IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RSA.No. 300 of 2004() --------------------- AS.92/1999 of I ADDL. DISTRICT COURT, PALAKKAD OS.442/1994 of I ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS 2,4 & LRS. OF D1: ---------------------------------------------------------------------- 1. ARUMUGAN, S/O. RAMAN, RESIDING AT THOTTICHIPATHY, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. 2. MARIYAPPAN, S/O. NAGAMMAL, RESIDING AT KANNIMARI, PERUMATTY, CHITTUR TALUK, PALAKKAD DISTRICT. 3. KUNJATHAL, WIDOW OF PAZHANY, RESIDING AT THOTTICHIPATHY, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. 4. SELVATHAL, D/O. PAZHANY, RESIDING AT THOTTICHIPATHY, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): RESPONDENT/PLAINTIFF/RESPONDENT/3RD DEFENDANT: ------------------------------------------------------------- 1. MAHALINGAM, S/O.KUMARASWAMY KOUNDAN, RESIDING AT VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. MANIKANDAN, S/O.CHINNARAMASWAMY KOUNDAN, RESIDING AT THOTTICHIPATHY, PATTANCHERRY, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.V.V.ASOKAN FOR R2 SMT.S.AMINA FOR R2 SRI.P.R.VENKETESH FOR R1 SRI.P.R.RAJA FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.300 of 2004 ............................................ DATED THIS THE 29th DAY OF AUGUST, 2011 JUDGMENT Defendants 1, 2 and 4 in O.S.442 of 1994 on the file of Sub Court, Palakkad are the appellants. First respondent is the plaintiff and second respondent, the 3rd defendant in the suit. Suit was filed for permanent prohibitory injunction restraining the appellants and second respondent from trespassing into the plaint schedule properties. Plaint schedule properties are having a total extent of 2.27 acres viz, 13 cents in survey No.2349/2, 33 cents in survey No.2349/14, 13 cents in survey No.2349/11, 46 cents in survey No.2334/2, 17 cents in survey No.2348/2 and 11 cents in survey No.2335/1. The plaint schedule properties admittedly belonged to Palat family. First respondent contended that plaint schedule properties were outstanding in the possession of Narayana Swamy Kounder on lease hold right and later he purchased the jenmom right from the Land Tribunal as per Ext.A3 order in O.A.14/1982 and Ext.A2 purchase certificate was also issued and first respondent purchased the rights from RSA 300/2004 2 Narayana Swamy Kounder under Ext.A1 sale deed and since then he has been in possession and enjoyment of the properties. Appellants are claiming right over the plaint schedule properties contending that the plaint schedule properties are parts of the property covered under the decree in O.S.9 of 1974, but the plaint schedule properties are actually not part of the said properties and therefore they are to be restrained from trespassing into the property. 2. Appellants resisted the suit contending that first respondent or his predecessors have no right over the properties in survey No.2335/2 and 2334/3 and the first appellant and his brothers instituted O.S.9 of 1974 for partition of the properties originally belonging to their father Raman and a Receiver was appointed in that suit by Ext.B2 order in CMA 106 of 1977 and second respondent is the Receiver appointed. The plaint schedule properties were part of the properties in the possession of the Receiver. A preliminary decree was passed directing partition of the properties. The final decree proceedings is pending. The Commissioner appointed effected partition and 44 cents in survey No.2334/2 and 46 cents in survey No.2334/3 were divided by the RSA 300/2004 3 Commissioner in the final decree. As first respondent has no right or possession over the said property, he is not entitled to the decree sought for. 3. Learned Sub Judge, on the evidence of Pws 1 and 2, Dws 1 to 3, Exts.A1 to A8, B1 and B2 found that under Ext.A2 purchase certificate issued pursuant to Ext.A3 order of the Land Tribunal in O.A.14/1986, Narayana Swamy Kounder purchased jenmom right in respect of the plaint schedule properties and later under Ext.A1 assignment deed, he assigned his rights in favour of the respondent and respondent has been in possession of the property by paying tax evidenced by Ext.A5 series of tax receipts and there is no evidence to prove that plaint schedule properties were taken possession by the Receiver appointed in O.S.9 of 1974. Learned Sub Judge also found that though a party Receiver was appointed by Ext.B2 order in CMA 106 of 1997 in O.S.9 of 1974, there is no evidence to prove that the plaint schedule properties were taken delivery by the Receiver and Ext.B2 only shows that second respondent was appointed the party Receiver. Appellants did not establish that any portion of the plaint schedule properties were taken possession by the RSA 300/2004 4 Receiver. Learned Sub Judge also found that in O.S.9 of 1974 also the appellants set up a right, which was originally available with Raman and that right was the lease hold right obtained from Palat family and the Palat family had filed O.S.578 of 2002 against Raman for arrears of rent and Ext.A8, copy of the plaint in that suit establishes that the Raman was a tenant of 88 cents of paddy field and 6.37 acres of paramba and the evidence of DW2, the Commissioner who submitted Ext.B1 plan and Ext.B1 (a) final report establishes that he did not identify the properties with reference to the preliminary decree and having found that more extent than what is provided in the preliminary decree is available, those properties were divided and based on Ext.B1 to B3, appellants cannot claim right or possession over any portion of the plaint schedule properties. Hence a decree for injunction restraining the appellants and second respondent from trespassing into the property was granted. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.92 of 1999. Learned Additional District Judge on re- appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second RSA 300/2004 5 appeal. 4. Appeal was admitted formulating the following substantial question of law. “Whether the courts below were justified in granting a decree for injunction in the light of the evidence on record”. 5. Learned counsel appearing for the appellants and respondents 1 and 2 were heard. The suit being one for permanent prohibitory injunction, the only question to be settled is regarding the possession of the plaint schedule properties. First respondent claimed right and possession of the plaint schedule property on the strength of Ext.A1 sale deed executed by Narayana Swamy Kounder. The right transferred under Ext.A1 is the right available with Narayana Swamy Kounder under Ext.A3 order of the Land Tribunal and Ext.A2 purchase certificate issued pursuant to Ext.A3 order in O.A.14 of 1982. Exts.A2 and A3 establish that Narayana Swamy Kounder claimed that he was a tenant under the Palat family and filed O.A.14 of 1982 for assignment of jenmom right in respect of the lease hold properties and the Land Tribunal allowed the O.A and assigned RSA 300/2004 6 jenmom right in favour of Narayana Swamy Kounder. It is that right which was transferred under Ext.A1. Learned Sub Judge and learned District Judge on appreciation of evidence found that Ext.A2, A3 and A4 series of revenue receipts establish that Narayana Swamy Kounder was the tenant of the plaint schedule properties under Palat family and later he purchased the jenmom right from the Land Tribunal and first respondent under Ext.A1 obtained that right. Courts below, on appreciation of the evidence entered a factual finding that first respondent has proved his possession of the plaint schedule property. Appellants are claiming right and possession to a portion of the plaint schedule properties contending that it forms part of the property obtained on lease by Raman from Palat family and on the death of Raman, appellants being the legal heirs filed O.S.9 of 1974 for partition of the properties and under Ext.B2 order of this court in CMA 106 of 1977, second respondent was appointed the party Receiver and he is in possession of that portion of the properties. The claim raised in the original written statement was only in respect of the properties in Survey No.2334/2 and survey No.2334/3. Later, by an additional written statement, possession RSA 300/2004 7 was claimed over survey No.2334/15 also. Though it was contended that the plaint schedule properties form part of the properties covered under the preliminary decree in O.S.9 of 1974, the preliminary decree was not produced. Ext.B1, the plan prepared by DW2, the Commissioner appointed in the final decree proceedings and Ext.B2 report submitted by him were relied on. Courts below, on appreciation of the evidence of DW2 found that DW2 had not identified the properties to be divided, pursuant to the preliminary decree passed based on the description of the schedule properties in the preliminary decree. The evidence of DW2 shows that when he inspected the properties it was represented that some more extent, though not covered by the preliminary decree, is available and therefore he divided those properties also. Therefore, based on Ext.B1 and B2, appellants cannot claim that plaint schedule properties form part of the property covered in the decree in O.S.9 of 1974. Moreover, courts below found that Palat family, the Landlord, had instituted O.S.520 of 1962 claiming arrears of rent from Raman and Ext.A8 copy of the plaint establishes that Raman was in possession of only 6.37 acres of paramba and 88 cents of dry RSA 300/2004 8 land and therefore when O.S. 9 of 1974 was filed for partition of the lease hold properties, only that much extent could have been divided and therefore appellants cannot claim right based on Ext.B1 and B2. On the evidence, findings of the courts below is perfectly correct. When the evidence establish that first respondent has been in possession of the plaint schedule properties and appellants are claiming right over a portion of the plaint schedule properties, a decree for permanent prohibitory injunction was rightly granted by the courts below. I find no reason to interfere with the factual finding rendered by the courts below based on the evidence on record. Hence appeal could only be dismissed. Appeal is dismissed. It is made clear that only the question of possession is settled in this suit. M.SASIDHARAN NAMBIAR, JUDGE lgk