IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 905 of 2007()
1. VARGHESE MATHEW @ MATHEW,
... Petitioner
2. MOLLY, W/O.VARGHESE MATHEW @ MATHEW,
Vs
1. RAJAN @ JOSEPH JOSEPH,
... Respondent
For Petitioner :SRI.SHOBY K.FRANCIS
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 905 OF 2007
............................................
DATED THIS THE 1st DAY OF NOVEMBER, 2007
JUDGMENT
Plaintiffs in O.S.453 of 2000 on the file of Munsiff Court,
Chalakkudy are the appellants. Defendant is the respondent.
Appellants instituted the suit seeking a decree for permanent
prohibitory injunction contending that plaint A schedule property
belongs to first appellant as per registered lease deed 2091/65 of
S.R.O, Chalakkudy and has been in possession of the property
and plaint B schedule property has been in his possession and
enjoyment as assigned to him by Aluva Settlement and
respondent has no right or possession over the property and he
attempted to trespass into the property and therefore he is to be
restrained by a permanent prohibitory injunction.
2. Respondent in his written statement contended that first
appellant did not obtain the property under lease deed 2091/65
and he never cultivated the property and first appellant and
respondent are the children of K.M.Varkey, a Pastor in the CSI
Church, Aluva Settlement and he died on 10.5.1954 and his
rights devolved on his wife and children including appellant, first
respondent and sister Mary and they were looked after by the
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grandfather and after the death of Varkey, first appellant and
respondent were allowed to continue their studies in Aluva
Settlement and their mother filed an application before the
Settlement Council knowing that properties are being given in
the Settlement Colony and her husband was a pastor and then
first appellant and respondent were continuing their studies, and
three acres of land in Survey No.482 of Kodassery Village was
given to the family on lease and as the mother was young, the
property was not given in the name of the mother as there is a
likelihood of remarriage of the mother and to keep the property
for the benefit of the family, and appellants are not entitled to
claim exclusive right over the property. It was also contended
that respondent and his mother started residing in the property
in 1970 and first appellant was then residing at Kottayam and
only respondent and the mother were cultivating the property
and in 1976 they constructed a new house, started residing there
and in 1977 respondent got a job in government service and he
dug a well and improved the house. After the marriage of first
appellant, he also resided there for five years and later he
started to reside in a separate house and respondent, his wife,
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mother and sister were in possession of the property. In 1987,
appellants shifted to a new house and at that time it became
necessary to divide the property and accordingly with the
intervention of District Panchayat member and ward member an
oral partition was effected and A schedule property was divided
into two equal shares and was alloted to first appellant and
respondent and when they came to know that Government is
issuing patta to the person in possession of the property in the
Settlement Colony, first appellant and respondent and their
mother decided to file application and accordingly mother
applied for patta for plaint A schedule property and first
appellant applied for patta in B schedule property and
accordingly mother was given possession certificate from the
Land Assignment Special Tahsildar, Thrissur in 1991 and it was
so given in the name of mother and the house in the plaint B
schedule property is in the name of mother and she is paying tax
and when respondent shifted the house to Panamukku, house in
the plaint B schedule property was closed and the key is in
possession of respondent and it is being looked after by Joy and
Chakkappan and appellants are not in possession of property and
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therefore they are not entitled to the decree sought for.
3. Learned Munsiff, on the evidence of PWs 1 to 3, Dws 1
to 4, Exts.A1 to A14, Exts.B1 to B5 and Exts.C1 and C2,
dismissed the suit holding that appellants failed to establish that
they are in possession of plaint schedule property and evidence
establish that respondents have also right over the property.
Appellants challenged the decree and judgment before Sub
Court, Irinjalakuda in A.S.147 of 2003. Learned Sub Judge, on
reappreciation of evidence, confirmed the findings of learned
Munsiff and dismissed the appeal. It is challenged in the second
appeal.
4. Learned counsel appearing for appellants was heard.
The argument of the learned counsel is that on the evidence,
courts below should not have entered a finding on the question
of title, when no issue regarding title was framed and the suit
was only for injunction. Learned counsel argued that in such
circumstances, findings of courts below on the question of title is
to be set aside.
5. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. The suit is
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only for injunction simplicitor. The only issues framed by trial
court are :
1)Whether plaintiff is in exclusive possession of the suit
property.
2)Whether plaintiff is entitled for the injunction.
3)Reliefs and costs.
6. No issue regarding title was framed. Court fee under
Section 27(a) of Kerala Court Fee and Suit Valuation Act was not
paid. Learned Munsiff, on the evidence found that appellants did
not establish their exclusive possession of the plaint schedule
property. Learned Sub Judge, on reappreciation of evidence
confirmed that finding. Exercising the powers of this court under
Section 100 of Code of Civil Procedure, it is not possible to
reappreciate the evidence and substitute the finding of this court
to that of courts below with regard to factum of possession. As
plaintiffs did not establish their possession of the property, they
are not entitled to the decree for injunction sought for. The suit
was rightly dismissed by courts below. To that extent, no
substantial question of law is involved in the appeal.
7. There is force in the argument of learned counsel that in
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the absence of an issue regarding title and being a suit for
injunction simplicitor, courts below should not have decided the
question of title. It is made clear that finding on the question of
title will not debar appellants from claiming title in an
appropriate proceedings.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-