IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 SA.No. 503 of 1995() -------------------- AS.97/1992 of DISTRICT COURT, PALAKKAD OS.321/1985 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------- 1. NATARAJA KOUNDER, S/o. NACHIMUTHU KOUNDER NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK, (WILL EXECUTOR). * SINCE DIED 2. PAZHANISWAMY KOUNDER, S/o. NATARAJA KOUNDER, NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK. * SINCE DIED 3. SABARIGIRI, AGED 17 YEARS S/o. LATE RAJAGOPALA KOUNDER (MINOR) (BY GUARDIAN WILL EXECUTOR 1st APPELLANT NATARAJA KOUNDER ) *4. KALAISELVI, W/o. PAZHANISWAMY KOUNDER NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK, PALAKKAD *5. MUTHURAJ, S/o. PAZHANISWAMY KOUNDER AGED 9 YEARS, NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK, PALAKKAD (ADDITIONAL APPELLANTS 4 AND 5 IMPLEADED AND ADDL. APPELLANT 4 and 5 AND 3rd RESPONDENT ARE RECORDED AS LRs OF DECEASED FIRST APPELLANT AS PER ORDER DATED 08-01-2007 IN IA 2515 OF 2006) BY ADV. SRI.SAIGI JACOB PALATTY SRI.SABU GEORGE RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. RUGMANI, W/o. LATE MANI ALIAS KUMARAVELU KOUNDER, NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK 2. BHOOPATHY, S/o. ARUMUGHA KANDHASWAMY KOUNDER, CHENNIYUR, AZHAGIRICHETTI PALAYAM POLLACHI TALUK, NOW RESIDING AT C/o. 1st DEFENDANT 3. MAJOR GANESAN , S/o. MAYILSWAMY KOUNDER NEELAMKACHI, KOZHIPATHY VILLAGE CHITTUR TALUK ADV. SRI.T.R.RAVI FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- S.A.No.503 of 1995 --------------------------------------- Dated this 22nd day of September 2009 JUDGMENT This second appeal is brought from judgment and decree of learned District Judge, Palakkad in A.S.No.97 of 1992 confirming judgment and decree of learned Munsiff, Chittor in O.S.No.321 of 1985 whereby the suit for decree of prohibitory injunction was dismissed. 2. Appellant No.1 claimed to be in possession of the suit property in his capacity as executor, for and on behalf of appellant Nos. 2 and 3 and respondent No.3, legatees under a Will, Ext.A2 said to have been executed by Kumarvel Kounter on 06-09-1985. Ext.A3 is the tamil version of Ext.A2. Appellants and respondent No.3 claimed that on the death of Kumarvel Kounter on 27-09-1985 they got possession of the suit property in terms of Ext.A2 and while continuing in possession respondents attempted to trespass into the suit property. Hence the suit for injunction against trespass. Respondent No.1 is the wife of late Kumarvel Kounter. Respondent No.2 is her cousin and an assignee of a portion of the suit property from respondent No.1 as per Ext.B6. They denied that any such Will was executed by Kumarvel Kounter and claimed that there was no possibility or occasion for Kumarvel Kounter to execute Ext.A2. They claimed that the Will is fraudulently created to divest respondent No.1 of her right to succeed to the estate of her deceased husband. The further contention S.A.No.503 of 1995 2 advanced by respondents is that at any rate Kumarvel Kounter was not in sound disposing state of mind at the time the Will is said to have been executed. Consequent to the contention raised by the respondents in the written statement appellants amended the plaint to include a prayer for declaration of title based on the disputed Will and also paid court fee under section 25(d) of Court Fees Act. However, the prayer for declaration was later deleted at the instance of appellants and as it now stands, suit is merely for a decree for prohibitory injunction on the strength of possession of disputed properties claimed by appellants as per Ext.A2, the disputed Will. Appellant No.1 gave evidence as PW1. PWs.2 and 3 are examined to prove the alleged execution and attestation of Ext.A2. PWs.4 to 6 are examined to prove possession claimed by the appellants. PW7 is a friend and medical consultant of Kumarvel Kounter, examined to prove that the latter was in a sound disposing state of mind at the time Ext.A2 was executed. Respondent No.1 gave evidence as DW1. DW2 is respondent No.2 who claimed right, title, interest and possession of a portion of the suit property as per Ext.B6 dated 16-10-1985. To dispel the contention raised by the appellants that Kumarvel Kounter was not good terms with respondent No.1 (his wife), respondents produced Exts.B1 to B5 and B7 to B49, medical bills and prescriptions to show that during the time of alleged execution of the Will Kumarvel S.A.No.503 of 1995 3 Kounter was undergoing treatment and being looking after by respondent No.1. Learned Munsiff after consideration of the evidence found that due execution of Ext.A2 is not proved and that appellants were not able to remove the cloud of suspicious circumstance surrounding the alleged execution and attestation of Ext.A2. Learned Munsiff did not accept case of appellants and respondent No.3 regarding possession of the suit properties and dismissed the suit. First appellate court has confirmed the findings entered by the learned Munsiff. Hence the second appeal. The following substantial questions of law are framed for a decision. (i) When on the facts and evidence the finding of the courts below that due execution and attestation of Ext.A2, the Will is legally correct? (ii) Whether the court below is legally correct in holding that appellants have no possession of the suit property and refusing decree for prohibitory injunction? Learned counsel for appellants stressing on the substantial question of law No.1 argued that none of the circumstance relied on by respondent Nos.1 and 2 can be taken as suspicious sufficient to cause doubt on the due execution and attestation of Ext.A2. Learned counsel also contends that first appellate court having found from the evidence of PWs.2 and 3 that the signature in Ext.A2 is that of late Kumarvel Kounter, went wrong in holding that due execution and attestation of Ext.A2 are not proved. According to the learned counsel the very fact S.A.No.503 of 1995 4 that Ext.B6 was executed in respect of a portion of the suit properties in favour of respondent No.2 immediately after the death of Kumarvel Kounter indicated that respondent No.1 was aware of the existence of the Will. Learned counsel also contended that evidence of PW7 would show that deceased Kumarvel Kounter was in sound disposing state of mind and health on 06-09-1985 when the Will was executed. According to learned counsel, there is no reason to disbelieve the evidence of PWs.1 to 7 and the evidence revealed that appellants are in possession of the suit property. In response learned senior counsel for respondent Nos.1 and 2 contends that the issue regarding the genuineness of Will is not required to be settled in this case since inspite of respondent Nos.1 and 2 denying execution of the Will and, in spite of a declaration of title being incorporated in the plaint by amendment, that prayer has been deleted by subsequent amendment, and there is no payment of court fee under section 27(a) of the Courts Fee Act for enquiry into the title claimed by the appellants. Enquiry into title is not warranted in this case since appellants now only seek relief of prohibitory injunction based on the possession claimed by them. When complicated questions of law and fact regarding title is involved, that should be settled in a comprehensive suit on title. Learned senior counsel placed reliance on decision of the Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy and Others (2008 S.A.No.503 of 1995 5 (4)SCC 594). It is also contended by learned counsel that apart from the disputed Will, appellants have not produced any document to prove possession of suit properties claimed by them. On the other hand there is sufficient evidence on record to show that on the death of Kumarvel Kounter, possession of suit properties passed on to respondent No.1 and in exercise of her proprietary title and possession she has executed Ext.B6 in favour of respondent No.2. Thus, respondent No.2 is in possession of the property covered by Ext.B6. Learned senior counsel points out that though in trial court respondent No.1 was appointed as a party receiver she was removed as such on an objection filed by appellants and the official receiver was appointed to take possession of the suit properties and after disposal of the appeal by first appellate court, the properties have been put back in the possession of respondents. 3. Question raised is whether due execution and attestation of Ext.A2 is proved and whether, appellants were able to remove the circumstance which according to respondent Nos.1and 2 are suspicious and surrounded due execution and attestation of the Will. Since prayer for declaration of title has been deleted and there is no payment of court fee under 27(a) of the Court Fees Act an enquiry into title is not required or contemplated in this case. The Supreme court in Anathula Sudhakar Vs. P. Buchi Reddy and Others (2008(4)SCC 594) has S.A.No.503 of 1995 6 stated the circumstance in which the enquiry into title is warranted in a suit for injunction based on possession. It is held in para 21, 1. Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. 2. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. 3. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for S.A.No.503 of 1995 7 declaration of title, instead of deciding the issue in a suit for a mere injunction. 4. Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. (emphasis supplied) As per the above decision, prayer for injunction has to be decided with reference to finding on possession. A finding on title when it involves complicated questions of law and fact is not warranted in a simple suit for injunction based on possession. In such circumstance the proper remedy is to relegate the parties to a comprehensive suit for declaration of title and appropriate consequential reliefs. For reasons above stated, and in the light of decision referred supra the issue regarding the genuineness of Ext.A2 is not required to be decided in this case. The finding of the courts below on the genuineness of Ext.A2 S.A.No.503 of 1995 8 is set aside and that issue is left open for decision in a comprehensive suit. 4. What remained is whether decree for prohibitory injunction as if appellants are in possession of the suit property can be granted. I stated that it is only based on the recital in Ext.A2 that appellants claimed to be in possession of the suit properties. As the properties involved are comparatively large extent of agricultural lands, it is not necessary, nor warranted to prove title to establish possession. Apart from examining witnesses concerning execution of the Will. There is no document except Ext.A2 which I have already adverted to and cannot be considered in this proceeding, produced by the appellants to prove possession of the suit properties claimed by them. On the other hand there is evidence to show that as on the date of suit respondents were in possession of the suit properties. Courts below found that respondent Nos.1 and 2 are in possession of the suit properties. The Official Receiver has put the respondents back in possession of the suit properties. Before the Official Receiver, respondent No.1 was in possession of the property as party receiver. The finding of the courts below that respondents are in possession of the suit properties rest on proper appreciation of evidence and as such no substantial question of law arises from that finding. Courts below have rightly refused to grant decree for prohibitory injunction in favour of appellants. S.A.No.503 of 1995 9 5. In the light of my above findings it is not necessary to answer the substantial question of law raised regarding genuineness of Ext.A2 in the second appeal. In the result, finding entered by courts below as to the genuineness of Ext.A2 is set aside and the issue left open for consideration of appropriate proceedings. In other respects, the second appeal fails and it is dismissed. No order as to cost. THOMAS P JOSEPH, JUDGE Sbna/