IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 RSA.No. 42 of 2008 ---------------------- AS.130/2006 of DISTRICT COURT, PALAKKAD OS.214/2004 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/DEFENDANT: ---------------------------- T.CHENTHAMARAKSHAN, S/O.THEETHUNNI, AGED 65 YEARS, PENSIONER, RESIDING AT ELAYAMKURUMBATHU HOUSE, KAVUNGAL KALAM, POPULLY P.O., PALAKKAD DISTRICT. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENTS: RESPONDENT/PLAINTIFF: --------------------------------------------- V.K.PRABHAKARA MENON, S/O.LATE DEVAKI AMMAL AGED 77 YEARS, RESIDING AT KRISHNA NIVAS, OLD BAZAAR, KOLLENKODE P.O., CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.HARIHARAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ---------------------------------------------------- R.S.A. No 42 of 2008 --------------------------------------------------- Dated this the 27th May 2008 JUDGMENT The defeated defendant in O.S.No 214 of 2004 on the file of the Munsiff's Court, Palakkad is the appellant in this Second Appeal he having lost his case in the first appellate court as well. The respondent herein filed O.S.No 214 of 2004 aforesaid for a decree of permanent prohibitory injunction inter alia, on the allegation that he purchased the schedule properties from the defendant under Ext a1 assignment deed dated 16.10.2002; that after execution of the sale deed in his favour he is in actual physical possession and enjoyment of the schedule properties, that the defendant who is residing away from the schedule properties had approached the plaintiff offering to purchase the property back and that was not agreed to by the plaintiff; that the defendant on 7.3.2004 while harvesting was in progress made an attempt to trespass into the schedule properties which was however prevented by the timely intervention of the plaintiff and further attempts of forcible trespass into the schedule property by the defendant has to be restrained by a decree of permanent prohibitory injunction. 2. The defendant resisted the suit contending that Ext A1 was executed RSA 42/08 2 by him to meet the marriage expenses of one of his daughters borrowing an amount of Rs 60,000/- from the plaintiff and the amount was advanced on condition that as security for repayment of the amount he should execute a registered assignment deed with respect to the schedule property in favour of the plaintiff promising that he would reconvey the property to the defendant as and when the amount borrowed together with interest thereon at 12% per annum is repaid and it was accordingly that Ext A1 document was executed in his favour; that the defendant's son Rajesh also is having half right in the schedule properties, the docuemnt was prepared by the plaintiff himself and the defendant did not peruse the document before executing or registering the same; that the document contains several mistakes including the taluk in which the property is situated; that in the title deed of the defendant viz., partition deed No 2687 of 1974 of Sub Registry Office, Palakkad, the properties included in C schedule to the said partition deed was set apart to the share of the defendant and on a perusal thereof it can be seen that the properties are situated in Palakkad taluk whereas in Ext A1 executed by the plaintiff the properties are mentioned as in Chittur taluk; that the property obtained by the defendant under partition deed is only 2.85 RSA 42/08 3 acres whereas the extent of property covered by the document in favour of the plaintiff is 3.07 acres, that the defendant was ready and willing to repay the amount with interest and get the reconveyance executed but the plaintiff has not heeded to the request of the defendant and he was cheating the defendant; that the defendant has not made any attempt to trespass into the schedule property or obstruct the agricultural operations and that the value of the schedule property is more than Rs 3 lakhs; that the plaintiff has not obtained any right or title over the schedule properties though he is in possession of the properties as the defendant had permitted him to do agricultural operations thereon; that as the properties are situated in Chittur taluk Munsiff's Court, Palakkad had no territorial jurisdiction to try the suit, that the suit is false and vexatious and there is no cause of action for the suit and the suit is to be dismissed. 3. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of the oral evidence of P.W.1 and D.W.1 and documentary evidence of Exts. A1 to A3, decreed the suit granting prohibitory injunction as prayed for. The defendant who is the appellant before RSA 42/08 4 me preferred A.S. No 130 of 2006 before the District Court, Palakkad and that was dismissed concurring with the decree of permanent prohibitory injunction granted by the trial court in favour of the respondent-plaintiff. Hence this R.S.A by the defendant. 4. It is contended before me by the learned counsel for the appellant that the concurrent verdicts given by the courts below are untenable and without jurisdiction in as far as the Munsiff's Court, Palakkad had no jurisdiction to try the suit as the property is in Polpully village in Chittur taluk which falls within the jurisdiction of the Munsiff's Court, Chittur and the Munsiff's Court, Palakkad had absolutely no jurisdiction to try the suit. The contention regarding the jurisdiction was raised for the first time before the first appellate court and the first appellate court has found that there is absolutely no evidence to show that the schedule properties are within the jurisdiction of Chittur Munsiff's Court especially when part of Polpully village falls within the jurisdiction of Palakkad Munsiff's Court as well and the property is however shown only as situated within Palakkad taluk. As per the description in the plaint schedule, the schedule properties are situated within Polpully village within Palakkad taluk and Chittur sub district. The contention of the appellant is that in the RSA 42/08 5 partition deed whereunder he has acquired the property included under C schedule therein the property is shown as comprised in Chittur taluk whereas in Ext A1 property, is shown as comprised in Palakkad taluk. The partition deed No 2687 of 1974 whereunder the defendant obtained the property included in C schedule is however not produced. Thus as matters stand, there is no material to show that the schedule properties fall within the territorial jurisdiction of Chittur Munsiff's Court and not within the territorial jurisdiction of Munsiff's Court, Palakkad. In these circumstances the contention raised for the first time before the first appellate court was rightly rejected. 5. The next contention that is advanced before me by the learned counsel for the appellant is that Ext A1 was being executed by way of security of a loan transaction and it was not intended to take effect as a sale deed. However the nomenclature of Ext A1 is that of an outright assignment by way of sale and it is the admitted case that the plaintiff is in possession of the schedule property. When the plaintiff is admittedly in possession of the property the defendant cannot except through due process of law try to take possession thereof. When the title deed stands in the name of the RSA 42/08 6 plaintiff and it is admitted also that the plaintiff-respondent is in possession of the schedule properties, the courts below have rightly concluded that he is entitled to permanent prohibitory injunction restraining the appellant-defendant from trespassing into the plaint schedule property. The concurrent decree so passed does not deserve to be interfered with for that reason as well. No further contention was advanced before me by the learned counsel for the appellant. Thus there is no merit in the Second Appeal and there is no question of law and much less any substantial question of law to be considered by this court. In this result, I dismiss this Second Appeal in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 27/05/08 en [true copy]