents, appellant filed the suit
claiming relief as above stated. Respondents contended that
there was no sale in favour of the appellant and instead Ext.A2
was executed as a security for the loan of Rs.2,000/- taken by
respondent No.1 from the appellant. Respondents claimed that
they are in possession of the suit property and that there was no
rental arrangement as regards the house in the suit property.
Learned Munsiff found that Ext.A2 was only a security for
repayment of the loan, appellant has no possession of the suit
property and at any rate, he has come with unclean hands and is
not entitled to the discretionary relief of injunction. Accordingly,
the suit was dismissed. Appellant took up the matter in appeal.
Learned Sub Judge found from the evidence that appellant has
possession of the suit property other than the house situated
thereon but, agreed with the learned Munsiff that since appellant
has not come with clean hands, he is not entitled to the injunction
as prayed for. Hence, the Second Appeal.
2. The following substantial question of law is framed for a
decision.
1) When the court finds that total possession vested with the
appellant, is it proper and legal to deny relief of injunction on a
subjective theory of clean hands which lead the parties to take
law into their own hands.
3. It is contended by learned counsel for appellant that
having regard to the nature of possession appellant has over the
suit property, the courts below went wrong in denying relief of
injunction.
4. Counsel for respondents would contend that respondents
are in possession of the suit property and hence appellant is not
entitled to the injunction prayed for.
5. This being a suit for injunction based on possession, it is
contended by the learned counsel for appellant that no enquiry
into title is required. Ext.A2 is the assignment deed admittedly
executed by respondent No.1 in favour of the appellant. It states
that the suit property was assigned to the appellant for a
consideration of Rs.2,000/- and possession was transferred to the
appellant. Ext.A1 is the prior document produced by the
appellant. Ext.A3 is the Pattam deed dated 5.3.1984 executed by
one K.J.Chacko, in favour of the appellant. Appellant has also
produced other documents to support his case of possession.
Ext.A10 series are receipts for payment of revenue by the
appellant for the suit property. Appellant gave evidence as PW1
and testified to his case. On the other hand, respondent No.2
gave evidence as DW1 and proved Exts.B1 to B4 series. Ext.B1 is
the lawyer notice dated 16.12.1988 issued to respondent No.1 on
behalf of the appellant.
6. In Ext.B1, there is a demand for repayment of the loan
taken by respondent No.1 from the appellant. There is also
reference to Ext.A2 being executed as security for the said loan
transaction. It is based on Ext.B1 which is admitted by the
appellant that trial court found the appellant has no possession of
the suit property and that Ext.A2 is executed only as security for
due repayment of the loan. In Ext.B1, the amount of loan stated
is Rs.20,000/- but in Ext.A2, the assignment deed consideration
stated is only Rs.2,000/-. According to PW1, a sum of Rs.18,000/-
had already been paid to respondent No.1 and hence, in Ext.A2
the sale consideration was stated as Rs.2,000/-. That explanation
was not accepted by the learned Munsiff. However, it is not
necessary to decide in this proceeding what exactly is the amount
which respondent No.1 had taken by way of loan from the
appellant. Question is whether the appellant is entitled to the
injunction as prayed for.
7. It is true that the trial court found that appellant has no
possession of the suit property. That was on the finding that
Ext.A2 is only a security for the loan transaction. First Appellate
Court observed that even for the purpose of securing repayment
of the loan, there could be a document like Ext.A2 transferring
possession of the property to the appellant. In that view and on
the evidence on record that finding regarding possession of the
said property was entered in favour of appellant.
8. It is true that respondents have produced Exts.B3 series
and B4 series for payment of revenue for the suit property and
tax for the building. Of them, Ext.B3(a) and B4(a) are for the year
1987 but, it is seen Ext.A10(c) that revenue has been paid by the
appellant also. Ext.A4 is the petition preferred by the appellant
before Tahsildar concerned requesting to receive land revenue
from him. Based on the evidence on record, First Appellate Court
found that appellant has possession of the suit property except
the house in question. That is a finding on fact entered by First
Appellate Court on the evidence on record. So far as that finding
is not shown to be perverse or, not supported by evidence
interference in Second Appeal is not warranted.
9. Then the question is whether appellant is entitled to the
relief of injunction. The courts below found that on the facts of
the case he is not entitled to the discretionary relief. Appellant
came with the case that he is the absolute owner in possession of
the property which the courts below have not upheld in the light
of Ext.B1. In other words, it is suppressing the loan transaction
and Ext.B1 that appellant claiming to be the absolute owner of
the suit property sought relief of injunction which being an
equitable relief was within the power of the courts below to refuse
since appellant had not come with equity while seeking equity.
10. Having heard counsel on both sides and going through
the evidence on record, I do not find reason to interfere with the
discretion exercised by the courts below against grant of
injunction in favour of the appellant. The substantial question of
law framed is answered accordingly.
Second Appeal fails. It is dismissed without any order as to
costs.
Thomas P.Joseph, Judge
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