IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 RSA.No. 763 of 2011() --------------------- AS.258/2009 of I ADDL. DISTRICT COURT, PALAKKAD OS.413/2007 of MUNSIFF COURT, CHITTUR .................... APPELLANTS/PLAINTIFFS. ------------------------------------------ 1. PULIMANNAM N.S.S. KARAYOGAM, NO.4107,KOLLENGODE, REPRESENTED BY ITS PRESIDENT,PULIMANNAM,KOLLENGODE, PALAKKAD-678 506. 2. PULIMANNAM N.S.S. KARAYOGAM, NO.4107,KOLLENGODE, REPRESENTED BY ITS SECRETARY,PULIMANNAM,KOLLENGODE, PALAKKAD-678 506. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU RESPONDENT(S): RESPONDENT/DEFENDANT. ------------------------------------ GAYATHRIMEHTA, D/O.RAMAVARAMA THAMBAN, RESIDING AT NO.1, PARK TOWN, BEHIND CHINTHAMANI, TRICHY ROAD, COIMBATORE, TAMILNADU, PIN-641 018. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.763 of 2011 ............................................ DATED THIS THE 21st DAY OF JULY, 2011 JUDGMENT Plaintiff in O.S.413 of 2007 on the file of Munsiff Court, Chittur are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for permanent prohibitory injunction contending that they are in possession of the property having obtained the plaint schedule property under Ext.A1 gift deed executed by Venugopala Varma Raja in 1985 and since then they have been in possession of the property. Respondent resisted the suit contending that appellants are not in possession of the property and Venugopala Varma Raja has no right, and he is a member of the Kovilakam and in any case is a co-owner and therefore appellant is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of Pws 1 and 2 and Exts.A1 to A4 dismissed the suit holding that evidence shows that Venugopala Varma Raja had no exclusive right in the plaint schedule property and even if under Ext.A1, appellants have derived right, respondent would be co-owner and hence a decree RSA 763/2011 2 for injunction cannot be granted against the co-owner. Appellants challenged the judgment before District Court, Palakkad in A.S.258 of 2009. Learned Additional District Judge, on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned senior counsel appearing for the appellants was heard. The argument of the learned counsel is that courts below omitted to take note of the fact that respondents did not mount the box and did not produce any document and there is no contra evidence and in such circumstances, there is no reason for not accepting the evidence of Pws 1 and 2 which establish that appellants are in possession of the plaint schedule property. Learned counsel also argued that in a suit for injunction, it is not necessary to go into the question of title and when the final decree was not produced, first appellate court was not justified in holding that the plaint schedule property was alloted to the share of the respondents and the executant under Ext.A1 has no right to execute the gift deed. 4. On hearing the learned senior counsel, I do not find any substantial question of law involved in the appeal. The suit is only for injunction. The only question is whether appellants have RSA 763/2011 3 established their possession on the date of institution of the suit. Appellants are claiming possession based on Ext.A1 gift deed dated 12.2.1985. Though appellants are claiming that since February 1985, they are in possession of the property, not even a receipt for payment of basic tax since 1985 was produced to show that acting on Ext.A1, they have at least paid the tax. The fact that respondents did not mount the box by itself is not a ground to grant a decree for injunction when admittedly respondent is a member of the Kovilakam. Even if for the non production of the final decree, it cannot be finally concluded that the plaint schedule property was alloted to the share of respondent, he would definitely be a co-owner, unless the Kovilakam properties were divided and alloted separately. In such circumstances, appellants are not entitled to the decree for injunction as rightly found by the courts below. As the suit is only for injunction and the question of title is not settled, dismissal of the suit will not be a bar to the appellants to institute an appropriate suit based on title. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk