IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 897 of 2001(F) ------------------------------ [AS.NO.17/2000 OF PRINCIPAL SUB COURT,KOCHI, OS.NO.116/1995 OF ADDITIONAL MUNSIFF'S COURT,KOCHI] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. ST. PETER'S CHURCH, REPRESENTED BY ITS PRESENT VICAR REV. FR. ANTHONY KOCHUKARAYIL, AGED 45, ST. PETER'S CHURCH, KUMBALANGHI, COCHIN -7. 2. JOSE, S/O. MATHEW, AGED 68, PANACKAL HOUSE, KUMBALANGHI. 3. JOSEPH, S/O. VARKEY, AGED 67, KURUPPASSERY, KUMBALANGHI. 4. LALAN, S/O. ANTHO, AGED 30, ALUMPARAMBIL, KALLANCHERRY. BY ADVS. SRI.K.L.JOSEPH, SMT.P.SAREENA GEORGE. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. JOSEY, S/O. ANTAPPAN, AGED 44, PANACKAL HOUSE, KUMBALANGHI.P.O., KOCHI – 7. 2. ANDHAPPAN, AGED ABOUT 70, RESIDING AT PANACKAL HOUSE, KUMBALANGHI.P.O., KOCHI -7. 3. XAVIER, S/O. ANDHAPPAN, AGED ABOUT 42, PANACKAL HOUSE, KUMBALANGHI.P.O., KOCHI – 7. R1 TO R3 BY ADVS. SRI.T.O.XAVIER, SRI.K.M.SUDHEENDRAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- S.A No.897 of 2001 -------------------------- Dated this the 5th August, 2010 J U D G M E N T Plaintiffs who have been non-suited by the courts below in O.S No.116/1995 are the appellants herein. 2. First plaintiff is the church represented by its Vicar and plaintiffs 2 to 4 are its trustees. First Plaintiff claimed that they were the owners in possession and enjoyment of plaint A schedule property which consists of 80 cents of property comprised in Sy. No.1287 of Kumbalangi village. According to them, 1.940 cents of land was purchased by the 1st defendant as per sale deed No.1004/92 of Mattanchery Sub Registry Office. Initially in that place, a person by named Rocky had put up a structure on the basis of an agreement of lease executed between the plaintiff Church and said Rocky. First defendant later got assignment of the rights of Rocky and continued to be in possession. 1.940 cents of land and the building therein was sold to the first defendant by the church. The church claimed that they are in possession of the balance extent of property which is shown as plaint S.A No.897 of 2001 2 B schedule property and the property of the defendant is shown as plaint A schedule property. It is stated that defendants have no manner of right over plaint B schedule property owned and possessed by the church. Defendants are conducting a tea shop in the building situated in the A schedule. When the church wanted to put up a compound wall, for doing so, when they had to cut down certain trees standing in the property owned and possessed by the church, defendants obstructed the same. Hence the suit. 3. Defendants resisted the suit. They disputed title of the church. According to them, in the year 1945, one Panakkal Rocky had constructed a shed in the plaint A schedule property. On 14.6.1957 that was taken over by the 2nd defendant. Second defendant had conducted a tea shop therein and on 5.4.1991, the 3rd defendant purchased the shop and continued the business. Later, the property where the building is situated was purchased by the 1st defendant and later transferred the same to the 3rd defendant as per document No.1004/1992 of Kochi Sub Registry. Thus third defendant claimed to be the absolute S.A No.897 of 2001 3 owner in possession and enjoyment of 1.940 cents of property and building therein. Defendants contended that that plaintiffs had no absolute possession and enjoyment of plaint B schedule property. 4. The defendants also claimed that in addition to 1.940 cents of land, they are in possession of another 8 cents also by virtue of a lease in their favour. They claimed to be cultivating tenants entitled to benefits under the Kerala Land Reforms Act. Therefore, they contended that plaintiff is not entitled to any relief. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 1 to PW3 and Exts.A1 and A2 were marked from the side of the plaintiffs. Defendants had examined DW1 and DW2 and Exts.B1 to B4 were marked. Exts. C1 to C2 (a) are the commission report and plan. 6. The trial court went to consider title to the property and found that church is unable to produce any documents showing title over plaint A schedule property. The court below also felt that since the plaintiffs have S.A No.897 of 2001 4 failed to prove their title, they cannot given a decree. Based on these findings, the suit was dismissed. 7. Plaintiffs carried the matter in appeal as A.S. No.17/2000 before the Sub Court, Kochi. The lower appellate court was also of the view that since there were no documents to show that the Church owned the property and they were in possession of the same, the plaintiff has to fail. According to the lower appellate court as the Church could not produce the gift deed in respect of the property, they cannot succeed. Therefore, the appeal was dismissed. 8. Challenging the judgment and decree of the courts below, the appeal has been filed before this Court. The following questions of law have been formulated in the appeal. "(a). The defendants were claiming possession of Eight cents of land on the strength of alleged lease from the plaintiff church. This Court in C.R.P. No.24/99 has already held that the claim of tenancy put forward by the defendants was not correct and the C.R.P. filed by the defendants were dismissed. Since the possession was claimed on the strength as a lesse, when this court found that there is no lease, can the trial court come to S.A No.897 of 2001 5 a conclusion that the defendants are in possession of eight cents of property over which the defendants claimed lease hold right. (b) When from the pleadings of parties, title and possession of the B schedule property by the plaintiff church was admitted by the defendants can the courts below find that the title and possession of B schedule property was not proved by the plaintiffs. (c) So far as on this date the defendants have not approached any legal forum in establishing their alleged lease hold right over eight cents of land. In such a case if the injunction sought for is not granted, the possession would be that no body can beneficially enjoy the eight cents of property over which lease hold right is claimed by the defendants. 9. Learned counsel appearing for the appellants pointed out that both the courts below have erred both on facts and in law. The suit was one for injunction. The issue is to be considered only with regard to possession. According to the learned counsel, Church obtained the property as per gift deed which was executed many years ago and therefore, the Church was not in a position to produce the title deed. But drawing attention to the written statement, learned counsel pointed out that the S.A No.897 of 2001 6 possession of the church with respect to plaint B schedule property is admitted by the defendants. Under such circumstances, there was no justification for the courts below to insist for the document of title of the church. 10. Learned counsel pointed out that the claim of tenancy over 8 cents of land is found against the defendants by this Court in C.R.P 24/99 and that was taken note of by the courts below. According to the learned counsel, they are entitled to put up a compound wall separating the property of the Church from the property owned and possessed by the defendants to protect the interests of the church. According to the learned counsel , the court below ought to have decreed the suit. 11. Learned counsel appearing for the the respondents pointed out that apart from the A schedule property they are in possession of 8 cents of land as tenants. Moreover, it was pointed out that plaintiffs were unable to produce the document of title and therefore, the courts below were justified in dismissing the suit. 12. After hearing the counsel on both sides and S.A No.897 of 2001 7 going through the records, it is felt that the findings of the courts below are incorrect and unjustified. As rightly pointed out by the counsel for the appellants, the suit was one for injunction and there was no issue regarding title at all. In the written statement filed by the defendants, it is clearly admitted that the Church is in possession of balance extent of property other than the property claimed by the defendants. Being a suit for injunction, possession alone is relevant . 13. It needs to be noticed that the claim of tenancy in the 8 cents of land was found against the defendants by this Court in C.R.P. 24/99. In the light of the said fact that issue does not survive for consideration. It is made clear that the Church will not interfere with possession and enjoyment of the defendants with respect to 1.940 cents of land. It is not possible to understand the approach made by the courts below in non-suiting the plaintiffs. Apart from the fact that defendants have purchased 1.940 cents of property from the church they have no possession or right over other portions of the property belonging to the S.A No.897 of 2001 8 Church. When a claim of tenancy is set up, it follows that the title of the Church is admitted. The courts below were not justified in non-suiting the plaintiffs on the basis that they had not produced any document of title. 14. The defendants have not been able to show any manner of right over plaint B schedule property. The evidence is clear to the fact that Church is in possession of plaint B schedule property. Defendants have no right to interfere with the possession of the church in relation to plaint B schedule property. 15. The commission report discloses the above fact. The courts below held that there was no cause of action. One fails to understand the approach of the courts below. The very conduct of the defendants and nature of contentions taken are sufficient to prove the hostile attitude to the plaintiffs. 16. For the above reasons, this Court is not in a position to accept the judgment and decree of the courts below. It is felt that the plaintiff are entitled to the reliefs prayed for by them. Accordingly, the judgment and decree S.A No.897 of 2001 9 of the courts below are set aside and the appeal is allowed and decree is passed in the following terms: i. Defendants are restrained by prohibitory injunction from causing any obstruction or hindrance to the peaceful enjoyment of the plaint B schedule property by the plaintiffs. ii. Defendants are restrained by prohibitory injunction from trespassing into plaint B schedule property or putting up any constructions therein. iii. Defendants are restrained by prohibitory injunction, from causing obstruction to the plaintiff in putting up a compound wall by the Church separating the plaint A and B schedule properties. There will be no order as to costs. P.BHAVADASAN, JUDGE ma