IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 SA.No. 588 of 1997() -------------------- AS.1/1996 of SUB COURT, KASARAGOD OS.216/1991 of MUNSIFF COURT, KASARAGOD .................... APPELLANT IN S.A:- APPELLANT IN THE LOWER APPELLATE COURT- DEFENDANT IN SUIT: ---------------------------------------------------------- B A MOHAMMED, S/o. ABBAS MUKRI BAIVAMTHADKA HOUSE BELE VILLAGE and POST, KASARAGOD TALUK REPRESENTED BY POWER-HOLDER SHRI. HASSINAR B., S/o. ABBAS MUKRI, BERMANADKA HOUSE BELA P O, KUMBLA (VIA), KASARAGOD TALUK and KASARAGOD DISTRICT BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SMT. M M TEENA SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT IN S.S-RESPONDENT IN THE LOWER APPELLATE COURT- PLAINTIFF IN SUIT: ---------------------------------------------------------------- D.C. NARAYANA, S/o. ANDU RESIDING AT DARBETHADKA, HARIJAN COLONY BELA VILLAGE, BELA POST KASARAGOD TALUK KASARAGOD DISTRICT ADV. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ------------------------------ S.A.No.588 of 1997 C --------------------------------------- Dated this 13th day of October, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Kasaragod in A.S.No.1 of 1996 confirming decree for prohibitory injunction granted by learned Munsiff, Kasaragod against the appellant in O.S.No.216 of 1991 of that Court. The suit property described in the plaint schedule is 84 cents in R.S.No.32/part of Bela Village (described in the patta as falling in 32/2). According to the respondent/plaintiff, the said land was in the occupation of Chowkaru, son of Koruga who applied for assignment as per L.A.No.10/71/Bela on 30-05-1972. The said land was assigned to Chowkaru, he was in possession and enjoyment constructing a shed therein and laterate compound wall on the boundaries which he could not complete on account of poverty. Though assignment of registry in favour of Chowkaru was on 30-05-1972, officials delayed issue of patta till 20- 10-1986. In the meantime there was an agreement between Chowkaru and the respondent on 07-08-1984 for sale of the property in favour of the latter. Respondent filed O.S.No.306 of 1988 for specific performance of the agreement for sale and in terms of the compromise entered into in that case, Chowkaru assigned the property in favour of respondent as per sale deed dated 03-05-1989. Respondent has a case that as per the agreement for sale he was put S.A.No.588 of 1997 2 in possession of the property. He claimed that after the execution of the assignment deed he constructed compound wall on all sides of the suit property and effected improvements. While so, he received notice dated 31-07-1989 from the Special Tahasildar (Land Assignment) intimating that 25 cents has been assigned to the appellant as per proceedings dated 06-12-1982 in L.A.No.42/1982/Bela. Respondent objected to the same. The Tahasildar directed him to surrender the order of assignment and patta issued to him to effect necessary changes. The order was challenged in appeal and in revision but, without success. Suit property is in the possession and enjoyment of respondent. He has not surrendered any portion of the property to the Government nor was he dispossessed. He contended that as per the Land Conservancy Act Government has no right to take possession of the suit property even if a portion of that property is sought to be assigned to anybody else. Alleging attempt on the part of appellant to trespass into the property, respondent laid the suit as first above stated. Appellant denied that Chowkaru was occupying the land after assignment of registry in his name. He claimed that property assigned to Chowkaru on 30-05-1972 was not taken possession by him. Later, the order of assignment in favour of Chowkaru was revised assigning only a portion of the suit property to him and 25 cents out of the total extent was assigned to the appellant. Agreement for sale and sale deed in favour of respondent are all manipulated for the purpose of S.A.No.588 of 1997 3 creating evidence of possession. He claimed that he is in possession of 25 cents carved out from R.S.No.31/2 (which formed part of the suit property). Trial court found in favour of possession claimed by the respondent in respect of the suit property and granted decree. First appellate court confirming the finding and judgment and decree observed that Ext.B4, proceeding issued by the Special Tahasildar (Land Assignment) is invalid and intended to help the appellant. Judgment and decree of first appellate court are under challenge in the second appeal. 2. The following substantial questions of law are framed for a decision, (a) Is the respondent-plaintiff-entitled to maintain an action for injunction against the appellant-defendant- when it is shown that the appellant is the true owner and that the respondent has lost his title by the proceedings of the land assignment authorities? (b) Does not the finding in Ext.B4 proceedings as affirmed in appeal and revision conclude the question of possession, particularly when the said proceeding has become final? (c) Has the respondent-plaintiff proved his possession of the extent of 25 cents claimed by the appellant-defendant on the date of suit entitling him to injunction as prayed for? (d) Has the respondent tendered any evidence to displace the evidenciary value of Ext.B4 proceeding, S.A.No.588 of 1997 4 including the findings on possession therein and the invalidity of the order of assignment for violation of the conditions of registry, and is the lower appellate court justified in ignoring the same and granting a decree of injunction basing on the ipse dixit of the respondent? (e) Are not the observations of the lower appellate court on Ext.B4 proceedings unwarranted and unjustified? 3. It is contended by learned senior Advocate for appellant that in the light of Ext.B4 which has been confirmed by the Government in revision and thus became final, it is idle for respondent to contend that he has got possession and title of the entire suit property. Learned Senior Advocate contends that under Rule 8 (ii and iii) of the Kerala Land Assignment Rules, it is a condition that assignee of the land should take possession of the property assigned within one year of the issue of patta which has not happened in this case and hence it was well within the power of the Government to cancel the assignment in favour of Chowkaru. Learned Senior Advocate contends and it is not disputed also, that respondent had surrendered the original order of assignment to the Special Tahasildar and based on that the revised order has been passed assigning 25 cents to the appellant. According to the learned Senior Advocate, Ext.B4 is sufficient to show that possession of the entire property was with the Government even after assignment and issue of patta in favour of Chowkaru. Regularity of the official business of Government and S.A.No.588 of 1997 5 officials have to be presumed under section 114(g) of the Indian Evidence Act. There is no evidence to show that respondent was in possession of the suit property as on the date of suit and hence courts below were not justified in granting relief against the appellant. Further contention is that at any rate appellant being the owner of 25 cents out of the suit property, courts below were not legally correct in granting injunction against him. Learned senior Advocate has placed reliance on the decisions in Premji Ratansey Shah and Others Vs. Union of India and Others (1994 (5)SCC 547), Mahadeo Savlaram Shelke and Others Vs. Pune Municipal Corporation and Another (1995 (3) SCC 33) and Tamil Nadu Housing Board Vs. A. Viswam (1996 (8) SCC 259). In response, it is argued by learned counsel for respondent that there is sufficient evidence on record to show that respondent has been in possession and enjoyment of suit property before and after institution of suit which has been reported by Advocate Commissioner also. It is also argued by learned counsel that relief of injunction sought by respondent is not against the Government but against the appellant who according to respondent is attempting to trespass into the suit property. It is further argued by learned counsel that evidence on record would not show that appellant has title over any portion of the suit property. Learned counsel invited my attention to Ext.C2, plan prepared by the Advocate Commissioner. Learned counsel contends that courts below have on evidence found possession S.A.No.588 of 1997 6 with the respondent which is a finding of fact based on the evidence and so far as it is not shown that the finding is perverse, no interference in the second appeal is called for. 4. I have gone through the plaint and find that the suit is merely for injunction on the premise that the respondent is in possession of the suit property. Payment of court fee is also only under section 27(c) of the Courts Fees Act. In a suit for injunction what the Court is concerned with is whether on the date of suit plaintiff is in possession of the suit property. Ext.A2 is the purchase certificate dated 20-10-1986 issued to the predecessor in interest of respondent in proceedings No.L.A.10/7/Bela in respect of 84 cents in R.S.No.32/2. Though, respondent has a contention that as per the agreement for sale dated 07-08-1984 between himself and Chowkaru he has been put in possession of the suit property, that agreement is not produced. There is Ext.A1, assignment deed dated 03-05-1989 executed by Chowkaru in favour of respondent. It is not disputed that Ext.A1 is in respect of 84 cents in respect of R.S.No. 32/2. Respondent has given evidence as PW1. He claimed that as per the agreement for sale he got possession of the suit property and continued such possession as per Ext.A1, assignment deed. He also claimed that he constructed compound wall on all sides of the suit property. On the other hand, appellant has given evidence as DW1 and produced Exts.B1 to B4. Ext.B1 is the format of order dated 28-07-1982 issued by Registrar in S.A.No.588 of 1997 7 favour of appellant in L.A.No.42/82/Bela in respect of 25 cents in survey No.32/5. Ext.B4 is the proceeding dated 30-12-1989 of Special Tahasildar (Land Assignment), Kumbala. The paper read in Ext.B4 includes petition dated 01-06-1987 preferred by appellant and show cause notice dated 31-07-1989 issued to the parties hereto. That order went against respondent who challenged the same in appeal and lost. The appellate order was challenged before the Board of Revenue. Ext.B2 is the proceeding dated 03-04-1991 dismissing the revision petition. Ext.B3 series are receipts of payment of revenue by the appellant allegedly in respect of the 25 cents. In the first appeal true copy of the plan of disputed properties was produced on the side of appellant and marked in evidence as Ext.B5. 5. So far as the issue of possession is concerned, learned Senior Advocate appearing for appellant made heavy reliance on Ext.B4, proceeding dated 30-12-1989. It is stated in Ext.B4 that 84 cents was assigned to Chowkaru and later a portion of the said property measuring 25 cents denoted as R.S.No.32/5 was assigned to the appellant. It is further stated that Chowkaru sold the land assigned to the respondent as per Ext.A1 and on the petition dated 01-06-1987 from the appellant, officials of the department conducted enquiry. Then it was revealed that Chowkaru or the appellant had not occupied the land assigned to Chowkaru as required under the condition of grant of assignment under the Land Assignment Rules. Hence show cause S.A.No.588 of 1997 8 notice dated 31-07-1989 were issued to them. Chowkaru in his statement claimed that he had already taken possession of the 84 cents, constructed a shed and had been residing therein. He started putting up compound wall on one side of the suit property but on account of poverty, could not complete the same. While so, he assigned the property to the respondent. Appellant in his statement said that he was eager to occupy the 25 cents assigned to him and approached the village officials to point out the boundaries of the 25 cents. But village officials pleaded helplessness since there was earlier assignment in favour of Chowkaru including the said 25 cents and they could not point out the boundaries unless the assignment was corrected and it is hence that appellant submitted petition dated 01- 06-1987 which is read in Ext.B4. Respondent in his statement to Special Tahasildar (Land Assignment) stated that issue of patta in favour of Chowkaru was unreasonably delayed by the village officials and that even before the issue of Ext.A1, patta he (respondent) got possession of the suit property as per agreement dated 07-08-1984. The Special Tahasildar was of the view that reason stated by both the assignees (Chowkaru and appellant) for not occupying the land is not satisfactory and that on inspection of the land on 08-11-1989 it was found that respondent had put up stone compound wall on one side and fence enclosure on other sides and planted coconut saplings. That according to the Special Tahasildar was done after receipt of the show S.A.No.588 of 1997 9 cause notice. It is also stated by the Special Tahasildar in Ext.B4 that on verification it was found that the area occupied by the respondent is excluding portion of land assigned to the appellant. 6. Respondent filed the suit in the Vacation Court (Vacation Judge) on 23-04-1991 and along with that, there was an application for temporary injunction as I.A.No.100 of 1991. On 23-04-1991 an ex parte interim order of injunction was passed on that application. The same day respondent filed I.A.No.101 of 1991 to appoint an Advocate Commissioner to inspect the property and prepare a plan showing compound wall and to submit report regard the shed and improvements in the suit property. That application was allowed on 23-04-1991. Advocate Commissioner inspected the property on 26-04- 1991 and measured the property with the assistance of the Village Assistant and Villageman. He measured the suit property with the assistance of FMB(Field Measurement Book) but on measurement it was found that though in Exts.A1 and A2 the suit property-84 cents is stated as comprised in survey No.32/2, the actual extent on measurement is 82 cents comprised in R.S.No.32/2 and 32/3. On the east of suit property is the property comprised in R.S.No31/14 (road) and on the south, R.S.No.53. On the west it is R.S.No.32/13 and on north, R.S.No.32/3. Commissioner reported that he found attempt being made by respondent to construct a house in the suit property. On the eastern side of the suit property, there was a compound wall. S.A.No.588 of 1997 10 On the northern side there was bowlder stone wall up to 156 feet in length from the eastern side. On the south, there was stone compound wall upto 75 links in length from the eastern side and in the remaining portion there was bowlder stones kept in a line demarcating the suit property from the rest. On the western side there was no demarcation as it is a rocky area. Commissioner found coconut saplings planted in the suit property. 7. Ext.B4 is relied on by learned senior Advocate for appellant to show that respondent has no possession of the entire 84 cents but, what is available in Ext.B4 is only the opinion of the Special Tahasildar which is not binding on the Civil Court. The Special Tahasildar stated in Ext.B4 that planting of coconut sapling planted in the suit property was recent. But he did not say about the oldness of the cultivation. Therefore I am not very much impressed by the statement in Ext.B4 that occupation of Chowkaru was recent. Assuming so, Ext.A1 shows that possession was handed over to respondent atleast on 03-05-1989 while the suit was filed in the year 1991. Ext.B4 shows that even as on 01-06-1987, notwithstanding Ext.B1, patta dated 28-07-1982 appellant was groping in the dark as to what exactly were the boundaries of the 25 cents assigned to him and hence he had to go after the Village officials requesting them to point out the boundaries of the 25 cents. The village officials pleaded their inability as the 25 cents assigned to the appellant formed part of the 84 cents already assigned to the S.A.No.588 of 1997 11 respondent. Without knowing which are the boundaries of the 25 cents appellant would not and could not have got possession of the said 25 cents. That persuades me to think that even on that day appellant had not got possession of the 25 cents. It is relevant to note from Ext.B4 dated 30-12-1989 that even in the statement given by appellant to Special Tahasildar (Land Assignment) he claimed that village officials were not able to point out the boundaries of the 25 cents. Therefore, by virtue of Ext.B1, appellant could not claim to have got possession of the 25 cents. If that be so, it is not clear how else and when he got possession of the 25 cents. He has no case that he was given possession by the Government. There is no case or evidence that possession of the suit property was resumed from the respondent or his predecessor, the case in Ext.B4 being that respondent and his predecessor had no possession of the suit property which I am unable to accept. Ext.B3 series do not show that payment of revenue was in respect of the 25 cents allegedly assigned to him. In evidence appellant as DW1 conceded that at the relevant time he was employed abroad and he had not even been to the suit property. He says that he has not seen Ext.C1 and hence could not say anything about contents of Ext.C1. Appellant has no case that the stone compound wall found on the boundaries of the suit property and the cultivation therein reported by the Advocate Commissioner in Ext.C1 were at his instance. There is nothing on record to show that appellant is in possession of S.A.No.588 of 1997 12 the suit property. Evidence on record as concurrently found by the court below show that respondent is in possession of the suit property. 8. Then the next question raised for a decision is whether courts below are justified in granting injunction against the appellant. It is to support the contention that no such injunction could be granted against the real owner that learned senior Advocate relied on the decisions which I have first above stated. The Supreme Court has taken the view that no injunction could be granted against the real owner. I stated that the suit is only one for injunction based on possession paying court fee under section 27(c) of the Court Fees Act and hence enquiry into title is not warranted. The Supreme Court has held in Anathula Sudhakar Vs. P. Buchi Reddy (2008 (4) SCC 594) that in cases where de jure possession is sought to be established on the basis of title to the property as in the case of vacant sites, issue of title may arise for consideration but in other cases if the matter involves complicated question of law and fact relating to title, parties are to be relegated to a comprehensive suit on title. This Court in Antony and Others Vs. Thresia and Others (1997 (1) KLT 494) stated that the principle that possession follows title is applicable to only to vacant sites. Suit property is not a vacant land. It is agricultural land. 9. Then the question is whether in this case, title claimed by the appellant runs into complicated question of law and fact. S.A.No.588 of 1997 13 According to the appellant, 25 cents was assigned to him from out of the 84 cents assigned to Chowkaru as per proceeding dated L.A.10/71/Bela. It is true that Ext.B4, order was challenged by respondent in appeal and revision but lost and going through the averments in the plaint I do not find any admission that the 25 cents claimed by appellant is carved out of the suit property. Ext.C1 shows that the suit property is only 82cents comprised in survey No.32/2 and 32/3. On the east of the suit property is a road comprised in survey No.32/14 and on the further east it is the property comprised survey No.31/1. Ext.B5 produced in appeal gives a diametrically opposite picture. In Ext.B5 the 25 cents over which appellant is laying hands is described as comprised in survey No.32/5 which is far away from the property comprised in survey No.32/2. It is pertinent to note that in between the land comprised in survey No.32/2 and the 25 cents marked in survey No.32/5, a portion of land comprised in survey No.32/1 falls which according to Ext.C1 prepared with the assistance of village assistant and FMB is far east of the suit property. It is pertinent to note that if in between the suit property in survey No.32/2 and 25 cents in R.S.No.32/5 any portion of R.S.No.32/1 falls as stated in Ext.B5 there was no necessity to carve out that 25 cents comprised in R.S.No.32/2. Further fact to be noted is that Ext.B5 is not properly proved. Going by Ext.B4, even as on 01-06-1987 and even on 31-12- 1989 when Ext.B4 order was issued revenue officials had not plotted S.A.No.588 of 1997 14 the 25 cents in R.S.No.32/5. The possibility therefore is that land in R.S.No.32/5 as stated in Ext.B5 was plotted after 31-12-1989. These facts in my view present complicated questions of facts and law regarding the title claimed by the appellant over 25 cents which is not required to be adjudicated in this case which is only a suit for prohibitory injunction. In the decisions relied on by learned Senior Advocate title of the persons against whom injunction was sought was either admitted or there involved no complicated question of law and fact to decide on title. That situation did not arise on the facts of this case. First appellate court observed that Ext.B4 is void for the reason that the proceeding under the Land Conservancy Act for resuming possession of the suit property from the respondent or his predecessor in interest was not initiated when 25 cents was assigned to the appellant. This being a suit for injunction as I observed earlier, it is not necessary to go into the details of title claimed by appellant. Therefore that finding has to be set aside and I do so. In the light of the discussion I have made, I do not find reason to interfere with the finding of the courts below that respondent has possession of the suit property. However the claim of appellant that he has title over 25 cents and it formed part of the suit property are left open for adjudication in a comprehensive suit if any instituted by appellant and seeking proper reliefs, if he is otherwise entitled to that course. I answer the substantial questions of law as above. I find no reason S.A.No.588 of 1997 15 to interfere with the judgment and decree of courts below granting relief of injunction to the respondent. Resultantly the second appeal fails. It is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/