IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 SA.No. 618 of 1997() ------------------- AS NO. 62/1995 OF SUB COURT, QUILANDY O.S. NO. 62/1990 OF MUNSIFF COURT, KOYILANDY ................... 1ST PLAINTIFF / 1ST RESPONDENT / APPELLANT : ------------------------------------------------------------------------- K. PURUSHOTHAMAN, KAMPURATH HOUSE, MAKKATA AMSOM, DESOM, KAKKODI, KOZHIKODE DISTRICT. BY ADV. SRI.R.PARTHASARATHY DEFENDANT / APPELLANT / RESPONDENT : --------------------------------------------------------------- POOVALAPPIL LAKSHMANAM, VELIYAKAM PARAMBA, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI. N.L. KRISHNAMOORTHY SRI. LAKSHMINARAYANAN SMT. SATHYASHREE PRIYA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON 17/01/2011 DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 618 of 1997() -2- ORDER ON C.M.P. NO. 1635/1997 IN SA. NO. 618/1997 DISMISSED 17/01/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 618 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2011. JUDGMENT The plaintiff in O.S. 62 of 1990 before the Munsiff's Court, Quilandy, who was non-suited by the lower appellate court, is the appellant before this court. 2. The plaintiff claimed to be the absolute owner in possession of the plaint schedule property, which has an extent of 4 ½ cents as per Ext.A1 dated 1.9.1987. The property admittedly belonged to the father of the defendants. It is claimed that Kunhiraman, the father of the defendant, executed a verumpattam deed Ext.A3 dated 7.9.1966 in favour of one Kuttooli. Kuttooli in turn assigned the property to Velayudhan as per Ext.A13 dated 16.8.1972. Velayudhan thereafter executed an assignment deed, Ext.A15, dated 7.9.1979 in favour of Kunhammad. As per Ext.A14 dated 9.1.1986 S.A.618/1997. 2 Kunhammad sold the property in favour of Abu. Abu in turn assigned the property to the plaintiff as per Ext.A1. It is claimed that Ext.A4 dated 1.12.1976 purchase certificate has been issued in respect of the suit property. The plaintiff claims to be in absolute possession and enjoyment of the suit property. The complaint of the plaintiff is that while he was preparing to put up a structure in the property, the defendants obstructed and that caused the institution of the suit. 2. Defendants denied the plaint allegations and claimed that the property is not identifiable. They disputed the lease deed executed by Kunhiraman. According to them, neither Kuttooli nor his successors were ever in possession of the property. Pointing out that the plaintiff has no manner of right over the suit property, they prayed for a dismissal of the suit. 3. On the basis of the above pleadings, the trial court raised necessary issues for consideration. The S.A.618/1997. 3 evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A15 from the side of the plaintiff. The defendants examined D.Ws. 1 and 2. Exts. C1 to C4 are the commission reports and plans. The trial court had accepted the case of the defendants that the lease in favour of Kuttooli may not be valid, however held that being a suit for injunction simplicitor, the only issue to be looked into is the question of possession alone and held that pursuant to Ext.A3, Kunhiraman had lost possession of the suit property. The suit was decreed in favour of the plaintiff. 4. The defendants carried the matter in appeal as A.S.62 of 1995. The lower appellate court criticized the trial court for holding in favour of the plaintiff. It came to the conclusion that the lease was invalid so also the purchase certificate. Holding that the plaintiff had no manner of right whatsoever, the appeal was allowed and the suit was dismissed. Hence this Second Appeal. S.A.618/1997. 4 5. Notice has been issued on the following questions of law: “1) Is the lower appellate court justified in law in denying a decree for injunction merely for the reason that original tenancy right which after several sale deeds, was obtained by the plaintiff is hit by Sec. 74 of the Kerala Land Reforms Act. 2) Has not the lower appellate court gone wrong in ignoring the principle that in a suit for injunction, the only question to be decided is whether the plaintiff is in possession of the property and the nature and character of possession is immaterial as held by the Full Bench decision in 1979 KLT 766 (Kesava Bhat v. Subraya Bhat). 3) Is the lower appellate court correct in law in thinking that Premji Rethan Shah's case decided by the Hon'ble Supreme Court is applicable to the facts of the case. 4) Has not the lower appellate court gone wrong in assuming that the defendant is the true owner when the same was not admitted by the plaintiff and is against the admission of the defendant himself in the case. S.A.618/1997. 5 5) Has not the lower appellate court gone wrong in ignoring the fact that a person in possession, even if his possession is to be characterised as a trespasser can prescribe his right by adverse possession and limitation and therefore he becomes the owner of the property. 6) Has not the lower appellate court gone wrong in reversing the judgment and decree of the trial court without adverting to the material documents relied on by the trial court.” 6. Learned counsel appearing for the appellant pointed out that the lower appellate court has misdirected itself both on facts and in law. None of the grounds relied on by the lower appellate court could be held to be valid for dismissing the suit. According to the learned counsel, even assuming that the lease in favour of Kuttooli is hit by Section 74 of the Kerala Land Reforms Act, the fact remains that Kunhiraman had handed over possession of the property to Kuttooli and there were subsequent assignments by various persons, ultimately the plaintiff became the owner of the S.A.618/1997. 6 property. Even assuming that the plaintiff did not have title to the suit property, as per Ext.A1 he obtained possession of the suit property. Having come into possession legally, even assuming that title of the plaintiff is defective, the remedy open to the defendant is to recover possession in accordance with law. He cannot obstruct the plaintiff from doing any act in the property, which he obtained by lawful means. In support of his contention, learned counsel relied on the decision reported in Kesava Bhat v. Subraya Bhat (1979 K.L.T. 766), Aiyusamma v. Mrs. Mariyamma (1994 (1) K.L.J. 289), Rame Gowda v. M. Varadappa Naidu ((2004) 1 SCC 769) and Devassy v. Koratty Grama Panchayat (2008(1) K.L.T. 719). 7. Per contra, learned counsel appearing for the respondents pointed out that the lower appellate court was fully justified in non-suiting the plaintiff. No valid lease could be created after 1.4.1964 going by Section 74 of the KLR Act. The lower appellate court has adverted to the various S.A.618/1997. 7 decisions of this court which have held that such a lease could confer no title on any person. This court has also held that it is against public policy to create any such lease. That being the position, Kunhiraman could not execute a valid lease in favour of Kuttooli and if that be so, the plaintiff could not derive any valid title over the suit property. Learned counsel pointed out that if at all the plaintiff wants to defend his possession, he has to sue for declaration also and a mere suit for injunction will not be sufficient. In support of his contention learned counsel relied on the decisions reported in Gireesh Chandra Babu v. divisional Forest Officer (2009(2) K.L.T. 909) and Anathula Sudhakar v. P. Buchi Reddy ((2008) 4 SCC 594). 8. One has to remember that the suit is one for injunction simplicitor. It is well settled that in such a suit the only question that arises for consideration is whether the plaintiff has succeeded in proving that he has possession S.A.618/1997. 8 over the suit property as on the date of suit. If he is in possession of the property, even if he is forcibly dispossessed by the lawful owner, he can seek to be inducted into possession taking aid of Section 6 of the Specific Relief Act. 9. In the case on hand, by Ext.A3 Kunhiraman leased out the property to Kuttooli. The evidence is to the effect that Kuttooli had resided in the property for a while. Whatever that be, as on the date of the suit there was no building in the property. The various assignments in respect of the property had already been adverted to at the time of referring to the pleadings. It is seen that by Exts.A2, A7, A8, A9, A10 and A11 tax has been paid in respect of the suit property by the persons in possession at the relevant time. All the transactions started from Kuttooli ending till the plaintiff are evidenced by registered documents. One cannot also omit to note that the purchase certificate has been issued in respect of the property. S.A.618/1997. 9 10. It is true that going strictly by the provisions of the Kerala Land Reforms Act, i.e., Section 74 of the Act, lease executed by Kunhiraman in favaour of Kuttooli is invalid. However, the fact remains that Kuttooli was put in possession of the property and he was residing therein till he assigned it in favour of Velayudhan. The evidence is to the effect that it was thereafter that Kuhiraman had died. It is significant to notice that the defendant claims only as a legal heir of Kunhiraman and he has not set up any independent right. Of course, he is justified in saying that the lease is invalid. But the trial court found that Kuttooli was actually inducted into possession by Kunhiraman. Therefore it could not be said that the possession of Kuttooli was unlawful or he was a trespasser. It was the possessory right which was held by Kuttooli, that could have been the subject matter of subsequent assignments. 11. It is true that in the decision relied on by the learned counsel for the respondents, i.e., Gireesh Chandra S.A.618/1997. 10 Babu's case (supra), it was held that no injunction could be issued against the true owner. 12. In the decision reported in Kesava Bhat v. Subraya Bhat (1979 K.L.T. 766) relied on by the learned counsel for the appellant, it was held that the only issue in a suit for injunction is regarding the actual possession of the plaintiff as on the date of the suit. The issue regarding title in such cases do not arise for consideration. 13. In the decision reported in Aiysumma v. Mrs. Mariyamma (1994(1) K.L.J 289) relied on the learned counsel for the appellant, it was held as follows: “The rights of the person in possession are valid against entire world except the true owner. But that is not to say that the true owner can take the law into his hands and dispossess the person in possession, although a trespasser, without recourse to the due process of law or forcibly. All that the decisions intended to lay down was that the person in possession can resist claims for recovery of possession from any quarter except the true owner. But the true owner should have S.A.618/1997. 11 recourse to due process of law, to recover possession of the property even from a trespasser. Depriving a person in possession of protection in a civil action for injunction will lead to a situation where might is right, with persons taking the law into their hands and forcibly evicting persons in possession without recourse to the due process of law. If must be mentioned here that law abhors violence and use of force, even in assertion, of rights. That is why citizens are obliged to have recourse to courts of law for enforcement of their rights. It must also be noted that the person in possession may have his own rights to set up against the owner and he will be deprived of opportunities to set them up if no protection is afforded against forcible dispossession by the owner.” 14. In the decision reported in Rame Gowda (Dead) by LRS. v. M. Varadappa Naidu (Dead) by LRS. ((2004) 1 SCC 769), the issue regarding issuance of injunction against the true owner was considered in detail. In paragraph 9 of that decision, it was held as follows: S.A.618/1997. 12 “It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v. State of U.P.. The authorities need not be multiplied. In Munshi Ram Case it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have S.A.618/1997. 13 the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh Case the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacker. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. the Court laid down the following tests which may be adopted as a S.A.618/1997. 14 working rule for determining the attributes of “settled possession”: (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of the case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no S.A.618/1997. 15 right to destroy the crop grown by the trespasser and take forcible possession.” 15. In the decision reported in Sopan Sukhdeo Sable v. Assistant Charity Commissioner ((2004) 3 SCC 137) it was held as follows: “There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that “If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.” That a person without title but in “settled” possession - as against mere fugitive possession - S.A.618/1997. 16 can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases.” 16. In the decision reported in Nelapatla Ramaiah v. Kamatam Bikshamaiah ((2010) (2) SCC 139) it was held as follows: “That there were a series of transactions involving the suit lands after the original plaintiff executed the agreement for sale on 25.5.1961 and lost possession thereof, is not disputed. It is also not disputed that the plaintiffs had not at any point of time objected to the agreements for sale entered into after 25.5.1961 despite the same being adverse to their interest. The High Court, in our view, correctly held that the possession of the defendants was adverse the interests of the plaintiffs.” 17. A reading of the above decisions will make it clear that normally a relief of injunction by a trespasser will S.A.618/1997. 17 not lie against the true owner. The trespasser, who is in a 'settled possession' as going by the decisions relied on by the learned counsel for the appellant, is entitled to protect his possession even against the true owner. As already noticed, this principle has been recognised in Section 6 of the Specific Relief Act. 18. The contention raised on behalf of the respondent that in order to protect his possession, the plaintiff has to seek declaration of his possession is without basis. True, in the decision reported in Anathula Sudhakar's case (supra), it was held as follows: “The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered by the defendant, a suit for an injunction simplicitor will lie. A person has a right S.A.618/1997. 18 to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.” S.A.618/1997. 19 19. The case on hand does not fall under any of the categories mentioned in the decisions so as to compel the plaintiff to seek a declaration of possession. 20. Returning to the facts of the case, there is no case for the defendant that by virtue of Ext.A3 document Kunhiraman had not handed over possession to Kuttooli. Of course, the transaction is denied, but the fact remains that in terms thereof Kuttooli did take possession of the property and he had assigned it to Velayudhan in the year 1972. From the records, it is seen that Velayudhan obtained a purchase certificate namely Ext.A4 dated 1.12.1976. Nothing is stated in the written statement about this purchase certificate. I am not forgetting the fact that the defendant has a case that the lease in favour of Kuttooli is invalid. But the fact remains that the purchase certificate was obtained from the Land Tribunal. It has been held that in such a case it will be deemed that the person who has obtained the purchase certificate is in actual possession of S.A.618/1997. 20 the property covered by the purchase certificate. Even assuming that the defendant's plea that title is defective is accepted, the fact remains that Ext.A4 can be used to claim actual physical possession of the suit property. The various revenue receipts produced by the plaintiff will also indicate that tax has been paid in respect of the property. Whatever worth it has, he has also obtained Ext.A12 possession certificate from the Village Officer Panthalayani, which shows that the plaintiff is in possession of the suit property. Exts. A5 and A6 are the approved plan and licence issued from Quilandy Panchayat to the plaintiff for constructing the building in the property. 21. The comments made by the lower appellate court with respect to the purchase certificate seem to be totally baseless. One fails to understand as to how the lower appellate court has come to the conclusion that the letters 'TD' shown in the purchase certificate refers to the Devaswom property and therefore the Land Tribunal could S.A.618/1997. 21 not have issued purchase certificate. The defendants seem to have no such case at all and the learned counsel on both sides were unable to show to this court that the letters 'TD' seen in the purchase certificate indicated that it is devaswom land. The lower appellate court has gone into an aspect which is neither covered by the pleadings nor in the evidence. 22. It cannot be disputed that the lease being invalid, the title of the plaintiff, as rightly pointed out the learned counsel for the respondents, may be defective. But being a suit for injunction simplicitor, one need not go deep into that aspect because the essential question is regarding the actual possession of the property. The trial court on an evaluation of the evidence in the case has come to a conclusion that the suit property is in the possession of the plaintiff. 23. It is true that even though the predecessor in interest of the plaintiff claimed that he had put up S.A.618/1997. 22 boundaries, it is found to be untrue. Going by the commission report the property in the possession of the plaintiff and that owned by the defendant lie contiguously. But the claim of the defendant that the property is unidentifiable is belied by the commission report and plan. Whatever that be, there is sufficient evidence to show that in pursuance to Ext.A3 lease Kuttooli had obtained possession of the property and by virtue of the various assignments made mention of, ultimately, the possession came to vest with the plaintiff. 24. On a consideration of the materials available in the case, it seems that the view taken by the trial court was the