IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 SA.No. 797 of 1996(C) --------------------- OS.154/1987 of ADDL.MUNSIFF COURT,KOZHIKODE-II AS.68/1992 of ADDL.DISTRICT COURT, KOZHIKODE .................... APPELLANT(S): -------------------- CHAMBAYIL MOHANDAS, S/O LATE AYYAPPAN, CHAMBAYUL HOUSE, P.O ARTS COLLEGE, KOZHIKODE. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): ---------------------- 1. MANGATHARA RAVEENDRAN, S/O RAGHAVAN, MANGATHARA HOUSE, 'RAGAM', P.O ARTS COLLEGE, KOZHIKODE-18. 2. MANGATHARA SOMASUNDARAN, S/O NAYADIKUTTY, P.O ARAKKINAR, KOZHIKODE-28. * 3. MANGATHARA RAJAN, S/O LATE THIRUMALA, MANGATHARA HOUSE, P.O ARAKKINAR, DIED KOZHIKODE-18 4. CHARAL SYAMALA, S/O LATE THIRUMALA, CHARAL HOUSE, POST KOLATHARA, KOZHIKODE-673 695. 5. KAKKADATH SOBHANA, D/O LATE THIRUMALA, KAKKADATH HOUSE, P.O NORTH BEYPORE, KOZHIKODE-673 015. 6. KORAMPAMKANDY PRASANNAKUMARY, D/O LATE THIRUMALA, KORAPPAMKANDY HOUSE, KINASSERY, POST POKKUNNU, KOZHIKODE-673 013. 7. PARAMBATH HARSHALATHA, D/O LATE THIRUMALA, PARAMBATH HOUSE, POST WEST HILL, CHUNGOM, KOZHIKODE-673 065. 8. CHAMBAYIL GOPALAN, S/O LATE THIRUMALA, CHAMBAYIL HOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. SA.No. 797 of 1996(F) 2 9. CHAMBAYIL SUGATHAN, S/O SANTHA, CHAMBAYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. * 10. CHAMBAYIL SURESHKUMAR DIED 11 CHAMBAYIL SUNDARAN, CHAMBAYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 12. CHAMBAYIL GEETHA, D/O SANTHA, CHAMBAYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 13. CHAMBAYIL SATHEESHKUMAR, S/O SANTHA, CHAMBAYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 14. CHAMBAYIL AJITH KUMAR, S/O SANTHA, CHAMBAYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 15. CHAMBAYIL MANOJKUMAR, CHAMBIYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 16. CHAMBAYIL SAJEEV, CHAMBIYILHOUSE, POST THIRUVANNUR, NEAR COTTON MILL COMPANY, KOZHIKODE-673 029. 17. CHAMBAYIL SUGUNADAS, S/O LATE AYYAPPAN, CHAMBAYIL HOUSE, POST ARTS COLLEGE, KOZHIKODE-18. 18. CHAMBAYIL KALLIANI, W/O LATE AYYAPPAN, CHAMBAYIL HOUSE, POST ARTS COLLEGE, KOZHIKODE -18 19. CHAMBAYIL VALLY, W/O BALAN, -DO- -DO- 20. CHAMBAYIL RANI, W/O DASAN, -DO- -DO- 21. KELAPPAN (DIED ON 29/07/1996), LEGAL REP. ARE: 22. CHAMBAYIL SOUMINI, W/O LATE KELAPPAN, CHAMBAYIL HOUSE, NEAR SUNI ICE COMPANY, POST ARAKKINAR, KOZHIKODE 67 028. 23. CHAMBAYIL SIVAN, S/O LATE KELAPPAN, -DO- -DO- SA.No. 797 of 1996(F) 3 * ADDITIONAL RESPONDENTS 24 TO 26: 24. MANGATHARA BALAMANI, W/O LATE RAJAN, C/O VADAKKEKKUNNATH GOVINDAN, KAMALA SADAN, NEAR KOYANCO & CO., WEST HILL P.O, KOZHIKODE. 25. BRIJESH, S/O LATE RAJAN, -DO- -DO- 26. BRIJITHA(MINOR), D/O -DO- -DO- REPRESENTED BY GUARDIAN -DO-. * ADDITIONAL RESPONDENTS 27 TO 29: 27. BEENA RANI, AGED 41 YEARS, W/O LATE CHAMBAYIL SURESHKUMAR, CHAMBAYIL HOUSE, NEAR THIRUVANNUR COTTON MILL COMPANY, P.O THIRUVANNUR, KOZHIKODE 673 029. 28. C.AMIT LAL, AGED 14 YEARS (MINOR), S/O LATE CHAMBAYIL SURESHKUMAR, CHAMBAYIL HOUSE, NEAR THIRUVANNUR COTTON MILL COMPANY, P.O THIRUVANNUR, KOZHIKODE 673 029. REPRESENTED BY BEENA RANI -DO- -DO- 29. C.SUMIT LAL, AGED 12 YEARS (MINOR), S/O LATE CHAMBAYIL SURESHKUMAR, CHAMBAYIL HOUSE, NEAR THIRUVANNUR COTTON MILL COMPANY, P.O THIRUVANNUR, KOZHIKODE 673 029. REPRESENTED BY BEENA RANI -DO- -DO- ADV. SRI.MKS.MENON SRI.K.L.NARASIMHAN FOR R1 * ADDITIONAL RESPONDENTS 24 TO 26 ARE IMPLEADED AS TE LRS OF DECEASED 3RD RESPONDENT AS PER ORDER DATED 13/09/2007 IN I.A 1512/97. * ADDL. RESPONDENTS 27 TO 29 ARE IMPLEADED AS TE LRS OF DECEASED R10 AS PER ORDER DATED 04/09/2007 IN I.A 510/2005. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010 ALONG WITH SA NO. 830 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 797 of 1996(F) ORDER IN C.M.P NO.1674/1996 DISMISSED. 09/12/2010 Sd/- S.S.SATHEESACHANDRAN JUDGE S.S.SATHEESACHANDRAN, J -------------------------------------- S.A Nos.797 OF 1996 & 830 OF 1996 --------------------------------------------- Dated this the 10th day of December 2010 JUDGMENT These two appeals arise from two suits jointly tried and disposed under a common judgment by the learned Munsiff, Kozhikode. 2. Both suits were for injunction (O.S No.154 and 292 of 1987), one of them filed by the present appellant and the other, by one Kelappan, in which, later, pursuant to transfers effected by him, two more plaintiffs were impleaded as supplemental plaintiffs. O.S No.154/87, the earlier of the two suits, was filed by the aforesaid Kelappan. in which two items of properties were included, the former having an extent of 13.5 cents and the latter, 7 cents. Pending suit, both properties were transferred by the aforesaid Kelappan in favour of his sister and her son, and those assignees were thereupon impleaded as additional plaintiffs in the suit. Plaintiffs claimed title and exclusive possession over the two items described in the suit and canvassed for a decree of injunction against the defendants, three in numbers, alleging threat of trespass from them over the properties. The third defendant in that suit is the present appellant in both these S.A Nos.797/96 & 830/96 - 2 - appeals. The first defendant in the suit was the brother of the first plaintiff, namely, Kelappan. Second and third defendants are the children of the first defendant. Resisting the suit claim, those defendants filed a joint written statement, in which they contended that pursuant to an oral sale, the plaintiff, after receiving the full consideration, had handed over the possession of plaint item No.2 and also the second tak of plaint item No.1 which consisted of two taks. Ever since such oral sale over the properties, which was stated as having taken place at two different points of time, it was contended that the third defendant is in exclusive possession and enjoyment of the properties was the resistance put up to the decree of injunction applied for. Pending the above suit, the third defendant in the previous suit filed the other suit O.S No.292/87 wherein the item No.2 and second tak of item No.1 described in the previous suit, over which possessory title on the basis of oral sale was claimed, was included as suit properties to seek a decree of perpetual prohibitory injunction against the second plaintiff and the legal heirs of the third plaintiff in the previous suit, who by that time had passed away. The defendants in that suit, who were the plaintiffs in the previous suit, filed a written statement disputing the claim set up over the properties for the injunction. S.A Nos.797/96 & 830/96 - 3 - 3. Both the suits were jointly tried treating O.S No.154/1987 as the main case in which evidence was recorded. On the materials placed by both sides, which consisted of PW1 and PW2 and Exts. A1 to A15 for the plaintiffs and DW1 and DW2 and Ext.B1 for the defendants and Ext.C1 report and Ext.C2 rough sketch prepared by an advocate commissioner, the trial, court forming a conclusion that the plaintiffs in O.S No.154/87 are not having exclusive possession over the property described in that suit, nonsuited them. Suit filed by the appellant as plaintiff, O.S No.292/87, with respect to the properties described thereunder on the materials placed, he being found in possession, a decree of injunction was granted allowing that suit. The decision so rendered under a common judgment by the trial court was challenged in A.S No.67/92 and 68/92 by the plaintiffs in O.S No.154/87 who were the contesting defendants in the other suit, O.S No.292/87. The lower appellate court, after reappreciating the materials tendered in the case, reversed the decision taken by the trial court, and differing from its conclusions granted a decree to the plaintiffs in O.S No.154/87 and dismissed the suit O.S No.292/87 filed by the present appellant as plaintiff. The common judgment so rendered in the two appeals by the lower appellate court is assailed by the appellant who suffered the adverse decision thereunder. S.A Nos.797/96 & 830/96 - 4 - 4. I heard the counsel on both sides. So far as the appeal S.A No.830/96 arising from the suit filed by the present appellant as O.S No.292/87, in which a decree of injunction in respect of two items of properties was canvassed for, on the basis of an oral sale from Kelappan, the first plaintiff in O.S No.154/87, the learned counsel for the appellant knowing fully well the ambit and scope of Section 54 of the Transfer of Property Act and also Section 17 of the Registration Act, both of which in unmistakable terms spell out that any right over an immovable property, where the value exceeds a sum of Rs.100/-, can be set up as a claim only under a registered instrument, rightly and correctly, did not pursue the challenge against the adverse decision rendered in O.S No.292/87, by which the lower appellate court reversing the decree granted by the trial court had dismissed the suit. So much so, what survive for consideration is only the correctness of the decision rendered by the lower appellate court in granting a decree in O.S No.154/87 reversing the dismissal of that suit by the trial court. The materials tendered in the case demonstrate in unmistakable terms that at least over major portions of the two items described in the above suit, the appellant/third defendant has exclusive possession and enjoyment and when that be so, no decree of injunction whether it be claimed on the basis of title or otherwise could have been S.A Nos.797/96 & 830/96 - 5 - granted to the plaintiffs in that suit is the submission of the learned counsel for the appellant. Referring to the commission report, exhibited as Ext.C1, and also the rough sketch Ext.C2, the learned counsel contended that the features noticed by the advocate commissioner at the site in unerring terms indicate that the third defendant is in occupation of a shed situate in plaint item No.2 property and that circumstance itself is sufficient to disentitle the plaintiff in the suit from having a decree of injunction over that property. The lower appellate court has brushed aside the material circumstances presented in the commission report and also the evidence, more particularly that of DW1 and DW2, establishing possessory right of the appellant over the suit property on flimsy reasoning, and the decree of injunction granted in favour of the plaintiff in the suit where they have failed to establish their exclusive possession over the properties described is liable to be set aside is the submission of the counsel. Per contra, the learned counsel for the plaintiffs in the above suit, highlighting that the claim of possession canvassed by the appellant was on the basis of an oral sale and that having been found to be not susceptible, and, further, his suit for injunction on such claim turned down, the opposition raised impeaching the possessory claim of the plaintiff, which was canvassed on the basis of his title has no merit or value S.A Nos.797/96 & 830/96 - 6 - at all. Even by the admission of the appellant, title of the plaintiff over the suit properties, both items, has become unimpeachable and that being so, where the oral sale canvassed for as a defense was found meritless, the report of the advocate commissioner, which was prepared overlooking the directions of the court and by recording the statements of the neighbours, expressing views over possession by the parties in the suit, which was rightly and correctly found improper and meritless by the lower appellate court, by no stretch of imagination would render any assistance to the defendants to set up and claim a case of rival possession against the plaintiff, where they are shown to be the owners of the property, is the submission of the counsel. No interference with the decision rendered by the lower appellate court, by which a decree of injunction was granted to the plaintiff in O.S No.154/87, emerges for consideration on the facts and circumstances established by the materials tendered in the case and both appeals deserve only to be dismissed, is the further submission of the counsel. 3. Perusing the judgments rendered by both the courts below and also the materials involved, with reference to the submissions made by the counsel on both sides, I find that the only question to be looked into is whether the lower appellate court was justified in granting a decree to the plaintiffs in O.S No.154/87 reversing the S.A Nos.797/96 & 830/96 - 7 - dismissal of that suit by the trial court. So far as the dismissal of the connected suit O.S No.292/87 where the claim of possession was based on oral sale by the appellant, no further comment need be made, as the decision rendered thereof by the lower appellate court is unassailable. True, a decree of injunction can be granted to a party only where he establishes exclusive possession over the property described in the suit, in respect of which such a discretionary relief has been canvassed for. The main brunt of attack levelled against the decree of injunction granted in favour of the plaintiff in the above suit, by the lower appellate court, in reversal of the dismissal of that suit by the trial court, is on the basis of possessory claim made by the appellant over portions of the property described in that suit. Though his suit for injunction was dismissed, still, if the materials tendered in the case indicate of his physical possession and enjoyment over portions of the properties covered by the suit O.S No.154/87 the plaintiff there in cannot be granted any injunction is the line of argument projected by the learned counsel for the appellant. In appreciating that question, the totality of the facts involved, and further, the relationship of the parties as well necessarily has to be taken into account. The appellant/third defendant is the son of the brother of the plaintiff in O.S No.154/87. It is an admitted case that the plaint S.A Nos.797/96 & 830/96 - 8 - properties involved in the suit with other items were settled in favour of the first plaintiff , Kelappan, by his mother under Ext.A1 deed. It has also come out that pursuant to such settlement deed the first plaintiff had transferred portions of some properties thereunder in favour of his two brothers, the first defendant and another. So far as the property conveyed to the first defendant by the first plaintiff, it has come out that it is situate adjacent to plaint item No.2 property. When the parties are having close relationship, the possessory claim made by one against the other has to be looked in the back drop that normally in the absence of one, the other may attend to and take care and even maintain the property, and also protect the same from invasion from third parties. In the given facts of the case, possessory claim over portions of the property covered by the suit canvassed by the appellant/third defendant was on the basis of an oral sale with the first plaintiff by his father, the first defendant. When that case canvassed was found against and even the suit filed on that basis dismissed as meritless, wherein the relief claimed was one of injunction on the basis of possession and such adverse decision had been rendered against him against the plaintiff in the present suit, who is admittedly having title over the property, it is needless to state that his resistance or challenge as if he continued to have possession S.A Nos.797/96 & 830/96 - 9 - over the property and that should be recognised by the court is feeble and lacks value. The lower appellate court has rightly and correctly appreciated the facts and circumstances presented in the case with reference to the materials tendered to form the conclusion that the plaintiffs in O.S No.154/87, who are admittedly the title holders, have possession over the property and thus entitled to the decree of injunction applied for. The existence of a shed in item No.2 property and a fence constructed dividing item No.1 from item No.2, it is seen, had been canvassed before the lower appellate court as well to contend that the present appellant has possession over portions of the suit property. The records of the case would show that there was an interim order of injunction pending the above suit and the plaintiffs had moved an Interlocutory Application during the pendency of the suit imputing violation of the injunction by the defendant in putting up a construction and also a fence in the property. Though no inquiry was conducted over that petition, the presence of the fence and structure, which had been taken note by the advocate commissioner and given expression to in his report, has necessarily to be viewed in the back drop of the case set up by the plaintiffs that violating the order of injunction an interference was made over the suit property. As pointed out by the lower appellate court, the S.A Nos.797/96 & 830/96 - 10 - structure described as shed by the commissioner, was uninhabitable, and further, the appellant who claimed of having residence in such shed with his family did not produce any worthmentioning material to prove his occupation. The shed has no number and the appellant did not produce even his ration card or such other material with respect to that shed. Plaintiffs in the suit, countering the case of occupation over the shed by the appellant, had contended that it was a temporary structure put up by him for storing deadwoods, which in the given facts deserved to be treated as probable. So, on an overall view of the facts and circumstances presented in the case, and the materials placed, I find that the decision rendered by the lower appellate court decreeing O.S No.154/87 deserve only to be upheld. There is no question of law, leave alone any substantial question of law involved in the appeal challenging the decision rendered by the lower appellate court in the above suit. Both the appeals are dismissed directing the parties to suffer their respective costs. Sd/- S.S.SATHEESACHANDRAN JUDGE vdv //True Copy// P.A to Judge