IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 756 of 2009()
1. PARUKUTTY AMMA, AGED 71 YEARS,
... Petitioner
Vs
1. COCHIN DEVASWOM BOARD,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/01/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.756 of 2009
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Dated this the 27th day of January, 2010.
JUDGMENT
Respondent appears through standing counsel Advocate K.Gopalakrishna Kurup.
2. Second Appeal arises from judgment and decree of learned Sub
Judge, Ottapalam in A.S.No.95 of 1999 confirming judgment and decree of
learned Munsiff, Ottapalam in O.S. No. 43 of 1998. Item No.1 of plaint
schedule is 1.08 acres in survey No.113/2 which according to the
appellant/plaintiff is part of a total of 2.03 acres and item No.2 is 92 cents in
survey No.113/5. According to the appellant, the said properties belonged in
jenm to Vadakkumnadha Devaswom wherefrom Chovvoor mana obtained a
lease as per registered lease deed No.244 of 1925. In that Tarwad there was a
partition as per document No.74 of 1960 and plaint schedule item Nos.1 and 2
were allotted to Arya Antharjanam who assigned it to Chekkutty Rowther as per
assignment deed No.874 of 1966. Husband of appellant said to have acquired
title and possession of the said properties as per Ext.A1, assignment deed
No.2345 of 1975 executed by the said Chekkutty Rowther. After the death of
husband, appellant is in possession and enjoyment of the said properties. It is
her case that item No.2 is possessed by her son-in-law while item No.1 is
possessed by herself where she is running a small bunk shop. It is the claim of
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appellant that herself and husband had mortgaged the said properties to a Co-
operative Bank. Alleging that respondent/defendant is attempting to trespass
into the said properties she sued for a decree for permanent prohibitory
injunction to protect her alleged possession. Respondent denied title and
possession of the appellant and claimed that as per decree in O.S.No.138 of
1974 it obtained a decree for recovery of possession of certain properties and
filed E.P.No.123 of 1996 against Chekkutty Rowther. As per order in the
execution petition, the property involved in that case was delivered over to the
respondent on 24.11.1997. That involved property comprised in survey
No.113/2. It is also contended that properties scheduled in the plaint are not
identifiable. Trial court observed that without proper identification of the
properties which the appellant has not done, title of the appellant cannot be
found. In that circumstances even if the appellant is shown to be in possession
of the suit properties she is not entitled to get a decree for prohibitory injunction.
First appellate court has generally concurred with the above view and confirmed
dismissal of the suit. Hence the Second Appeal urging by way of substantial
question of law whether courts below committed error in holding that injunction
cannot be granted to the appellant inspite of the fact that she proved her
possession and title over the properties. it is contended by learned counsel for
appellant that Exts.C1 and C2 along with Exts.A1 to A4 are sufficient to show
title and possession claimed by the appellant. At any rate, courts below went
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wrong in holding that suit properties are not properly identifiable. Assuming so
courts below should not have entered into a finding regarding title or that Ext.A1
is hit by the rule of lis pendens. Learned standing counsel for respondent has
supported findings of the courts below and contended that no substantial
question of law is involved.
3. The suit is merely for prohibitory injunction. It is true that being a
suit for injunction what the court is required to decide primarily is the claim of
appellant that she is in possession of the suit properties. But, issue regarding
identify may also crop up in the light of the contentions raised by the respondent.
Ext.A1 is the assignment deed dated 23.12.1975 executed by Chekkutty
Rowther in favour of the appellant concerning the suit properties. It is not
disputed and Exts.B4 and B5, copy of judgment in O.S.No.138 of 1974 and
appeal arising therefrom show that in respect of the property comprised in survey
No.113/2, respondent had obtained a decree for recovery of possession from
Chekkutty Rowther , admittedly is the assignor of appellant under Ext.A1.
Exts.B1 and B2 are the copy of amin’s report and account in the said suit.
Decree was put up into execution by the respondent and delivery of property was
taken on 24.11.1997. Ext.A1, I stated is executed on 23.12.1975 concededly
when O.S.No.138 of 1974 filed by the respondent against assignor of appellant
was pending consideration. Hence if Ext.A1 concerned the whole or any
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portion of the property which was the subject matter of O.S.No.138 of 1974
certainly the rule of lis pendens under Section 52 of the Transfer of Property Act
would apply and hence the title and possession claimed by the appellant would
only be subject to the result of the suit which admittedly ended in a decree in
favour of the respondent and based on which respondent has taken possession
through court. A further fact to be noted is that Exts.B4 and B5 show that the
Land Tribunal found that Arya Antharjanam, assignor of Chekkutty Rowther got
tenancy right only in respect of 86 cents and accordingly Chekkutty Rowther got
title and possession over 86 cents whereas as per Ext.A1, he has purported to
convey 1.08 acres in survey No.113/2 and 92 cents in survey No.113/5. It is
pertinent to note that Chekkutty Rowther is tracing title over the said properties
to Arya Antharjanam who is said to have acquired the said properties as per
partition deed No.74 of 1960. Concededly, appellant had not got the suit
properties measured with the assistance of surveyor to show that the suit
properties do not form part of any property involved in O.S.No.138 of 1974. It is
in these circumstances that courts below refused to grant relief of injunction in
favour of the appellant. Having regard to the controversy involved and the
failure of the appellant to take a survey commission for measurement of the suit
properties, I do not find reason to interfere with the finding of courts below that
appellant is not entitled to get the relief of injunction as prayed for.
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4. I stated that this is a suit for injunction alone. True that in a suit for
injunction reference can be made to title claimed by the parties but, for the
limited purpose of deciding the issue regarding possession. Such reference is
generally called for in the matter of vacant land where the principle that
possession follows title may have to be applied. Concededly the suit properties
do not come in that category so that a reference to title was not essential to
prove the claim of possession. Moreover in a suit for injunction if the matter
involves complicated questions of fact and law relating to title, parties should be
relegated to the remedy of a comprehensive suit for declaration of title. (See
Anathula Sudhakar v. P.Buchi Reddy (dead) By Lrs. and others
(2008) 4 SCC 594) I must bear in mind that there is no relief of declaration of
title prayed for nor has appellant had paid court fee under Section 27(a) of the
Kerala Court Fees and Suits Valuation Act. Therefore an enquiry into title of the
appellant was not called for. Hence the finding if any entered by the courts
below as to the title claimed by the appellant was not necessary for a decision of
the dispute involved in this case. On facts and circumstances of the case
proper course is to relegate the parties to a comprehensive suit on the title as
the law permits. Issue regarding title is left open for decision. However on the
facts and circumstances of the case I do not find reason to interfere with the
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dismissal of the suit . On hearing counsel on both sides and going through the
judgment under challenge I do not find any substantial question of law involved
requiring admission of this appeal.
Resultantly without prejudice to the right of the appellant if any to institute
a comprehensive suit on the strength of title claimed by her and seeking
appropriate reliefs as permitted by law, Second Appeal is dismissed in limine.
I.A.No.1657 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks