IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 550 of 1993(F)
1. PATTATHIL RAGHAVAN NAMBIAR
... Petitioner
Vs
1. N SUDHEER & ANOTHER
... Respondent
For Petitioner :SRI T A RAMADASAN, A K ALEX, K ABOOTY
For Respondent :SRI P V MADHAVAN NAMBIAR, K P SANTHI
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/04/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
S.A.NO.550 OF 1993
Dated, this the 4
th
day of April, 2007
JUDGMENT
Appellant is the plaintiff in O.S.178/1983 on
the file of Munsiff Court, Taliparamba.
Respondents are the defendants. The suit was
filed seeking a decree for permanent prohibitory
injunction. The plaint schedule property is 40
cents in survey No.36 of kuruvathur village. The
case of appellant was that one acre 40 cents in
the resurvey number belonged in jenm to
Kadamberi devaswom and it was obtained by
Kunhikannan Nambiar on leasehold right and while
so as per the oral lease appellant obtained one
acre 40 cents and has been in possession of the
property and while so on the death of Kunhikannan
Nambiar, his rights devolved on his widow and
children and they assigned their right in
favour of the appellant under Ext.B1 assignment
deed dated 27.2.1973 and thereafter as per two
S.A.NO.550/1993 2
assignment deeds appellant sold 50 cents each to
AbOObaCker and Aliyar kunhi and another and the
remaining 40 cents is the plaint schedule
property. It was contended that the jenm right
of 40 cents was obtained from the Land Tribunal
under Ext.A1 purchase certificate and the tenancy
right of appellant over the plaint schedule
property was upheld by the Taluk Land Board under
Ext.A2 order and respondents have no right over
the said property and therefore they are to be
restrained by a permanent prohibitory injunction.
Respondents in their written statement contended
that appellant had right over only one acre
transferred under Ext.B1 assignment deed and the
plaint schedule property is the remaining
property obtained by Kunhikannan Nambiar in the
partition and appellant has no manner or right or
possession over the same and he is not entitled
to the decree for injunction sought for.
2.Learned Munsiff framed the necessary
issues. On the evidence of PWs.1 to 3 and DW1
S.A.NO.550/1993 3
and Exts.A1 to A8 and B1 to B4, upholding the
case of the appellant, trial court granted a
decree restraining respondents by a permanent
prohibitory injunction from trespassing into the
plaint schedule property. Respondents challenged
the decree and judgment before Sub Court,
Payyannur in A.S.85/1989. The first appellate
court on reappreciation of evidence found that
appellant obtained only one acre and not one acre
40 cents and the southern boundary of Ext.B1
proves that the property assigned under Ext.B1 is
only the property to the north of the plaint
schedule property and southern property has been
in the possession of respondents and appellant
did not establish his possession over the
property and he is not entitled to the decree
for injunction granted by the trial court. The
appeal was allowed and the decree granted by the
trial court was set aside and the suit was
dismissed. Second Appeal was filed challenging
the decree passed by the appellate court in
S.A.NO.550/1993 4
reversal of the decree granted by the trial
court.
3. Second Appeal was admitted formulating the
following substantial questions of law.
a) In the facts and circumstances of the
case was the court below right in reversing the
decree of the trial court without a finding how and
where the trial court went wrong in its
appreciation of evidence oral and documentary?
b) Is the first appellate courts finding
that since only one acre is seen assigned as per
Ext.B1, plaintiff is not entitled to anything more
correct?
c) Is the lower appellate court correct
in law in discarding the evidence of possession
such as revenue receipts especially when
defendants relied only on their superior right?
d) In a suit for prohibitory injunction is
it necessary to pray for declaration of possession
and putting up a boundary (if boundary is
demolished)? Can a suit for prohibitory injunction
S.A.NO.550/1993 5
be dismissed for not including such a prayer
stating that injunction is a discretionary remedy?
e) Has not the court below gone wrong in
not considering that plot A is having well defined
boundaries on all four sides which is indicative of
possession of the same by the plaintiff?
4. Learned counsel appearing for the appellant
was heard.
5. Even according to appellant, the plaint
schedule property originally belonged to devaswom
and was obtained on leasehold right by Kunhikannan
Nambiar, the predecessor in interest of respondents
2 to 7. According to appellant, from Kunhikannan
Nambiar appellant obtained one acre 40 cents as per
an oral lease and has been in possession of the
property and while so the rights of legal heirs of
Kunhikannan Nambiar were obtained under Ext.B1
assignment deed in 1973 and respondents have no
manner of right or possession over the plaint
schedule property, which is the remaining property
left with the appellant after alienating one acre
S.A.NO.550/1993 6
by two separate assignment deeds in favour of
Aboobacker and Aliyar kunhi and another. Though
appellant contended that he obtained an oral lease
in 1960, and as per the oral lease, he has been in
possession of one acre 40 cents, as rightly found
by first appellate court apart from the interested
version of the appellant, there is no evidence to
substantiate the oral lease. If in fact there was
an oral lease in favour of the appellant, in Ext.B1
the existence of an oral lease would have been
mentioned. At least it would have been mentioned
that the property which was transferred under
Ext.B1 was outstanding in the possession of the
appellant as per a previous oral lease. As against
this Ext.B1 shows that the property was in the
possession of the assignors thereunder and
possession was transferred to the appellant only
under that document. The hollowness of the case of
appellant is further fortified by the recitals in
Ext.B2 assignment deed executed by the appellant
himself whereunder 50 cents of the property
S.A.NO.550/1993 7
obtained under Ext.B1 was transferred to Alyar
kunhi. There is no whisper in Ext.B2 that he was
in possession of the property as per an oral lease
or by any other arrangement before Ext.B1. Instead
the recital was that he obtained possession of the
property under Ext.B1, which falsifies the case of
oral lease of 1960. Though appellant claim right
under Ext.A1 purchase certificate, that order of
the Land Tribunal was subsequently set aside by the
Appellate Authority, in an appeal filed by the
respondents and the O.A. was remanded back to the
Land Tribunal and the Land Tribunal thereafter
dismissed the same which was challenged before the
Appellate Authority (Land Reforms), Kannur. When
the appeal was dismissed, that order was also
challenged before this Court in C.R.P.3117/00.
That C.R.P. was also heard today and it was
dismissed as per separate order, rejecting the
claim of tenancy raised by the appellant in respect
of the plaint schedule property. Though the trial
court relied on the property tax receipt and the
S.A.NO.550/1993 8
report of the Commissioner, the first appellate
court on appreciating the evidence found that
appellant did not establish his possession of the
property. That factual finding cannot be
interfered in exercise of the powers of this Court
under section 100 of Code of Civil Procedure.
When the appellant contended that he has been in
possession of the property as per an oral lease,
which is found to be false, and it was also found
that appellant obtained possession of only the
property covered under Ext.B1 which was
admittedly alienated by him, case of appellant
that he has been in possession of the plaint
schedule property can only be rejected, as has been
done by the first appellate court. Though reliance
was placed on the southern boundary shown in
Ext.B2, the self serving recital of the appellant
in Ext.B2 cannot be relied on especially when
Ext.B2 shows that the right transferred thereunder
is the right obtained under Ext.B1 and the
property transferred under Ext.B1 is the property
S.A.NO.550/1993 9
which lies to the north of the property retained by
the assignors of the appellant and the property so
retained is the plaint schedule property. There is
no merit in the appeal. It is dismissed.
M.Sasidharan Nambiar
Judge
Tpl/-