IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 SA.No. 335 of 1999(F) --------------------- AS.8/1997 of DISTRICT COURT, LAKSHADWEEP OS.5/1992 of MUNSIFF COURT, AMINI .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- PUTHIYAPURA HARRIS, S/O.LATE KOMBUPURA HASSAINAR, RESIDING IN KILTAN ISLAND, LAKSHADWEEP. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES RESPONDENT(S)/APPELLANTS/DEFENDANTS 1 TO 5: --------------- 1. CHARACHERRI HAYATH, S/O.MISBAH, RESIDING IN KILTAN ISLAND, LAKSHADWEEP. 2. CHERIYA KATTAKAM SANNAM KADHIYA, D/O.MISBAH, RESIDING IN -DO- (*)3. CHERIYA KATTAKAM ABDULLA, S/O.MISBAH, RESIDING IN -DO- (DIED. LRS IMPLEADED) 4. CHERIYA KATTAKAM POOKUNHI, S/O.MISBAH, RESIDING IN -DO- 5. CHERIYA KATTAKAM PONPILLAI, W/O.MISBAH, RESIDING IN -DO ADDL.R6 TO R10 IMPLEADED: 6. NAJEEMOLE-WIFE, PANDARAM HOUSE, KILTAN ISLAND, LAKSHADWEEP. 7. KADEEJAMABI-DAUGHTER, RESIDING AT -DO- -DO- 8. AKRAM ASIF-SON, RESIDING AT -DO- -DO- 9. FAZEELA-DAUGHTER, RESIDING AT -DO- -DO- SA NO.335/1999 2 10. FARZEENA-DAUGHTER, RESIDING AT -DO- -DO- (*)ADDL.R6 TO R10 ARE IMPLEADED AS THE LRS OF THE DECEASED R3 VIDE ORDER DATED 22.9.2009 IN IA NO.2149/2009. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 TO R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.335 of 1999 -------------------------------------- Dated this the 5th day of November, 2009. JUDGMENT One of the substantial questions of law framed for a decision in the Second Appeal is whether, assuming that respondents are co-owners of the suit property, appellant who claimed to be in exclusive possession of the property is entitled to get a decree for injunction against the respondents' trespassing into the property. Second Appeal arose from judgment and decree of learned District Judge, Lakshadweep in A.S.No.8 of 1997 reversing the judgment and decree of learned Munsiff, Amini in O.S.No.5 of 1992 and dismissing the suit. 2. Appellant/plaintiff, it is not disputed acquired the suit property – 25 cents in Sy.No.26/14 as per Exts.A1 and A2, assignment deed Nos.24 of 1951 and 47 of 1957. Respondent Nos.1 to 4 are the children and respondent No.5, wife of Misbah, deceased brother of the appellant (Pending Second Appeal, respondent No.3 died and his legal representatives are impleaded). Appellant claimed that he settled the suit property in favour of his wife and children as per Ext.A8, gift deed dated 23.9.1991 but, in his capacity as their power of attorney is retaining possession and managing the property. Alleging that respondents attempted to trespass into the suit property he sued them for a decree for prohibitory injunction. Respondents contended that as per a settlement in the family between their predecessor, appellant and their sister the suit property was SA No.335/1999 2 divided among appellant and their predecessor-in-interest, Misbah as per Ext.B3 dated 1.10.1959 and thus, their predecessor-in-interest became a co-owner of the suit property along with the appellant. On the death of Misbah, they continued to be co-owners with the appellant in joint possession of the suit property. They contended that appellant is not entitled to the relief of injunction. Learned Munsiff accepted the contention of respondents that there was a family settlement between the predecessor-in-interest of the respondent and the appellant as per Ext.B3 dated 1.10.1959 and thus, appellant and predecessor-in-interest of the respondents became co-owners of the suit property. Learned Munsiff found that appellant is in exclusive possession of the suit property and hence, his possession has to be protected by a decree for prohibitory injunction. Accordingly the suit was decreed. Respondents challenged that judgment and decree before learned District Judge. Appellant, aggrieved by the finding that himself and predecessor-in-interest of the respondents are co-owners preferred a cross objection. Learned District Judge confirmed the finding of the learned Munsiff that appellant and respondents are co-owners of the suit property but found that appellant is not entitled to get a decree for prohibitory injunction against the respondents on the facts and evidence of the case. Holding so, judgment and decree of learned Munsiff were reversed and the suit was dismissed. Appellant is aggrieved and has preferred the Second Appeal. Apart from the substantial question of law which I have first above mentioned, the following substantial questions of law are also SA No.335/1999 3 framed for a decision: i. Whether the family settlement relied on by the respondent is valid in the absence of registration under the Indian Registration Act and whether Ext.B3 is only a mode of enjoyment of the property without transfer of interest in favour of the predecessor-in-interest of the respondent? ii. Whether, on the evidence on record courts below ought to have found that there is ouster of the respondents from the suit property entitling the appellant to protect his exclusive possession of the property by a decree for prohibitory injunction. Learned counsel for appellant urging the above questions contended that finding entered by the courts below that there was a family settlement as per which half share of the suit property was transferred to the predecessor-in- interest of the respondents is unsustainable. According to the learned counsel, the so called family settlement evidenced by Ext.B3 is only a mode of enjoyment of the property not amounting to transfer of interest in favour of the predecessor-in-interest of the respondents. It is contended by learned counsel that evidence on record would show that appellant had ousted the respondents and their predecessor-in-interest from possession of the suit property and hence, appellant is entitled to protect his possession, the remedy of the respondents if any being to sue for partition. Learned counsel for respondents contended that Ext.B3 is not merely a mode of enjoyment but a conferment of right on Misbah, predecessor-in-interest of the respondents, a separate SA No.335/1999 4 registration of that family settlement was not required in accordance with the law in force in the Island during the relevant time since it has been registered with the court of Tahsildar as required under the law in force. It is contended by learned counsel that there is nothing on record to show that appellant ousted the respondents or their predecessor-in-interest from possession of the property and as such respondents being co-owners of the property along with the appellant no decree for injunction could be granted as rightly found by the learned District Judge. 3. I shall refer to the question whether courts below were right in holding that there was a family settlement which conferred one half right in the suit property in favour of predecessor-in-interest of the respondents. Ext.B3 is the family settlement so called dated 1.10.1959. It is not disputed that the settlement involved appellant, Misbah, the predecessor-in-interest of the respondents and their three sisters. It is also not disputed that apart from the suit property acquired by the appellant as per Exts.A1 and A2 (referred to in Ext.B3 as 'Thursday property', meaning, self acquired property), the properties belonging to the family (Friday properties) were also the subject matter of settlement between the parties evidenced by Ext.B3. Ext.B3 says that the suit property acquired by appellant as per Exts.A1 and A2 is divided among the appellant and Misbah and that the latter is conferred half right over the suit property. It is seen from the copy of the order attached to Ext.B3 passed by the court of Tahsildar on 1.10.1959 that the parties wanted the settlement as per SA No.335/1999 5 Ext.B3 to be recorded and registered. The Tahsildar after considering the application allowed it and accordingly the settlement was recorded and registered. It is not disputed before me by the learned counsel for appellant also that as the law stood in force in the Island at the time of Ext.B3, registering the settlement in the court of Tahsildar amounted to registration of the document. I have gone through Ext.B3 and I am unable to find it as a mere mode of enjoyment of the suit property. Instead, as rightly found by the courts below it amounted to a family arrangement as per which half right over the suit property was conferred on the Misbah, predecessor-in-interest of the respondents. Substantial questions of law raised in this regard are answered accordingly. 4. Then the next question is whether respondents being co-owners of the suit property could be injuncted from entering the property by a decree for prohibitory injunction. Learned counsel for appellant has placed reliance on the decisions in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and others (AIR 1924 PC 144), Avanthika & another v. Sita Bai & others (1963 KLJ 1164), Madhavan Nambiar v. Narayanan Nair (1970 KLT 653) and Lingaraj Misra & others v. Bhubaneswar Mohapatra & others (AIR 1962 Orissa 31). According to learned counsel, evidence on record would show that there was an ouster of the respondents and their predecessor-in-interest in the suit property in which case appellant is entitled to protect his possession over the property. SA No.335/1999 6 5. Respondents have a contention that in so far as appellant claimed that he had gifted the property to his wife and children as per Ext.A8 dated 23.9.1991 while he continued to be the power of attorney holder of the donees, he could not file a suit in his individual capacity as if he is in possession of the suit property. Ext.A8 is the gift deed dated 23.9.1991 executed by the appellant in favour of his wife and children in respect of the entire suit property wherein it is stated that he has divested himself of all his right over the suit property but would continue to be power of attorney holder of the donees through out his life time and would manage the suit property. It is true that the suit is not brought up on behalf of donees under Ext.A8 and instead, appellant has filed the suit on his own. Ext.A8 if accepted conferred power on the appellant to manage the suit property and for the said purpose be in possession thereof though on behalf of his wife and children. Therefore it was within his power to bring a suit to protect the possession which he claimed, he is holding on behalf of the donees, his wife and children. Mere fact that in the cause title, it is not stated that that the suit is brought up on behalf of his wife and children in my view does not affect maintainability of the suit. 6. I shall come to the question whether appellant is in exclusive possession of the suit property and whether he could claim a decree for injunction against the respondents. Ext.A3 is copy of registered patta deed executed between appellant and one Mohammad Haji on 15.1.1975 as per which it is alleged that the suit property was leased to the said Mohammad Haji. SA No.335/1999 7 Ext.A4 is copy of order dated 2.7.1968 passed by the Karani on an application preferred by Misbah directing appellant to partition the suit property between himself and Misbah. Appellant being aggrieved by that order filed Writ Petition in this Court and as per Ext.A5, judgment dated 17.12.1970 this Court held that Karani has no right to direct partition and set aside Ext.A4. Appellant has produced Exts.A6 and A7, copy of the extract of land register and certified copy of survey sketch in respect of the entire suit property wherein appellant is shown as the owner. On the side of the respondents, they claimed that following Ext.B3 there was an oral partition between appellant and their predecessor-in- interest, Misbah in the year 1971 as per which northern half of the suit property was allotted to their predecessor-in interest while appellant retained the southern half. In the meantime alleging that Misbah is attempting to trespass into the suit property and claiming that he unauthorisedly collected income from the property from October, 1968 to April, 1970 appellant filed O.S.No.35 of 1970 for prohibitory injunction and damages. In the meantime Misbah died. According to the appellant, he did not pursue O.S.No.35 of 1970 and that suit was dismissed as per Ext.B6, judgment dated 8.10.1971. Respondents contended that after the death of Misbah they partitioned the northern half of the property allotted to Misbah in the oral partition of 1971. Ext.B2 is copy of partition deed dated 25.9.1991 executed among the respondents further dividing the northern half of the suit property between them. Ext.B4 is the extract of land register produced by the respondents. SA No.335/1999 8 7. According to the learned counsel Ext.B6 alone would show that there was ouster of Misbah from the suit property. It is in that premises that learned counsel has placed reliance on the decisions referred supra. In Avanthika & another v. Sita Bai & others referred supra, one of the co- owners wanted to recover possession of the suit property from the defendant co- owner and it was held that the defendant co-owner is entitled to be in possession remedy of the suing co-owner being to sue for partition. That decision was referred to and distinguished in Madhavan Nambiar v. Narayanan Nair, referred supra where the question considered was whether a co-owner in exclusive possession could seek injunction against another co- owner. In paragraph No.4 of the judgment learned Judge distinguished the decision in Avanthika & another v. Sita Bai & others and held that the decision does not establish that a co-owner in actual possession is entitled to an injunction as against the other co-owner who is out of possession. In that case, this Court refused to grant injunction against co-owner. Learned counsel for appellant attempted to draw a distinction that in Madhavan Nambiar v. Narayanan Nair, plaintiff had admitted status of the defendant as a co-owner unlike this case where appellant does not admit status of the respondents as co- owners. In Lingaraj Misra & others v. Bhubaneswar Mohapatra & others, referred supra in paragraph No.11 it was held that in suits between co-owners an injunction to protect possession of the suing co-owner could be granted in case of proof of ouster. It is contended by learned counsel that it is only for the SA No.335/1999 9 reason of Ext.B6, judgment in O.S.No.35 of 1970 that learned District Judge found that Misbah has been joint possession taking profits of the suit property and hence appellant is not entitled to get injunction. 8. Ouster is a positive act whereby a co-owner in possession excludes the other co-owner who is in joint possession. It is settled position of law that any length of possession by one co-owner by itself is not sufficient to prove ouster. Even mere non-participation in the profits by one of the co- owners is not sufficient to prove ouster. Ouster should be proved by a positive act asserting hostile title. Ext.B6 in my view is not sufficient to hold that Misbah, predecessor-in-interest of the respondents who , I found was a co- owner along with appellant, has been ousted from possession. On the other hand, Ext.B6 would show that appellant apprehended that Misbah might enter the property and participate in sharing the income therefrom as is indicated by the fact that appellant sued for injunction against Misbah. The claim for recovery of damages shows that Misbah had collected income from the property which as a co-owner he was entitled. Therefore, Ext.B6 cannot be taken as indicating ouster of Misbah. 9. True, oral partition pleaded by the respondents between appellant and Misbah in the year 1971 was found against by the courts below. Ext.B2, true was not accepted by the courts below to prove partition but indicates that even as on 25.9.1991 respondents were asserting their right over the northern half of the suit property. Learned District Judge found that going SA No.335/1999 10 by Exts.A8 and B2 which are seen executed within a short interval of three days it would appear that both sides were attempting to create documents in support of their contentions. Even if Ext.B2 is not accepted or acted upon, that document can be looked into for ascertaining intention of the respondents in that, Ext.B2 would show that respondents asserted their ownership of the northern half of the suit property. 10. So far as Ext.A3 is concerned, there is no evidence to show that at any point of time Mohammad Haji, the tenant mentioned therein was in possession of the property. At any rate, it is to be noted that the said document is executed on 15.7.1975 ie., after the alleged oral partition claimed by the respondents. The mere fact that in Exts.A6 and A7 appellant has been shown to be the owner of the entire property cannot in any way affect the right conferred on Misbah as per Ext.B3 and the right which devolved on respondents consequent to his death. Therefore the contention that appellant has ousted the respondents and their predecessor-in-interest from possession of the property cannot be accepted. 11. Then the question is whether in such situation even if it is assumed that the appellant is in exclusive possession of the suit property he is entitled to the injunction as prayed for. Evey co-owner is as good a full owner in respect of every inch of the property. Apex Court in T.Lakshmipathi v. P.Nithyananda Reddy (AIR 2003 SC 2427) considered the issue in paragraph No.24 of the judgment. There, it was held that a co-owner who is in SA No.335/1999 11 possession of the property as per an arrangement express or implied with the other co-owners can protect his possession against other co-owners. There is no case or evidence that appellant is in exclusive possession of the property under any arrangement with the respondents, express or implied. Therefore he cannot claim injunction against the respondents. I answer the substantial question of law framed. in that regard, accordingly. In view of my above finding this Second Appeal has to fail and it is accordingly dismissed without any order as to costs. C.M.P.No.1777 of 1999 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.335/1999 12 Thomas P.Joseph, J. S.A.No.335 of 1999 JUDGMENT 5th November, 2009.