IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 RSA.No. 1046 of 2008() ---------------------- AS.36/2004 of SUB COURT, CHERTHALA OS.449/1999 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. VELAYUDHAN, S/O. CHERUKKAN, KEEKKARAYIL, UZHUVAMURI, VAYALAR EAST VILLAGE. 2. DIVAKARAN, S/O. CHERUKKAN, KEEKKARAYIL, UZHUVAMURI, VAYALAR EAST VILLAGE. 3. PRASAD, S/O. VELAYUDHAN, NOW PERMANENTLY RESIDING AT CHIRAYIL HOUSE, CMC -27, CHERTHALA FROM KEEKKARAYIL UZHUVAMURI, VAYALAR EAST VILLAGE. 4. SHAJI S/O. VELAYUDHAN, KEEKKARAYIL, UZHUVAMURI, VAYALAR EAST VILLAGE. 5. SURESH, S/O. VELAYUDHAN, KEEKKARAYIL, UZHUVAMURI, VAYALAR EAST VILLAGE. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.T.GOPALAKRISHNAN RESPONDENT(S): --------------- DINESAN, S/O. KANNANJI, KOTHACHAMKADU HOUSE, ERAMALLOOR MURI, ERAMALLOOR VILLAGE, CHERTHALA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ............................................... R.S.A. NO. 1046 of 2008 .................................... Dated: 04-11-2008 JUDGMENT Defendants 1 to 5 in O.S. No. 449 of 1999 on the file of the Principal Munsiff's Court, Cherthala are the appellants in this Second Appeal. The said suit was one for perpetual injunction restraining the 5 defendants from trespassing upon the plaint schedule property described as 15 cents of land which is part of a larger extent of 27 cents. The plaintiff claimed title and possession over the plaint schedule property under Ext.A1 sale deed dated 27-2-1999. According to the plaintiff, the plaint schedule property was allotted to Devaki the mother of plaintiff's assignor Sarasamma (PW4) under Ext.B5 settlement deed. The mother of P.W4 had obtained properties including plaint schedule property as per Ext.A2 partition deed dated 13-1- R.S.A. NO. 1046 of 2008 -:2:- 1993. The defendants on the other hand contended that the plaint schedule property was the property of Keekkara Kudumba Yogum as dedicated to the Yogum pursuant to Ext.B4 partition and that the defendants were only some of the members of the Yogum and the Yogum as such was a necessary and proper party to the suit and without impleading the Yogum a suit is bad for non-joinder of necessary parties. 2. On the side of the plaintiffs six witnesses were examined as P.Ws 1 to 6 and Exts. A1 to A6 series were got marked. On the side of the defendants three witnesses were examined as Dws 1 to 3 and Exts. B1 to B6 were got marked. Ext. C series are the report and plans submitted by the Advocate Commissioner deputed by the trial Court. 3. The learned Munsiff as per judgment dated 31-1- 2004 held that the plaintiff was in possession of the plaint schedule property on the date of suit and decreed the suit as prayed for after rejecting the defence contentions including the plea of non-joinder of necessary party. R.S.A. NO. 1046 of 2008 -:3:- 3. The learned counsel appearing for the appellants submitted that the suit property had been dedicated as the Yogam property of the Keekkara Kudumba Yogam and P.W.4 who was only a member of the said family had no authority to assign the suit property to the plaintiff as per Ext.A1, that the effect of the decree granted by the courts below would amount to granting a decree of injunction against the Keekkara Kudumba Yogum which is the true owner and going by the decision of the Apex Court in 1994 (5) SCC 547 no injunction can be granted against the true owner by a person who does not have any settled possession but who was was only a recent purchaser under Ext.A1 which itself is clouded with a defect in title. The learned counsel further submitted that in a suit for injunction the Courts below have virtually held that the plaintiff has title over the suit property. 4. It may be true that for considering possession, the courts had incidentally gone into the question of title also. But then the suit has been decided essentially on the R.S.A. NO. 1046 of 2008 -:4:- question of possession. When even according to the appellant, the Yogum is not before Court, there is no question of the court granting a decree of injunction against the Yogum which is not also bound by the decree passed by the courts. The plaintiff only wanted a decree against the five defendants and the courts below have also granted a decree only against the five defendants in the suit. If the Yogum is aggrieved by the decree nothing prevents the Yogum from instituting appropriate proceedings against the plaintiff or against P.W.4. But the fact that the mother of P.W.4 to whom the property was alotted in partition and P.W.4 had jointly sold the plaint schedule property to the plaintiff as per Ext.A1 sale deed and innumerable tax receipts had been produced by the plaintiff to show the possession of the property by the plaintiff and his predecessors - in-interest, cannot be overlooked altogether. As against this, the defendants had no case of ever having paid the land revenue in respect of the plaint schedule property. Hence, the finding recorded R.S.A. NO. 1046 of 2008 -:5:- by the courts below to the effect that the plaintiff is in possession of the suit property is a pure finding of fact based on the evidence in the case. No question of law, much less, any substantial question of law arises for consideration in this appeal. The questions formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 4th day of November 008. Sd/-V. Ramkumar, Judge /true copy/ ani R.S.A. NO. 1046 of 2008 -:6:-