IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 221 of 1993()
1. T.P.KRISHNAN
... Petitioner
Vs
1. K.G.RAJAN
... Respondent
For Petitioner :SRI.T.C.MOHANDAS
For Respondent :SRI.V.CHITAMBARESH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/03/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 221 OF 1993
............................................
DATED THIS THE 16th DAY OF MARCH, 2007
JUDGMENT
Defendants in O.S.484 of 1984 on the file of Munsiff
Court, Palakkad are the appellants. Plaintiff therein is the
respondent. Respondent instituted the suit seeking a decree
for permanent prohibitory injunction in respect of the plaint
schedule property. Plaint schedule property is ten cents in re-
survey No.1377/1 one cent in resurvey No.1378/1 and 0.05
cents in R.S.1375/1 of Puthoor Village of Palakkad Taluk. Case
of respondent was that he obtained the property under Ext.A1
sale deed dated 3.1.64 from Narayani Ammal and her husband
Krishan Iyer who in turn obtained the right under Ext.A2 sale
deed dated 4.9.1942 from G.P.Krishna Iyer, who in turn
obtained the property in court auction sale in execution of the
decree in O.S.130/35. It was contended that the disputed
property is the backyard portion of the house in the property
originally belonged to Narayana Swamy Iyer who in turn
assigned it to Marathakambal under Ext.A3 assignment deed
dated 11.7.1912 which in turn was mortgaged in favour of
Krishna Iyer who obtained the decree in O.S.130/1935 and
purchased the property in court auction sale and thereafter
SA 221/1993 2
sold it to Narayani Ammal and Krisha Iyer under Ext.A2 in
1942. Respondent contended that he has been in possession
and enjoyment of the property and appellants have no manner
of right, title or possession of the property and therefore they
are to be restrained by a permanent prohibitory injunction
from trespassing into the plaint schedule property. Appellants
in their written statement disputed the right, title and
possession of the respondent and contended that the disputed
property originally belonged to their family and subsequently
under Ext.B1 partition deed dated 29.6.1984, it was divided
between appellants and the disputed property was alloted to
the share of the first appellant and therefore respondent is not
entitled to the decree sought for.
2. The learned Munsiff framed necessary issues. As in
the written statement appellants disputed the title of the
respondent, respondent filed I.A.1150/95 to amend the plaint
by paying court fee under Section 27(a) of Kerala Court Fees
and Suit Valuation Act contending that as the title of the
respondent was disputed by appellants, it is necessary to
decide the question of title also. The application was allowed
and court fee was paid under Section 27(a). Learned Munsiff
therefore considered the question of title also. On the side of
SA 221/1993 3
respondent, apart from himself two witnesses were examined
and fifty two documents were marked apart from Exts.C1 and
C2 reports and C3 plan. On the side of appellants, apart from
the evidence of first appellant, two other witnesses were
examined and two exhibits were marked. Learned Munsiff, on
the evidence, found that the disputed property is part of the
property obtained by respondent under Ext.A1, which in turn
was part of the property assigned by Krishna Iyer under Ext.A2
and obtained by him in court auction sale from Marathakambal
who derived the right under Ext.A3. Learned Munsiff also
found that Ext.B1 partition deed which was entered into by
appellants prior to the institution of the suit does not disclose
the derivation of title. Though at the time of evidence DW1
deposed that he has got documents to prove that title, it was
not produced. It was found that therefore adverse inference
has to be taken. On the evidence, learned Munsiff found that
respondent has title and possession to the disputed property
and granted a decree in favour of respondent. Appellants
challenged the decree and judgment before Sub Court,
Palakkad in A.S.24/91. Learned Sub Judge reappreciated the
evidence and confirmed the decree and judgment and
dismissed the appeal. It is challenged in this second appeal.
SA 221/1993 4
3. The second appeal was admitted after formulating the
following substantial questions of law.
i)Are the courts below correct in entering a finding on title
when suit is only for perpectual injunction against defendants
from obstructing plaintiff from putting up a fence on the
southern side of the plaint schedule property.
ii)Are the courts below correct in entering a finding on the
questions of title and possession, when there is difference in
the extent in Ext.A1, A2 and A3.
Iii)Are the courts below correct in granting a decree basing on
the tax receipts when the sale certificate was not produced.
4. Learned counsel appearing for appellants and the
respondent were heard.
5. Though substantial questions of law were framed and
it was argued that in a suit for injunction question of title is
not to be decided, it is seen from the records that when
appellants in their written statement denied the title of the
respondent alleged in the plaint, plaint was got amended after
paying court fee as provided under Section 27(a) of Kerala
Court Fees and Suit Valuation Act and that too on the
allegation that as title of respondent was denied, question of
title has to be decided in the suit. On that ground court fee was
SA 221/1993 5
paid under Section 27(a) of Kerala Court Fees and Suit
Valuation Act. In view of the said facts and payment of court
fee under Section 27(a), court is bound to consider question of
title also, even though the suit is only for injunction. Therefore
the decision of courts below on the question of title cannot be
said to be illegal or unwarranted. On the other hand, in the
nature and circumstances of the case, a decision on the
question of title was mandatory. Therefore on that ground the
decisions of courts below cannot be challenged.
6. Respondent was setting up title and possession under
Ext.A1 sale deed dated 3.1.1964. The right obtained under
Ext.A1 was the right which was obtained by Narayani Ammal
and her husband Krishna Iyer under Ext.A2 sale deed dated
4.9.1942. The right so assigned by Narayani Ammal was the
right derived under Ext.A2 from G.P.Krishna Iyer. Ext.A2
shows that the right assigned by Krishna Iyer was the right
obtained in court auction sale in execution of the decree in
O.S.130/1935. The right purchased by Krishna Iyer in court
auction sale was the right obtained by Marathakambal under
Ext.A3 dated 11.7.1912 whereunder Narayani Ammal
transferred her right in respect of an extent of 16 X 4 = six feet
koles within the boundaries shown therein to Marathakambal.
SA 221/1993 6
The eastern boundary shown in Ext.A3 is the property in the
possession of Marathakambal which in turn was purchased by
Krishna Iyer in court auction sale. Even though the sale
certificate was not produced, from Ext.A2 and A3 it is
absolutely clear that G.P.Krishna Iyer had the right, which in
turn was assigned by him to Narayani Ammal and Krishna Iyer,
which ultimately vested with respondent under Ext.A1. Though
learned counsel appearing for appellants vehemently argued
that because of the difference in the extent of the property
covered under Exts.A1 to A3 and absence of survey number in
Ext.A3, courts below should not have upheld the title set up by
the respondent, a comparison of Exts.A1 to A3 would establish
that when Ext.A3 relates to 16 X 4 = six feet koles, under
Ext.A2 along with the said property, Krishna Iyer had
transferred his rights over the properties having the
measurements of 24 X 5, six feet koles. Though re-survey
number of the property covered under Ext.A3 was not
mentioned, in Ext.A2 survey number and extent were shown as
ten cents in R.S.No.1377 one cent in R.S.No.1378 and o.05
cents in R.S.1375. The property transferred under Ext.A1 is the
very same property. The plaint schedule property is also the
very same property. Courts below, on appreciation of evidence,
SA 221/1993 7
found that respondent has title to the property. Reliance was
placed on Exts.A1 to A3. I find no reason to differ with that
finding. In any event, that is not a substantial question of law.
7. In the plaint itself though respondent has contended
that there is an old latrine building in the plaint schedule
property, appellants in the written statement denied the
existence of the latrine building. When the Commissioner
inspected the property and submitted Exts.C1 and C2 reports,
it was established that, the Commissioner could note remnance
of the old latrine. The way from the residential house was also
noted by the Commissioner. When this fact was brought out at
the time of evidence, DW1 tried to explain it stating that it was
the latrine available in their property. Courts below, on
appreciation of evidence, found that that case cannot be
believed as it is a result of an after thought and that supports
the case of the respondent that the plaint schedule property
forms part of their property and has been in their possession.
Courts below appreciated the evidence in the proper
perspective and found that respondent has been in possession
of the plaint schedule property. The said finding of fact
entered into, on the basis of evidence, cannot be interfered in
exercise of the powers of this court under Section 100 of Code
SA 221/1993 8
of Civil Procedure especially when it is in accordance with the
evidence tendered. There is no merit in this appeal.
Second appeal is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-