IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 SA.No. 911 of 1999(A) --------------------- AS.104/1993 of ADDL.SUB COURT,KOTTAYAM OS.64/1988 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT(S)/APPELLANT NO.1/1ST PLAINTIFF AND LRS OF APPELLANT NO.2/2ND PLAINTIFF: -------------- 1. A.K.PURUSHOTHAMA PILLAI ALIAS A.K.P. PILLAI, ARANATTU ELAKKATTU HOUSE, KANGAZHA. 2. DILIP KUMAR, MEKKAMADHAM, PERUNNA EAST MURI, CHANGANACHERRY. 3. RAJENDRA KUMAR OF -DO- -DO- BY ADV. SRI.G.UNNIKRISHNAN SRI.P.V.RAMESH SHANKAR SRI.G.P.SHINOD RESPONDENT(S)/RESPONDENTS/DEFENDANTS AND LEGAL REPRESENTATIVES OF 2ND APPELLANT/2ND PLAINTIFF: --------------- 1. AMMINI JOSEPH, KALEEKKAL HOUSE, PAZHAVATHU MURI, CHANGANACHERRY. 2. JOSEPH OF -DO- -DO- 3. BEENAKUMARI, MEKKAMADHAM, PERUNNA EAST MURI, CHANGANACHERRY. ADV. SRI.P.R.VENKETESH FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.911 of 1999 --------------------------------------- Dated this 08th day of April, 2010 JUDGMENT Admit. 2. The following substantial question of law is framed for a decision: “ whether in a suit for injunction and damages courts below were justified in going into the title claimed by the appellants/plaintiffs and entering a finding against the appellants/plaintiffs.” 3. The second appeal is brought up by appellant No.1 and legal representatives of deceased appellant No.2 (plaintiffs in the trial court) against concurrent verdict of the courts below. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 4. Plaintiffs claimed title and possession of plaint schedule item Nos. 1 and 2 properties. According to them, plaintiff No.1 got title and possession of item No.1 - 9 cents as per purchase certificate No.1004 of 1975 and he constructed a building in the said item in the year 1963 which was renewed in the year 1973. Plaintiffs claimed title and possession over item No.2 - 13 cents as per gift deed No.2269 of SA No.911/1999 2 1985. It is alleged that defendants trespassed into the property and demolished the basement constructed there. Hence the suit for injunction against further trespass and for recovery of damages. Defendants resisted the suit contending that plaintiffs have neither title nor possession of the suit property. They claimed that plaintiff No.1 obtained purchase certificate in respect of item No.1 as per order in O.A.No.83 of 1975 which was set aside by L.R.A.S.No.1004 of 1976 (Ext.B1 is the judgment of the Land Reforms Appellate Authority). So far as item No.2 is concerned, contention is that the gift deed relied on by plaintiffs is fraudulent, it was executed on 04-06-1985 but registered only on 30-09-1985 which itself indicated its fraudulent nature. But in the meantime husband of appellant No.2 alienated item No.2 as per Ext.B2, sale deed dated 12-08-1985 registered on 22-08- 1985 in favour of defendant No.2. Trial court found that plaintiffs were not able to prove title and possession of the property and consequently dismissed the suit. That has been confirmed by the first appellate court. Hence the second appeal. It is argued by learned counsel for appellants/plaintiffs that this being a suit for injunction though, a prayer for recovery of damages was also made, courts below were not correct in dealing with the title claimed by plaintiffs particularly since there is no court fee paid under section 27(a) of the Court Fees Act. SA No.911/1999 3 According to the learned counsel for respondents/defendants conscious about the contentions raised by the parties, they went to trial and plaintiffs have invited a decision on the point and hence the finding has to remain in force. 5. Ordinarily, in a suit for injunction based on possession except when without reference to title it is not possible to decide the issue regarding possession it is not necessary to decide the question of title. In this case, though title of plaintiffs was denied by the defendants it is seen from the judgment of trial court that no issue has been raised regarding title and plaintiffs have not paid court fee under section 27(a) of the Court Fees Act. Hence, it was not necessary for the learned Munsiff to gone into the issue regarding title since the property involved is agricultural land where buildings are allegedly constructed and issue regarding possession could have been decided even without reference to title claimed by the parties. Learned counsel for appellants/plaintiffs pointed out that trial court has not framed an issue regarding title if at all that issue had to be considered by the trial court. Having regard to the facts and circumstances I am persuaded to accept the contention of learned counsel for appellants/plaintiff No.1 and legal representatives of plaintiff No.2 that courts below need not have conducted enquiry and entered into SA No.911/1999 4 finding regarding title claimed by the respective parties. 6. So far as the finding regarding possession is concerned, that finding is entered based on the evidence on record and does not involve any substantial question of law. The substantial question of law framed is answered accordingly. Resultantly the second appeal is allowed in part to the extent that finding entered by the courts below as to the title of parties is set aside. In all other respects judgment and decree of the courts below will remain in force. No cost. (THOMAS P JOSEPH, JUDGE) Sbna/- THOMAS P.JOSEPH, J. S.A.No.911 of 1999 JUDGMENT 8th April, 2010.