IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 SA.No. 566 of 1998(A) --------------------- AS.31/1996 of ADL.SUB COURT, THALASSERY OS.311/1994 of PRL.M.C.,KANNUR .................... APPELLANT(S): -------------------- POCKEN RAMESHAN, S/O SANKARAN, AGED 33 YEARS, L.I.C AGENT, RESIDING AT POCKEN HOUSE, AZHIKODE AMSOM, DESOM, KANNUR 9. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): ------------------------ 1. POCKEN NARAYANAN, S/O SANKARAN, AGED 38 YEARS, WEAVER, RESIDING AT POCKEN HOUSE, AZHIKODE THERU, KANNUR 9. 2. SMT. NARAYANI, W/O POCKEN NARAYANAN, AGED 34 YEARS, NO OCCUPATION. RESIDING AT POCKEN HOUSE, AZHIKODE THERU, KANNUR 9. 3. POCKEN DEVAKI, D/O SANKARAN, AGED 41 YEARS, NO OCCUPATION. RESIDING AT POCKEN HOUSE, AZHIKODE THERU, KANNUR 9. ADV. SRI.P.M.PAREETH FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.566 OF 1998 -------------------------------- Dated this the 23rd day of September 2010 JUDGMENT Plaintiff in a suit for mandatory injunction is the appellant. Her suit claim was decreed by the trial court, but, reversed in appeal by the lower appellate court. Challenge in the Second Appeal is against the decision rendered by the lower appellate court nonsuiting the plaintiff. 2. plaintiff and defendants 1 and 3 are the children of one Paru. Second defendant is the wife of the first defendant. All of them are in occupation of the building scheduled in the plaint which originally belonged to Paru. Paru had executed Ext.A1 sale deed assigning her title over the plaint property in favour of the plaintiff. Continuous occupation of the defendants in the building after Ext.A1 deed was on the basis of permission granted by the plaintiff but it was withdrawn subsequently in view of the nuisance and mischief committed by them, preventing the plaintiff from having peaceful occupation over the building, was the case canvassed to seek a decree of mandatory injunction to remove the defendants from the building. The defendants, in their written statement, disputing Ext.A1 sale deed as a sham document, contended that their occupation over the building with S.A No.566 OF 1998 - 2 - Paru was as of right and the plaintiff is not entitled to get the decree applied for. The trial court, after adjudication of the issues arising on the pleadings of the parties, with reference to the materials tendered, which included the evidence of plaintiff as PW1 and that of the first defendant as DW1 for the defendants and Ext.A1 to Ext.A9 tendered by the plaintiff as documentary evidence, concluded that since the plaintiff is having title over the plaint property, she is entitled to the decree of mandatory injunction directing the vacation or removal of the defendants from the plaint building. The defendants preferred an appeal challenging the decree of the trial court. The lower appellate court, after reappreciating the materials tendered by both sides and considering the legal principles applicable in the grant of mandatory injunction, with reference to the facts and circumstances involved, reached the conclusion that the plaintiff was not entitled seek eviction of the defendants by a decree of mandatory injunction. In that view of the matter, the decree granted by the trial court was reversed by the lower appellate court and the suit was dismissed. Aggrieved by that decision, the plaintiff has preferred this appeal. S.A No.566 OF 1998 - 3 - 3. I heard the counsel on both sides. The lower appellate court applied the principles of equity in judging the merit of the decree of mandatory injunction granted in favour of the plaintiff when no such defense was canvassed in the pleadings by the defendants is the submission of the learned counsel for the appellant/plaintiff to contend that the interference with the decree passed by the trial court by the court below was not proper and justifiable under law. It is further contended that the title of the plaintiff having been established by the materials tendered, she was entitled to seek a decree of mandatory injunction as the occupation of the building by the defendants who had no right to continue such occupation was unauthorised and not legal when permission had been withdrawn by the plaintiff. So, in the given facts and circumstances involved in the case, according to the learned counsel, the relief canvassed by the plaintiff in the suit for removal or vacating of the defendants by way of a decree of mandatory injunction was not liable to be interfered with on technical grounds based on the principles of equity. The net result which would follow, if the decree rendered by the appellate court is allowed to stand, according to the counsel, is to drive the plaintiff for yet another round of litigation against the defendants even after she had established and proved her title over the S.A No.566 OF 1998 - 4 - property. Though I find some force in the submissions made by the counsel for the appellant that the parties will be driven to another round of litigation for giving a quietus to the contorversy prevailing between them over the occupation, which all of them have at present over the building, I find that the lower appellate court was fully justified in holding that the remedy of the plaintiff for removal or vacating of the defendants from the building was not by way of a decree of mandatory injunction. In the facts and circumstances of the case, whatever be the merit of the defense canvassed by them in impeaching Ext.A1 deed executed by late Paru in favour of the plaintiff, the plaintiff and also atleast defendants 1 and 2, being the children of Paru, admittedly, have been in occupation of the building quite for some time. It is also brought to my notice that during the pendency of the suit, at least before the trial court, Paru was also an occupant in the building. So, the mother with the children and also with the daughter-in-law (second defendant) continued occupation over the building even after execution of Ext.A1 deed in favour of the plaintiff. The case of the plaintiff that after execution of Ext.A1 deed, the occupation of the defendants was on the basis of permission given by her and that was later withdrawn cannot be given any consideration or merit when they had been in occupation of the building as of S.A No.566 OF 1998 - 5 - right. Defendants 1 and 3 are the children of Paru and second defendant, her daughter-in-law. Defendants 1 and 3 have contended that they were born and brought up in that building. When that be so, immediately on execution of Ext.A1 sale deed by the mother in favour of one of the children (plaintiff) in the absence of proof showing that the continuance of occupation by the defendants was on the basis of some agreement or concession from the plaintiff, she is incompetent to claim a decree of mandatory injunction for evicting the other occupants from the building. Her remedy, no doubt, is to claim eviction of the defendants on the basis of her title. Different principles may apply when recovery or eviction is sought on the basis of title which can never be considered when a decree is claimed for mandatory injunction. The lower appellate court correctly and rightly held that in granting the relief of mandatory injunction, which is purely discretionary, the principles of equity, taking into consideration the facts involved, have to be given primary significance. Further more, the plaintiff must establish the breach of the obligation cast upon the defendants to claim such a decree of mandatory injunction as enunciated under Section 39 of the Specific Reliefs Act. That being so, in the given facts of the case, the finding entered by the lower appellate court that the plaintiff S.A No.566 OF 1998 - 6 - is not entitled to the decree of mandatory injunction against her brother and sister and also sister-in-law who have been in continuous occupation of the building along with her, from even long prior to the execution of Ext.A1 sale deed in her favour, is not only just and reasonable, but proper and correct. Reversal of the decree passed by the trial court and non suiting of the plaintiff by dismissing her suit under the impugned judgment rendered by the lower appellate court in the given facts of the case is only to be confirmed. But, I make it clear that it is open to the appellant to seek appropriate remedies as provided by law on the basis of her title to get removal or eviction of the defendants from the plaint schedule building. Subject to the above observations, the appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv