IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 SA.No. 100 of 1995 -------------------- AS.58/1987 of PRL.SUB COURT,TRIVANDRUM OS.574/1984 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT: ----------- SANKARA PILLAI, THANKAPPAN NAIR PURAYATH DWARAKA, CHITTU VETTU MURI THOLICODE VILLAGE. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ------------- 1. PARVATHY AMMA THANKAMMA, MEKKUMKARA THADATHARIKATHU PUTHEN VEEDU, MOTTAMOODU, CHELLACHAL, CHITTU VEETU MURI, THOLICODOE VILLAGE 2. RAGHAVAN PILLAI BALAKRISHNAN NAIR MEKKUMKARA THADATHARIKATHU PUTHEN VEEDU DO DO DO 3. RAHAVAN PILLAI GOPAKUMARA NAIR MEKKUMKARA THADATHARIKATHU PUTHEN VEEDU MOTTAMOODU, CHELLACHAL CHITTU VEETU MURI, THOLICODE VILLAGE. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-2-2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 100 OF 1995 =========================== Dated this the 29th day of February, 2008 JUDGMENT Plaintiff in O.S.574/1984 on the file of Munsiff Court, Nedumangad is the appellant. Respondents are the defendants. First respondent is the mother and respondents 2 and 3 are the brothers of appellant. Appellant instituted the suit for permanent prohibitory injunction in respect of plaint A and B schedule properties. According to appellant, plaint A schedule property was purchased by him under Ext.A1 sale deed dated 4.4.1959 and at the time of the assignment, property was outstanding in the possession of the mortgagee and under Ext.A2 the mortgage was redeemed and possession was obtained in 1960 and since then appellant has been in possession and enjoyment of plaint A schedule property. It was contended that plaint B schedule property is situated on the western side of the plaint A S.A.100/1995 2 schedule property and it is lying as a compact block with plaint A schedule property and he has been in possession of the plaint B schedule property also and respondents have no manner of right or possession to the properties and they attempted to trespass into the property and therefore they are to be restrained by a permanent prohibitory injunction from trespassing into the plaint schedule properties. Respondents resisted the suit contending that though Ext.A1 assignment deed in respect of plaint A schedule property is in the name of appellant, it was purchased by first respondent benami in the name of appellant with her own funds and appellant has no right or possession of the property. It was contended that first respondent is in possession of 72 cents of the property including plaint A and B schedule properties and appellant is not having any possession and he is not entitled to the decree sought for. Respondents also contended that appellant had filed O.S.11/1984 for partition of S.A.100/1995 3 the properties, including plaint B schedule property and so the suit is to be stayed under section 10 of Code of Civil Procedure. 2. Learned Munsiff on the evidence of Pws. 1 to 3, DW1, Exts.A1 to A3 and Exts.B1 to B4 found that under Exts.A1 and A2 appellant has title to plaint A schedule property. It was found that plaint B schedule property belongs to first respondent and plaint A and B schedule properties are not in the possession of appellant and instead they are in the possession of first respondent, along with other properties. It was found that though appellant has title to plaint A schedule property, he is not in possession of the property and he has no right or possession over plaint B schedule property. The suit was dismissed. Appellant challenged the judgment before Sub Court, Thiruvananthapuram in A.S.58/1987. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. S.A.100/1995 4 3. The following substantial questions of law are formulated. 1. In the light of the recitals in Ext.A2 release deed that on the date of Ext.A2 possession of the property was handed over to the appellant, which is supported by the oral evidence, whether courts below were justified in holding that respondents are in possession and appellant is not entitled to the decree sought for. 2. In the light of the judgment and decree in A.S.118/1985 that appellant is entitled to 1/8th share in plaint B schedule property, whether courts below were justified in holding that appellant is not in possession of plaint B schedule property. S.A.100/1995 5 4. Learned counsel appearing for appellant was heard. There was no appearance for respondents. 5. The argument of learned counsel appearing for appellant is that under Ext.A1 sale deed plaint schedule property was purchased by appellant and though the property was outstanding in the possession of the mortgagee, under Ext.A2 mortgage was redeemed and possession of the property was obtained and in the light of Exts.A1 and A2 and the oral evidence courts below were not justified in holding that appellant did not establish possession of plaint A schedule property. As evidence of PW1 corroborated by PW2 and 3 establish that appellant has been in possession of the plaint A schedule property. Learned counsel also argued that courts below found that appellant has no right over plaint B schedule property in view of the judgment in O.S.11/1984, subsequently that judgment was set aside by the appellate court as per the judgment in A.S.118/1985, which was produced along with CMP 420/1995 to receive it as S.A.100/1995 6 an additional evidence under Rule 27 of Order XL1 of Code of Civil Procedure and finding of courts below that appellant has no right over pliant B schedule property is not sustainable. Learned counsel argued that in view of the decree in A.S.118/1985, even if appellant is not entitled to a decree for injunction in respect of plaint B schedule property, he is entitled to a decree in respect of plaint A schedule property. 6. Ext.A1 shows that plaint A schedule property stands in the name of the appellant and as the property was purchased in his name on 4.4.1959. Ext.A1 shows that appellant was only 18 years old at the time of execution of Ext.A1 sale deed. Ext.A1 also shows that consideration for the said assignment was paid by Raghavan Pillai, who is the second husband of first respondent, mother of the appellant. Anyway question whether Ext.A1 was purchased benami in the name of the appellant is not to be considered in this appeal as the suit is only one for injunction simpliciter. Though S.A.100/1995 7 learned counsel vehemently argued that on the evidence courts below should have found that plaint A schedule property has been in the possession of appellant, evidence establish that appellant has not been in possession of plaint schedule property. It is the specific case of appellant that plaint A and B schedule properties are in his possession as a compact block. When the suit and appeal were disposed by courts below, O.S.11/1984 filed by appellant against respondents claiming partition of the properties including plaint B schedule property stood dismissed. It was subsequently allowed in A.S.118/1985 whereunder it was found that appellant is entitled to 1/8 share. Whatever it be, it is asbolutely clear tht plaint B schedule property which is one of the properties directed to be divided in A.S.118/1985, is not in the exclusive possession of the appellant. If that be so, appellant cannot be in possession of plaint A schedule property, because even according to appellant, both the properties S.A.100/1995 8 are being enjoyed as one compact block. On appreciating the evidence, both the trial court and first appellate court found that appellant did not establish his possession of plaint A schedule property. I do not find any reason to interfere with that concurrent factual finding of the courts below arrived at on proper appreciation of evidence. Hence appellant is not entitled to the decree for injunction sought for and courts below rightly dismissed the suit and first appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.100 /95 --------------------- JUDGMENT 29TH FEBRUARY,2008