High Court Kerala High Court

Yelath Lakshmi Amma vs Kookal Raghavan Nair on 25 January, 2011

Kerala High Court
Yelath Lakshmi Amma vs Kookal Raghavan Nair on 25 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 466 of 1999(E)



1. YELATH LAKSHMI AMMA
                      ...  Petitioner

                        Vs

1. KOOKAL RAGHAVAN NAIR
                       ...       Respondent

                For Petitioner  :SRI.D.KRISHNA PRASAD

                For Respondent  :SRI.KODOTH SREEDHARAN

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :25/01/2011

 O R D E R
                        P. BHAVADASAN, J.
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                       S.A. No. 466 of 1999
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           Dated this the 25th day of January, 2011.

                               JUDGMENT

The defeated defendants are the appellants.

The parties and facts are hereinafter referred to as they

are available before the trial court.

2. The suit was in respect of two items of

properties. Item No.1 consists of 40 cents and item No.2

consists of 25 cents. The plaintiff claims to have

obtained the properties as per Exts.A1 and A2

respectively. The predecessor in interest of the

defendants was allotted the plaint schedule property as

per partition deed, which is on the north of item No.1.

Alleging that the defendants were trying to trespass into

the property, the suit was laid.

3. The defendants resisted the suit. They

challenged the validity of Ext.A1 partition deed, on the

basis of which the plaintiff laid claim to item No.1.

S.A.466/1999. 2

According to them, 10 acres of land comprised in Sy.

No.84/1D was outstanding on lease with Kunhikannan Nair,

the predecessor in interest of the defendants, and he had

obtained Ext.B1 purchase certificate. That property was

fraudulently included in the partition deed evidenced by

Ext.A1 deed and the plaintiff was not derived any right over

the suit property. They therefore prayed for a dismissal of

the suit.

4. It appears that there was a subsequent

amendment to the plaint. The defendants also filed

additional written statement. Based on the above pleadings,

necessary issues were raised by the trial court. The

evidence consists of the testimony of P.W.1 and documents

marked as Exts.A1 to A8 from the side of the plaintiff. The

defendants examined D.W.1 and had Exts.B1 to B6 marked.

Exts.C1 and C2 are the commission report and plan. The

trial court, mainly based on the commission report Ext.C1

and Ext.C2 plan came to the conclusion that the plaintiff was

unsuccessful in establishing possession over the suit

S.A.466/1999. 3

property and accordingly dismissed the suit. The plaintiff

carried the matter in appeal as A.S.55 of 1996. The lower

appellate court found that the trial court was not justified in

coming to the conclusion that the plaintiff had no possession

over the suit property and accordingly reversed the finding

of the trial court and decreed the suit.

5. Notice is seen issued on the following questions

of law:

“1. In a suit for injunction simplicitor, is not

possession of the property alone material and

unless the plaintiff establishes possession as on

the date of suit, should not the suit entail a

dismissal, even assuming that the plaintiff has

been able to trace title to the property?

2. When a decision rendered by a Court was

taken up in appeal and when a compromise

decree was passed in such appeal, will it not have

the effect of effacing the decision of the trial court

and does not the principle of merger apply in such

circumstances.

3. When a decision rendered by a Court is

taken up in appeal and when the said appeal

S.A.466/1999. 4

culminates in a compromise decision, and when

the decision of the former court thus merges with

that of the latter court, can the decision of the

former court be relied on for any purpose?

4. When a family arrangement or partition is

under serious attack on various grounds including

fraud, whether the existence of such family

arrangement/partition by itself would be sufficient

to uphold title and possession of the properties

thereunder.

5. Is not the impugned decision vitiated by

reason of misreading of the pleadings and the

evidence?

             6.     Whether   under     the   facts  and

      circumstances,     the    impugned     decree    is

      sustainable?"




6. Learned counsel appearing for the appellants

contended that the lower appellate court was not justified in

reversing the judgment and decree of the trial court. The

trial court had come to the conclusion that the plaintiff has

miserably failed to establish his possession over the suit

property. Being a suit for injunction, the only issue that

S.A.466/1999. 5

arose for consideration was whether the plaintiff is in actual

physical possession over the suit property as on the date of

suit. Even assuming that they had title to the suit property

as per Exts.A1 and A2, that will not be sufficient. Learned

counsel for the appellants drew the attention of this court to

Ext. C1 commission report which shows that there is no clear

boundary separating the property of the plaintiff from

adjacent properties. The commission report also shows that

the properties are lying contiguously. It is therefore

contended that the lower appellate court judgment and

decree are unsustainable in law.

7. Learned counsel for the respondents contended

that there may not be any confusion regarding the property

obtained by each of the sharers as per Ext.A1 since a plan is

appended to Ext.A1. Nobody has a case that the said plan is

either wrong and the sharers, who had allotted with shares

had not taken possession of the respective properties. The

predecessor in interest of the defendants being a party to

Ext.A1, it comes with little grace from the defendants

S.A.466/1999. 6

now to say that the partition deed is not binding on them

and it has no effect. In fact they conveyed a portion of the

property allotted to them under the partition deed. The plea

of fraud cannot be sustained because there was an earlier

suit between the predecessor in interest of the plaintiff and

defendants, in which the partition deed was put forward.

That was a suit of the year 1974. If as a matter of fact the

predecessor in interest of the defendant had any case that

the partition deed is a fraudulent one, he could have taken

steps to set it aside. Since that has not been done, there is

no merit in the contention that Ext.A1 is not binding.

Learned counsel also pointed out that the lower appellate

court has considered the issue in the proper perspective and

no grounds are made out to interfere with the finding of the

lower appellate court.

8. Ext.A1 partition deed is the document of title of

both the parties. The defendants have a contention that

their predecessor in interest, who was illiterate, was

defrauded by including the properties in his possession in

S.A.466/1999. 7

the partition deed Ext.A1. They have a contention that the

partition deed is not binding on them.

9. This contention, to say the least, is totally

unacceptable. The predecessor in interest of the defendants

namely Kunhikannan Nair was a party to Ext.A1 document of

the year 1967. In 1974 there was a suit between the

predecessor of the plaintiff and the predecessor in interest

of the defendants. That was based on Ext.A1 partition deed.

Therefore Kunhikannan Nair was fully aware of the fact that

the properties covered by Ext.B1 were subject matter of the

partition as per Ext.A1. Nothing was done by him in that

regard. Further, the defendants are not enjoying the

properties obtained by Kunhikannan Nair as per Ext.A1

partition.

10. There can be no difficulty in identifying the

property allotted to each of the parties as per Ext.A1 since a

plan is appended to the deed showing the shares allotted to

each of the sharers. The trial court heavily relied on the

commission report and plan to hold against the plaintiffs.

S.A.466/1999. 8

The lower appellate court has considered this aspect in

considerable detail and had come to the conclusion that the

reliance placed on Exts.C1 and C2 is not justified. Of course,

it is true that the plaintiff was not able to give complete

details about the property, but the fact remains that he sued

in respect of the properties obtained by him in the partition

evidenced by Ext.A1 and an assignment deed from one of

the sharers under the same deed. There is no case for the

defendants that the properties in respect of which the suit is

laid is not the property covered by Ext.A1.

11. It is also interesting to note that the plaintiff

had filed objection to the commission report and had prayed

that it may be remitted to the commissioner. The specific

allegation is that commission report and plan are incorrect

and contrary to the plan appended to Ext.A1. That does not

appear to have been considered at all and the trial court

relied on that report and plan.

12. As rightly noticed by the lower appellate

court, there is no question of any crisis in the identity of the

S.A.466/1999. 9

properties since as already noted, a plan is appended to the

partition deed. There is no case for the defendants that the

plan is either erroneous or the allocation is not as per the

deed. The lower appellate court, in the facts and

circumstances of the case, was therefore fully justified in

accepting the principle that possession follows title in the

peculiar facts and circumstances of the case.

There is no justification to interfere with the

finding of the lower appellate court, which is based on an

appreciation of the evidence on record. The finding is

essentially one of fact. No question of law, much less any

substantial question of law, arises for consideration in this

Second Appeal. This Second appeal is without merits.

Accordingly, it is dismissed. There will be no order as to

costs.

P. BHAVADASAN,
JUDGE

sb.