IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 AS.No. 986 of 1998() ------------------------------ OS.308/1974 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): PLAINTIFFS ---------------------------------------- 1. ABDUL RAHIMAN, S/O. KALLEATH ABDU, CHERUMARUTHAYUR DESOM, VENMENADU AMSOM , CHAVAKKAD TALUK. 2. ABDULRASHEED, S/O. KALLEATH ABDU, CHERUMARUTHAYUR DESOM, VENMENADU AMSOM, CHAVAKKAD TALUK. (APPELLANTS ARE REP.BY THE POWER OF ATTORNEY HOLDER ABDU, S/O.KALLEATH MUHAMMED, CHERUMARUTHAYUR DESOM, VENMENADU AMSOM, CHAVAKKAD TALUK.) BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S): DEFENDANTS ---------------------------------------------- 1. MARIYAMMA W/O. MUSLIAMVEETTIL KORI MUHAMMED HAJI, VHERUMARUTHAYUR DESOM, PAVARATY VILLAGE, CHAVAKKAD TALUK. 2. MUHAMMED HAJI, S/O. MUSLIAMVEETTIL, KORISSERY ABDU, CHERUMARUTHAYUR DEOSM, PAVARATY VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.K.K.MOHAMED RAVUF THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.7878/1998 IN AS. NO.986/1998 DISMISSED 28/09/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A.TO JUDGE tss M.N.KRISHNAN, J. ------------------------- A.S. No. 986 of 1998 ------------------------------------- Dated this the 28th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thrissur in O.S.No.308/1994. The suit is one for permanent injunction. It is the case of the plainiffs that they had purchased the property described in the plaint schedule by virtue of a series of documents in 1993 and thereafter they had been in possession of the property and defendants are attempting to trespass into the plaint schedule property and hence the suit. On the other hand, defendants 1 and 2 would contend that plaintiffs are not having any right over the property and also had denied the possession of the plaintiffs. They would contend that 17 cents of land comprised in survey No. 24/12 was set apart to the share of Ibrahimkutty, who is the brother of the predecessor in interest of the plaintiffs and he was in possession of that property. The trial court on a consideration of the materials dismissed the suit. It is against that decision the plaintiffs have come up in appeal. A.S. No. 986 of 1998 2 2. Heard. At the outset, I may like to point out that in order to succeed in a suit for injunction, plaintiffs have to prove their possession. Being an equitable relief those who seek equity must do equity and they should come to the court with clean hands. Now the documents relied upon by the plaintiffs are Exts. A1 and A2, which are the power of attorney executed during 1985 and the said power of attorney is relied upon for protecting the property purchased in 1993. Ext.A3 is a document executed by Ayisu, daughter of Abdul Rehiman to the plaintiffs with respect to 6 7/8 cents comprised in survey No. 24/8. Ext.A3(a) is a document executed by Amina infavour of the plaintiffs with respect to the same extent comprised in Survey No. 24/8. Ext.A3(b) is a document executed by power of attorney holder of one Mariyumma infavour of the plaintiffs with respect to 6½ cents of property comprised in Survey No. 24/12. Ext.A3(c) is the document executed by one Ahammedkuty infavour of the plaintiffs with respect to 5½ of property comprised in Survey No. 24/12 in 3 cents in Survey No. 24/5. Ext. A5 is the basic tax receipt obtained after the said assignment deeds. Ext.A6 is a possession A.S. No. 986 of 1998 3 certificate wth respect to some property in Survey Nos. 24/8 and 24/12. 3. The defendants would contend that the predecessor in interest of the plaintiffs namely, Adbu from whose children, plaintiffs had purchased the property got the property under Ext.B1 partition deed in the year 1941. According to that, brother of Abdu, namely, Ibrahimkutty was allotted some property under Ext.B1 and the schedule is attached. Item No.33 is described as a property having an extent of 17 cents comprised in Survey No.24/12. Unfortunately, the plaintiffs did not produce the schedule relating to Abdu so as to find out which are the properties that are derived by Abdu under Ext.B1 partition deed. So the basic documents relied upon by the parties is Ext.B1. If Abdu has no right over the property, children will not get any right and therefore, those children will not be in a position to assign the property infavour of the plaintiffs. But being a suit for injuncton and as the properties are not identified or attempted to be located on the basis of Ext.B, it may not be correct to hold that the plaintiffs are not having title to the property. It has to be stated A.S. No. 986 of 1998 4 that the plaintiffs had not taken serious steps to get the property properly located as per the basic documents. It is true that in a suit for injunction, the relief can be granted if the plaintiffs are able to establish that they are in possession of the property on the date of suit. As stated by me earlier as the title and possession had come into effect only in the last month of 1993 and the receipts are also obtained on the basis of those documents. So those documents by itself will not be sufficient to prove the possession of the plaintffs over the property. Therefore, I also decline to grant a decree infavour of the plaintiff, but I make it very clear that I had not rendered any finding on the question of title and any observation herein will not have any adverse effect on the plaintiffs. The plaintiffs are at liberty to move the approprate court with respect to their title. The appeal is dismissed, but under the circumstances, without any order as to costs. M.N.KRISHNAN, JUDGE ln