IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 SA.No. 819 of 1995(E) --------------------- AS.8/1990 of PRINCIPAL SUB COURT,N.PARAVUR OS.802/1986 of MUNSIFF COURT, N.PARAVUR .................... Appellants/RESPONDENTS/PLAINTIFFS: ------------------------------------------- 1. P.GOPALAKRISHNA PILLAI, S/O.KARTHYANI AMMA, RESIDING AT GOPASREE, KORAKKATT THERUVU, PARAVUR PARAVOOTHARA MURI (DIED ADDL.APPELLANTS 2 TO 8 IMPLEADED) ADDL.APPELLANTS 2 TO 8 IMPLEADED AS LR’S OF DECEASED SOLE APPELLANT AS PER ORDER DT.10/9/07 ON IA 1584/07 2. P.SUDHAMANI, D/O.LATE GOPALAKRISHNA PILLAI, AGED 44 YEARS, KARTHIKAVILAS, MANNAM (PO), NORTH PARAVUR. 3. G.PADMANABHA PILLAI, AGED 69 YEARS, Q.14, GREEN PARADISE, VISHAL NAGAR, RAIPUR. 4. SREEDHARAN PILLAI, AGED 65 YEARS, VADAKKEPUTHAN VEETTIL, MANGOOR, NADRIPHULAM (PO) THRISSUR. 5. VINODHINI GOPALAKRISHNA PILLAI, W/O.GOPALAKRISHNA PILLAI, GOPASREE, KORAKKATTU STREET, KANNANKULANGARA, N.PARAVUR. 6. G.SATHYAPAL, AGED 42 YEARS, S/O.LATE GOPALAKRISHNA PILLAI, 43/7 VISAA, CHS, SECTOR017, AIROLI, NEW MUMBAI, 7. SUJATHA SOMANATH, AGED 40 YEARS, C/O.LATE GOPALAKRISHNA PILLAI, 2/8, ASHTALEKSHMI APARTMENTS, 7TH MAIN ROAD, KASTHURBAI NAGAR, ADAYAR, CHENNAI-600020. 8. SATHISH CHANDRAN, AGED 39 YEARS, S/O.LATE GOPALAKRISHNA PILLAI, BLK-484, FLAT 01-54, CHOA CHU KONG AVENUE-5, SINGAPORE. BY ADV. SMT.M.A.ZOHRA RESPONDENTS/APPELLANTS/DEFENDANTS: ------------------------------------------------ 1. SIVANANDA MENON, MAYABHAVAN, ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVOOR. 2. ANANDAVALLI AMMA, W/O.SIVANANDA MENON, ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVOOR. 3. THARAKESWARAN, S/O.SIVANANDA MENON,ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVOOR. SUPPLEMENTAL 4TH RESPONDENT IMPLEADED AS PER ORDER DT.20/7/07 ON IA 851/07 4. N.SOMANATHAN, S/O.LATE SARASWATHI AMMA, GOPASREE, KORAKKAT THERUVU, PRESENTLY RESIDING AT ERAVOOR HOUSE, KAITHARAM.P.O., NORTH PARAVUR, ERNAKULAM DISTRICT R1 BY ADV.V.DEVAN, ADV.DINESH R.SHENOY, ADV.V.P.K.PANICKER & ADV.B.JAYASANKAR R2 & R3 by Adv. SRI.T.K.VENUGOPALAN Adv.P.Viswanathan R4 BY ADV. KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANAKANNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO.819 OF 1995 ------------------------------------------ Dated 7th April 2008 J U D G M E N T First plaintiff in O.S.802/1986 on the file of Munsiff court, North Paravur is the appellant. Fourth respondent is the second plaintiff and respondents 1 to 3 are the defendants. Plaint schedule property admittedly originally belonged to family of Karthiyayani Amma and others. Under Ext.A1 partition deed of 1111 M.E properties were divided. Plaint schedule property was allotted to the share of Karthiyayani Amma and her then existing three children, appellant, deceased Saraswathi, deceased Padmavathy Amma were allotted as third schedule. Subsequently second respondent, Padmanabhan Pilla and Sreedharan Pilla were also born to Karthiyayani Amma. Second respondent instituted O.S.446/1966 for separation of her 3/9 shares. Under Ext.A2 preliminary decree 3/9 shares were directed to be separated in favour of second respondent. Under Ext.A4 final decree that share was separated and the red shaded plot SA 819/95 2 marked in the commissioner’s plan was allotted to the share of second respondent. Second respondent took delivery of the property by filing execution petition and delivery was recorded under Ext.A6. For the mesne profits awarded under Ext.A4 final decree, second respondent filed another execution petition which was subsequently closed, as the other co-owners who are liable to pay share of profits deposited mesne profits when the execution petition was pending. Contending that share of second respondent was separated under Ext.A4 final decree and her husband first respondent and son third respondent have no right in the remaining property covered under Ext.A1 separated towards the share of Karthiyayani Amma and children, after Ext.A4 final decree, suit was filed claiming permanent prohibitory injunction. Though suit was filed by the appellant along with fourth respondent second plaintiff who is the only son and legal heir of deceased Saraswathi, daughter of Karthiyayani Amma, it was contended that plaint schedule property also belong to other two brothers Padmanabhan Pilla and Sreedharan Pilla who executed power of attorney in favour of the appellant and respondents attempted to trespass into plaint schedule property disturbing their SA 819/95 3 peaceful possession. Respondents resisted the suit by filing separate written statements. Husband first respondent contended that the whole property was never in the possession of the appellant or his brothers and instead has been in his possession throughout. It was contended that the entire property having an extent of 1 acre 71 cents, including the property obtained by second respondent under Ext.A4 final decree and Ext.A6 delivery receipt, has been in his possession from 1968 onwards and the right of the appellants and others is lost by adverse possession and limitation. It was also contended that though Ext.A2 preliminary decree and A4 final decree and Ext.A6 delivery report were in existence, the second respondent did not obtain possession of the property and the property continued to be in the possession of the first respondent and plaintiffs are not entitled to the decree sought for. Second respondent in her written statement contended that though she obtained her share separated under Ext.A4 final decree, she did not obtain possession of the property as possession was with first respondent and as the plaintiffs are not in possession they are not entitled to the decree for injunction. Third respondent in his written statement SA 819/95 4 adopted the contentions raised by second respondent. 2. Learned Munsiff on the evidence of Pws.1 to 4, Dws.1 to 5, Ext.A1 to A15 and B1 to B24, granted a decree in favour of plaintiffs holding that under Ext.A2 preliminary decree mesne profit was also sought for by the second respondent and as per Ext.A4 final decree mesne profits was granted and second respondent instituted execution petition which was closed only on payment of the share of profits by others and respondents cannot be heard to contend that first respondent was in possession of the property. Learned Munsiff also found that in Ext.A6 delivery report first respondent was a witness and hence first respondent cannot be contend that the property was in his possession or that his wife second respondent did not obtain possession of the property. Learned Munsiff also found that in the light of the evidence on record respondents could not be in possession of the property and second respondent in possession and could claim right only over the property covered under Ext.A6 delivery report and other co-owners are in possession of the remaining plaint schedule property as claimed by plaintiffs. A decree for permanent prohibitory injunction was granted against respondents 1 SA 819/95 5 to 3. Respondents 1 to 3 challenged the judgment before Sub court, North Paravur. (Appeal was originally filed before the Additional District Court, North Paravur and was later transferred to Sub court). Learned Sub Judge on re-appreciation of evidence found that though appellants claimed possession of the plaint schedule property as co-owners, evidence show that possession was not with the plaintiffs but with first respondent, though findings of the trial court that property belongs to plaintiffs was upheld. Learned Sub Judge allowed the first appeal and dismissed the suit. It is challenged in second appeal. Though second appeal was filed only by first plaintiff, subsequently second plaintiff was impleaded as fourth respondent. On the death of original appellant his legal heirs were impleaded as additional appellants 2 to 8. Appeal was originally allowed as per judgment dated 18/8/2006. Subsequently R.P.837/2006 was filed by respondents 1 to 3, to review the judgment, producing a registered assignment deed executed by fourth respondent alienating his right in respect of the property, in favour of third respondent with an application filed under Rule 27 of Order XLI of Code of Civil Procedure to receive the same as additional evidence and to review SA 819/95 6 the original judgment contending that by virtue of the sale deed third respondent would be a co-owner. Original judgment was reviewed as per order dated 9/4/2007. Fourth respondent was impleaded thereafter and appeal was reheard. 3. Argument of the learned counsel appearing for the appellants is that in the light of Ext.A2 preliminary decree, Ext.A4 final decree and Ext.A6 delivery report case of the respondents that the entire property was in the possession of the first respondent was rightly rejected by the trial court and first appellate court was not justified in finding that first respondent has been in possession of plaint schedule property. It was argued that it was the first respondent who was examined as PW1 in O.S.446/1986, as evidenced by Ext.A15 deposition of the first respondent, in that suit and if first respondent was in possession of the property his wife would not have filed a suit for partition and separation of her share and even if final decree is passed, she would not have filed an execution petition to take delivery of the property and at any rate, first respondent would not have been a witness to the delivery report and therefore, case of the respondents that first SA 819/95 7 respondent has been in possession of the entire property cannot be accepted. It was also pointed out that, fact that second respondent filed an execution petition for realisation of the mesne profits from the other shares establish that they are in possession of the property and second respondent was not in possession of the property and fact that Ext.A7 execution petition was closed on the plaintiffs and others depositing the share of profits as provided under Ext.A4 final decree and case of the respondents that first respondent is in possession of the property can only be rejected. Learned counsel also argued that as rightly found by the trial court plaintiffs are in possession of the property and first appellate court was not justified in reversing the decree granted by the trial court. It was argued that though respondents produced a sale deed allegedly executed by fourth respondent, it is vitiated and fourth respondent has subsequently instituted a suit to set aside the document and it is pending before the Sub court, North Paravur. Learned counsel also pointed out that though this document was originally filed before the first appellate court, that petition was not pressed and the grounds provided under Rule 27 Order XLI was not SA 819/95 8 satisfied and the respondents are not entitled to make use of that sale deed before this court and even if, third respondent obtained any right under the said document remedy is only to institute a suit and claim separation of his share and is not entitled to trespass into the plaint schedule property and cause obstruction to the peaceful enjoyment of the property by the appellants and other co-owners. Learned counsel appearing for the appellants argued that when second plaintiff asserted that they are in joint possession of the plaint schedule property and as per a registered sale deed executed on 16/12/1989 fourth respondent (second plaintiff) already transferred his right in favour of third respondent and third respondent would step into the shoes of second respondent and as provided under Section 44 of the Transfer of Property Act he is entitled to all the rights of fourth respondent including joint possession and fourth respondent being a co-owner appellant is not entitled to a decree for permanent prohibitory injunction against the other co-owners. It was also argued that first appellate court did not consider I.A.6299 (a)/1993 filed for receiving the said documents as additional evidence and no order is SA 819/95 9 seen passed in that application and the document which came into existence subsequent to disposal of the suit could not have been produced by respondents before the trial court and first appellate court should have accepted the same as additional evidence and as no order was passed in that petition, first respondent produced that document as per I.A.851/2007 and that document is to be received as additional evidence. Learned counsel also argued that as the suit is one for permanent prohibitory injunction, subsequent event is also to be taken note of and when subsequent to the date of the decree third respondent obtained joint possession of the property a decree for injunction cannot be granted against third respondent co-owner and respondents 1 and 2 being parents of third respondent, no decree can be passed against them also. 4. It is seen from the records that I.A.6299 (a)/ 1993 was filed before the first appellate court by respondents 2 and 4 to receive the registered sale deed executed by fourth respondent in favour of third respondent as additional evidence. No order is seen passed, after order dated 30/10/1993 as call on to 2/11/1993. That document was taken back and is produced SA 819/95 10 by first respondent as per I.A.851/2007 to receive it as additional evidence. When a petition to receive the document, which came into existence subsequent to the decree and that too in respect of the disputed property , first appellate court is expected to pass an order either allowing the application or dismissing the application But no order is seen passed in that application. Though appellants contended that the said document is vitiated for various reasons and fourth respondent has already filed a suit to set aside the document, it cannot be said that the said document is not relevant to decide the dispute involved in this appeal. In such circumstances, I.A.851/2007 is allowed and document is received as additional evidence and marked Ext.B25. 5. If the case of the respondents that entire property having an extent of 1.71 acres was in the possession of first respondent is true, it is absolutely clear that his wife second respondent would not have instituted O.S.446/1966 for partition and separation of her share. If her husband is in possession of the property, there is no necessity to separate her share, especially when it was the first respondent who SA 819/95 11 prosecuted that suit and was even examined as the witness on behalf of the second respondent. Ext.A2 preliminary decree shows that second respondent has claimed share of profits from other defendants in the suit who are the appellants herein and the other co-owners, claiming that she has not given her share of profits and income is being taken by other co-owners. Ext.A15 copy of deposition of first respondent in that suit also establish that first respondent has no case that he has been in possession of the property. Instead case was that other co-owners are in the possession. Fact that subsequent to Ext.A4 final decree, whereunder share of profits was also fixed by the court, second respondent filed Ext.A7 execution petition claiming share of profits by sale of the remaining property excluding the property allotted to second respondent under Ext.A4 final decree and taken possession under Ext.A6 delivery report, establish that the property has been in the possession of other co-owners including appellant and not in the possession of her husband, first respondent. In the light of these intrinsic and overwhelming evidence, it could only be found that contention that first respondent has been in possession of the property is SA 819/95 12 false. Instead excluding the property covered under Ext.A6 delivery report, the remaining property has been in the possession of plaintiffs and other co-owners. 6. The trial court appreciated the evidence and rightly found that respondents have no right over the remaining property excluding the share taken delivery of under Ext.A6, and they have no right or title to the said property and are not entitled to trespass into the property. Very fact that the husband, wife and son claimed that first respondent is in possession of the entire property establish that apprehension of trespass alleged by the plaintiff is true. It is in such circumstances, trial court rightly granted a decree for injunction. Question is whether in the facts and evidence first appellate court was justified in reversing the decree. 7. First appellate court reversed the decree based on flimsy grounds. It is absolutely clear that first appellate court did not properly appreciate the evidence and wrongly found that plaintiffs did not establish their possession. First appellate court was not justified in finding possession with first respondent. 8. The crucial question then is what is the SA 819/95 13 consequence of the subsequent event. Under Ext.B25 registered sale deed, third respondent is claiming that he is a co-owner. Respondents 1 and 2 are claiming that being their parents decree for injunction cannot be granted either against third respondent co-owner respondents 1 and 2, his parents. Learned counsel Adv.P.Viswanathan argued that under Section 44 of Transfer of Property Act, a transferee from a co-owner is entitled to step into the shoes of his assignor and claim his rights including joint possession and when plaint itself establish that the assignor of third respondent second plaintiff is in joint possession of the property, under Ext.B25 third respondent is entitled to be in joint possession of the property and a decree for injunction cannot be granted. Learned counsel appearing for appellants argued that what is stated in Ext.B25 is not that right and possession as upheld by the trial court was assigned in favour of third respondent. On the other hand, as against the case pleaded, proved and upheld by the trial court the allegation in Ext.B25 is that entire property is in the possession of the first respondent and fractional share of fourth respondent was assigned by him to the third respondent SA 819/95 14 for a consideration of Rs.500/- providing that third respondent is entitled to claim his share and obtain possession of the property and possession of the property was not handed over thereunder. It was argued that when Ext.B25 does not show that as assignee third respondent obtained joint possession of the property, he cannot claim that he is in joint possession of the property and the suit is to be decided as on the date of the suit and subsequent alienation by one of the plaintiffs will not alter the case and remedy of third respondent could only to seek partition and separation of his share and claim possession and appellants are entitled to the decree for injunction even as against third respondent. 9. The only question then is whether because of the subsequent event of the third respondent purchasing the rights of the second plaintiff-fourth respondent, appellants are not entitled to the decree against third respondent. As rightly canvassed by the learned counsel appearing for the respondents, as provided under Section 44 of Transfer of Property Act, where one of the two or more co-owners of immovable property legally competent in that behalf, transfers his share of the said property or any interest therein, the transferee acquires as to SA 819/95 15 such share or interest so far as is necessary to give effect to the transfer, the transferors has right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same but subject to the conditions and liabilities effecting at the date of the transfer, the share or interest so transferred. When the third respondent purchased the rights of the fourth respondent under Ext.B25, third respondent will step into the shoes of the fourth respondent. Claim in the plaint, which is now upheld is that both plaintiffs have been in possession of the plaint schedule property for and on behalf of other co- owners also. Therefore, by virtue of Section 44 of Transfer of Property Act, third respondent could definitely claim that he is entitled to whatever right available to fourth respondent, at the time of the transfer. But the question is whether by the right conferred under Section 44, third respondent is entitled to claim joint possession along with the appellants. If Ext.B25 showed that fourth respondent conveyed his joint possession thereunder and third respondent obtained possession of the property, definitely by virtue of Section 44 third respondent could claim joint possession SA 819/95 16 of the property. But Ext.B25 shows that while purchasing the property third respondent has no case that fourth respondent was in joint possession of the property. On the other hand, what was asserted by the fourth respondent in Ext.B25 was against what was pleaded in the plaint and was found by the trial court. Assertion made by the fourth respondent in Ext.B25 was that the property was not in his joint possession with other co-owners. On the other hand, possession of the entire property was with first respondent. What was stated in Ext.B25 is that under the document his title to the property is transferred to third respondent providing that third respondent can recover possession from first respondent by instituting a suit. If that be so, it is absolutely clear that under Ext.B25 third respondent cannot claim that he obtained joint possession of the property from the fourth respondent. Instead with open eyes he purchased only the share of fourth respondent including the right to institute a suit for partition and recover the possession of his share. If that be so, on the strength of Ext.B25 respondents are not entitled to unsettle the possession prevailing at the time of institution of the suit. Third respondent is only SA 819/95 17 entitled to claim his share legally due under the document, by instituting a suit for partition. Hence by virtue of Ext.B25 third respondent though a co-owner is not entitled to trespass into the property and claim possession. Appellants are therefore entitled to a decree for injunction against respondents 1 to 3 from forcibly taking possession of the property other than by due process of law. Appeal is allowed. Judgment of the Sub court, North Paravur in A.S.8/1990 is set aside. O.S.802/1986 on the file of Munsiff court, Paravur is decreed as follows. Defendants are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or interfering with the peaceful possession of the plaint schedule property by the legal heirs of deceased first plaintiff who are impleaded as additional appellants in the appeal. Third defendant is entitled to claim separation of his share due under Ext.B25 sale deed, in accordance with law and the decree will not operate as a bar. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 819/95 18 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.819 OF 1995 7th April 2008 ============================