IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 RSA.No. 599 of 2011() --------------------- AS.230/2007 of II ADDL. DISTRICT COURT, PALAKKAD OS.114/2003 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF : --------------------------------------- K.LAKSHMIDEVI, W/O.K.APPUKUTTAN, 16/602, KUNNANOOR AMSOM AND DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENT/ RESPONDENTS 2 TO 7/ DEFENDANT NO.2 & SUPPL DEFENDANTS 3 TO 7 : --------------- 1. RATHEESH, RESIDING AT 16/603, KUNNANOOR AMSOM AND DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT, KUNNATHURMEDU P.O., PIN-678013. 2. LAKSHMIDEVI, W/O.DEVARAJA GOWDER, 16/603, VALIYAVEEDU P.O., KUNNATHURMEDU, PALAKKAD. 3. MAHESWARI, W/O.L.R.MOORTHY, IN DO. DO. DO. 4. VASUMATHY, D/O.L.R.MURTHY, IN DO. DO. DO. 5. SANTHI, W/O.KRISHNAMOORTHY, IN DO. DO. 6. SASIREKHA, RESIDING AT DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.599 OF 2011 --------------------------------------------- Dated 5th July, 2011 JUDGMENT Plaintiff in O.S.114/2003 on the file of Additional Munsiff court, Palakkad is challenging the dismissal of the suit for permanent prohibitory injunction, confirmed by Additional District Judge, Palakkad in A.S.230/2007. Appellant would contend that he has been put in possession of the plaint schedule properties, which are items 4 to 12 of Ext.A1 agreement for sale, on the date of execution of Ext.A1. It was contended that under Ext.A1 agreement dated 3/5/1997 executed by the deceased first defendant and his wife third defendant, agreed to sell the plaint schedule properties as well as items 1 to 3 RSA 599/11 2 of Ext.A1 agreement, for a total consideration of Rs.10,50,000/- and received an advance of Rs.3,00,000/- and put the appellant in possession of items 4 to 12 of Ext.A1 agreement, which are the plaint schedule properties. It is contended that they agreed to execute the sale deed after receiving the balance consideration within three months on getting a purchase certificate in the name of the first defendant. According to the appellant he has always been ready and willing to perform his part of the agreement and continued to be in possession of the plaint schedule properties. While so, second defendant, grand son of the first defendant started residing with first defendant and demanded appellant to hand over possession of the properties. When it was denied, there was RSA 599/11 3 an attempt to trespass. Appellant sought a decree for permanent prohibitory injunction, restraining the defendants from forcibly dispossessing the appellant from the plaint schedule properties. On the death of first defendant, his legal heirs were impleaded. Defendants resisted the suit contending that there was no agreement for sale and first defendant had no legal possession over the plaint schedule properties. K.Balabadran had purchased the properties in court auction in E.P.132/72, in execution of the decree in O.S.128/1968 on the file of Sub Court, Palakkad. The properties were delivered to Balabadran on 11/10/1977. The defendants are only agents or care takers of Balabadran, who is in possession of the properties. The agreement for sale was concocted and first RSA 599/11 4 defendant had borrowed Rs.2,00,000/- from the husband of the appellant in 1957, for the purpose of the marriage of his daughter. At that time several signed blank stamp papers were obtained from defendants. The agreement for sale is fabricated using the signed blank stamp paper. Appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Exts.A1 and A2, B1 to B8 and C1 found that Ext.A1 agreement was executed by the first defendant in favour of the appellant and it is genuine. But it was found that appellant did not obtain possession of the plaint schedule properties and therefore, he is not entitled to the decree sought for. Appellant challenged the judgment before District Court, Palakkad in A.S.230/2007. RSA 599/11 5 Before the first appellate court respondents produced judgment in O.S.348/1994, the suit instituted by the first defendant earlier before Additional Munsiff court, Palakkad seeking a decree for injunction restraining Balabadran from trespassing into the properties asserting that he is in possession of the properties, which was dismissed on 29/6/1996, with a petition under Rule 27 Order XLI of Code of Civil Procedure to receive it as additional evidence. Learned District Judge allowed that application and received it as additional evidence and marked Ext.B9. Learned Additional District Judge on re-appreciation of the evidence found that when Ext.A1 agreement was entered into in 1997, first defendant could not have been in possession of the properties, as O.S.348/1994 instituted by the first RSA 599/11 6 defendant was dismissed finding that he was not in possession of the property and if so, appellant could not have obtained possession of the properties and in such circumstances, he is not entitled to the decree sought for. Decree is challenged in the second appeal. 3. Learned Senior counsel appearing for the appellant was heard. 4. Learned Senior counsel argued that though defendants resisted the suit asserting that they are in possession of the properties and the courts below found that Ext.A1 agreement is genuine and it was executed by the first defendant and Ext.A1 shows that plaint schedule properties were put in the possession of the appellant on the date of execution of Ext.A1 and in the light of the recitals in Ext.A1, finding of the courts below that RSA 599/11 7 appellant did not obtain possession under Ext.A1 is not sustainable. Learned Senior counsel would argue that even if, first defendant had lost his rights, which was available earlier, due to the decree in O.S.128/1968, when first defendant has been in possession of the properties, he is competent to hand over possession to the appellant and under Ext.A1, possession was handed over and hence appellant is entitled to be in possession of the property and in such circumstances, a decree for injunction should have been granted. 5. On hearing the learned Senior counsel, I do not find any substantial question of law involved in the appeal. The suit is only one for injunction. Appellant is claiming possession under Ext.A1 agreement for sale. Though respondents denied execution of RSA 599/11 8 Ext.A1 and contended that it is not a genuine agreement, courts below found that Ext.A1 is a genuine agreement and was executed by the respondents. The only question is whether appellant obtained possession of the properties under Ext.A1 agreement and has been in possession of the properties on the date of institution of the suit. Though Ext.A1, shows that possession of the properties shown in Ext.A1 excluding item 1 to 3, were handed over, executants of Ext.A1 could hand over possession only if, they have been in possession of the properties. As rightly found by the courts below, pursuant to the decree in O.S.128/1968, the properties were put up for sale in E.P.132/1972 and Balabadran purchased the properties in court auction and obtained delivery of the properties through court. RSA 599/11 9 Therefore, pursuant to the delivery taken, the court first defendant could not have been in possession of the properties. Added to this, first defendant had instituted O.S.348/1994, against Balabadran, before Additional Munsiff court, Palakkad contending that he has been in possession of the properties and his possession was not disturbed pursuant to the delivery taken in E.P.132/1972. In fact Ext.A2 copy of the plaint in the suit was filed by the appellant before the trial court to contend that first defendant has been in possession of the properties. But as is clear from Ext.B9, that suit was dismissed on 29/6/1996. Ext.B9 therefore, establishes that learned Munsiff on the evidence found that first defendant was not in possession of the property in 1994 when the suit was instituted. If that be the case, no RSA 599/11 10 further explanation is necessary to hold that first defendant could not have in possession of the properties in 1997, so as to hand over possession of the properties to the appellant under Ext.A1 on 3/5/1997. If that be so, finding of the courts below that appellant did not establish possession of the plaint schedule properties and therefore, not entitled to the decree for injunction is perfectly correct and warrant no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.