IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 SA.No. 420 of 1995() -------------------- AS.120/1990 of SUB COURT, PAYYANNUR OS.61/1989 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT(S): -------------- MELILAM THEKKEVEETTIL KUNHIKANNAN NAMBIAR, MALAPATTAM AMSOM, CHOOLIYATU DESOM, TALIPARAMBA, KANNUR DISTRICT, REP: BY POWER OF ATTORNEY SUNITHA, D/O. M.T.V.KUNHIKANNAN NAMBIAR, DO-DO- BY ADVS. SRI.K.V.SOHAN, SRI.M.P.ASHOK KUMAR SRI.P.A.BHASKARAN RESPONDENT(S): --------------- 1. MANDEERAKATH ALEEMA UMMA, W/O.KUDUKEERAKATH ABDULLA, HOUSE NO.55A, WARD NO.VI, MALAPATTOM AMSOM, MALAPATTOM PANCHAYAT, TALIPARAMBA 2. KUDUKEERAKATH ABDULLA, HOUSE NO.55A, WARD NO.VI, MALAPATTOM AMSOM, MALAPATTOM PANCHAYAT, TALIPARAMBA, KANNUR DISTRICT R1 & R2 BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.K.S.GOPI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ----------------------------------------------------- S.A.No. 420 of 1995 ----------------------------------------------------- Dated this the 10th day of November, 2009. JUDGMENT The Second Appeal arises from judgment of learned Sub Judge, Payyannur in A.S.120/1990 arising from judgment and decree of learned Munsiff, Taliparamba in O.S.No.61/1989. Appellant sued the respondents for decree for prohibitory injunction against taking usufructs from the suit property claiming that he is the owner in possession thereof as per Ext.A2, assignment deed dated 12.12.1986 executed by respondent No.1. It is also contended by the appellant that pursuant to a rental arrangement, respondent No.1 was permitted to reside in the house in the suit property, he paid the rent @ Rs.30/- per month till 12.5.1988 and on demanding payment of the subsequent rent, respondents threatened him demanding reconveyance of the property for a consideration of Rs.2,000/-. Being apprehensive about the conduct of respondents, appellant filed the suit claiming relief as above stated. Respondents contended that there was no sale in favour of the appellant and instead Ext.A2 was executed as a security for the loan of Rs.2,000/- taken by respondent No.1 from the appellant. Respondents claimed that they are in possession of the suit property and that there was no rental arrangement as regards the house in the suit property. Learned Munsiff found that Ext.A2 was only a security for repayment of the loan, appellant has no possession of the suit property and at any rate, he has come with unclean hands and is not entitled to the discretionary relief of injunction. Accordingly, the suit was dismissed. Appellant took up the matter in appeal. Learned Sub Judge found from the evidence that appellant has possession of the suit property other than the house situated thereon but, agreed with the learned Munsiff that since appellant has not come with clean hands, he is not entitled to the injunction as prayed for. Hence, the Second Appeal. 2. The following substantial question of law is framed for a decision. 1) When the court finds that total possession vested with the appellant, is it proper and legal to deny relief of injunction on a subjective theory of clean hands which lead the parties to take law into their own hands. 3. It is contended by learned counsel for appellant that having regard to the nature of possession appellant has over the suit property, the courts below went wrong in denying relief of injunction. 4. Counsel for respondents would contend that respondents are in possession of the suit property and hence appellant is not entitled to the injunction prayed for. 5. This being a suit for injunction based on possession, it is contended by the learned counsel for appellant that no enquiry into title is required. Ext.A2 is the assignment deed admittedly executed by respondent No.1 in favour of the appellant. It states that the suit property was assigned to the appellant for a consideration of Rs.2,000/- and possession was transferred to the appellant. Ext.A1 is the prior document produced by the appellant. Ext.A3 is the Pattam deed dated 5.3.1984 executed by one K.J.Chacko, in favour of the appellant. Appellant has also produced other documents to support his case of possession. Ext.A10 series are receipts for payment of revenue by the appellant for the suit property. Appellant gave evidence as PW1 and testified to his case. On the other hand, respondent No.2 gave evidence as DW1 and proved Exts.B1 to B4 series. Ext.B1 is the lawyer notice dated 16.12.1988 issued to respondent No.1 on behalf of the appellant. 6. In Ext.B1, there is a demand for repayment of the loan taken by respondent No.1 from the appellant. There is also reference to Ext.A2 being executed as security for the said loan transaction. It is based on Ext.B1 which is admitted by the appellant that trial court found the appellant has no possession of the suit property and that Ext.A2 is executed only as security for due repayment of the loan. In Ext.B1, the amount of loan stated is Rs.20,000/- but in Ext.A2, the assignment deed consideration stated is only Rs.2,000/-. According to PW1, a sum of Rs.18,000/- had already been paid to respondent No.1 and hence, in Ext.A2 the sale consideration was stated as Rs.2,000/-. That explanation was not accepted by the learned Munsiff. However, it is not necessary to decide in this proceeding what exactly is the amount which respondent No.1 had taken by way of loan from the appellant. Question is whether the appellant is entitled to the injunction as prayed for. 7. It is true that the trial court found that appellant has no possession of the suit property. That was on the finding that Ext.A2 is only a security for the loan transaction. First Appellate Court observed that even for the purpose of securing repayment of the loan, there could be a document like Ext.A2 transferring possession of the property to the appellant. In that view and on the evidence on record that finding regarding possession of the said property was entered in favour of appellant. 8. It is true that respondents have produced Exts.B3 series and B4 series for payment of revenue for the suit property and tax for the building. Of them, Ext.B3(a) and B4(a) are for the year 1987 but, it is seen Ext.A10(c) that revenue has been paid by the appellant also. Ext.A4 is the petition preferred by the appellant before Tahsildar concerned requesting to receive land revenue from him. Based on the evidence on record, First Appellate Court found that appellant has possession of the suit property except the house in question. That is a finding on fact entered by First Appellate Court on the evidence on record. So far as that finding is not shown to be perverse or, not supported by evidence interference in Second Appeal is not warranted. 9. Then the question is whether appellant is entitled to the relief of injunction. The courts below found that on the facts of the case he is not entitled to the discretionary relief. Appellant came with the case that he is the absolute owner in possession of the property which the courts below have not upheld in the light of Ext.B1. In other words, it is suppressing the loan transaction and Ext.B1 that appellant claiming to be the absolute owner of the suit property sought relief of injunction which being an equitable relief was within the power of the courts below to refuse since appellant had not come with equity while seeking equity. 10. Having heard counsel on both sides and going through the evidence on record, I do not find reason to interfere with the discretion exercised by the courts below against grant of injunction in favour of the appellant. The substantial question of law framed is answered accordingly. Second Appeal fails. It is dismissed without any order as to costs. Thomas P.Joseph, Judge cms