IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 RSA.No. 1107 of 2009() ---------------------- AS.99/2000 of SUB COURT, OTTAPPALAM OS.136/1994 of MUNSIFF-MAGISTRATE COURT,PATTAMBI .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------- 1. SREEMANUNNI THIRUMULPAD S/O. CHERUMUKKATHODIYIL SINNAMALU KOLPAD R/AT CHUNDAMPATTA AMSOM DESOM, OTTAPPALAM TALUK. 2. DEVAKI KOLPAD D/O.CHERUMUKKATHODIYIL NANJUNNIKKUTTY KOLPAD R/AT CHUNDAMPATTA AMSOM DESOM, OTTAPPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S)/RESPONDENTS 2 TO 9 & SUPPL.R10 TO R12-LRS OF R1/ DEFENDANTS 2 AND 4 TO 10-D1 DIED: --------------- 1. KOORI, S/O.PUTHIYIEDATH THODI CHANGAN R/AT CHUNDAMPATTA AMSOM DESOM ,OTTAPPALAM TALUK. 2. AYYAPPAN, S/O. DO..DO.. R/AT DO...DO. 3. DEVAKI, W/O.DECEASED GANGADHARAN R/AT DO..DO.. 4. ANITHA, D/O.DECEASED GANGADHARAN R/AT DO..DO.. 5. AMBIKA, D/O.DECEASED GANGADHARAN R/AT DO..DO.. 6. VIJAYAN,S/O. DECEASED GANGADHARAN, R/AT DO.. DO.. RSA NO.1107/2009 2 7. JAYASREE, D/O. DECEASED GANGADHARAN R/AT DO..DO.. 8. SUBRAMONIAN, S/O.DECEASED GANGADHARAN R/AT DO..DO.. 9. CHAKKI, W/O. DECEASED CHANGAN R/AT CHUNDAMPATTA AMSOM AND DESOM IN OTTAPPALAM TALUK. 10. SATHI, D/O. DECEASED CHANGAN R/AT DO..DO.. 11. PRABHAKRAN, S/O. DECEASED CHANGAN R/AT DO..DO.. 12. KOMALAM, D/O. DECEASED CHANGAN R/AT DO..DO.. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1107 of 2009 -------------------------------------- Dated this the 30th day of October, 2009. JUDGMENT Second Appeal comes from judgment and decree of learned Sub Judge, Ottappalam in A.S.No.99 of 2000 confirming finding regarding possession of the suit property entered by learned Munsiff-Magistrate, Pattambi in O.S.No.136 of 1994 and dismissing the appeal preferred by the appellants/plaintiffs. 2. Suit as framed is merely one for injunction based on possession claimed by the appellants. They say that the suit property was acquired by the thavazhi of appellant No.1 as per Ext.A1, partition deed dated 24.4.1919 and that appellant No.1 also acquired right in the property on his birth in that tharawad. Mother of appellant No.1 was executant No.4 in Ext.A1, partition deed. Item Nos. 1 to 8 were allotted to appellant No.1. Plaint schedule property is a portion of item No.2 in Ext.A1. Appellants claimed possession over the suit property and sought injunction against the respondents/defendants. Respondents claimed that the property was obtained by their predecessor-in- interest, Changan about 60 years back as per an oral lease from the thavazhi of appellants and after death of Changan the lease hold right devolved on respondents who are in possession and enjoyment of the property. While so in the year 1976, there was a partition among the respondents and the suit property was allotted to the share of Chakky, wife of Changan as G schedule. Chakky RSA No.1107/2009 2 died 15 years back and thereon suit property devolved on the respondents who are her legal representatives. Learned Munsiff found that evidence adduced by the appellants is not sufficient to hold that they are in possession of the suit property and accordingly dismissed the suit. That was confirmed by the first appellate court. Hence this Second Appeal urging the following questions by way of substantial questions of law: i. Whether due to non-obtaining a purchase certificate by the respondents in respect of the plaint schedule property in spite of inclusion of the same in Ext.B1, partition deed of the year 1976 and based on the presumption that possession follows title appellants are entitled to get a decree for injunction? ii. Whether lie of the plaint schedule property probabilises case of possession by the appellants? iii. Whether the decisions of the Courts below are vitiated for the non- consideration of material evidence in the case? RSA No.1107/2009 3 It is contended by learned counsel for appellants that in the nature of lie of the property as revealed from Exts.A1 to A3 it was quite improbabile that there would be a lease in respect of the suit property in favour of the predecessor-in- interest of the respondents. It is contended by learned counsel that so far as title of the appellants is not under challenge and remains, the principle that possession follows title ought to have been accepted by the courts below in favour of the appellants. It is also the contention of learned counsel that the non-obtaining of purchase certificate for long negatived the contention of respondents regarding lease. According to learned counsel, findings entered by the courts below are vitiated by non-consideration of the material evidence. 3. The principle that possession follows title cannot apply to agricultural lands. That principle can apply only in respect of the vacant lands in relation to which parties may not be able to produce evidence of act of possession. Suit property, it is not disputed is agricultural land, extent of which is 30 cents. Therefore contention that the principle that possession must follow title cannot apply to the facts of the case. As the position is settled by binding authorities, the question raised in that regard is no more debatable in this Second Appeal and does not involve any substantial question of law. RSA No.1107/2009 4 4. This being a suit for injunction alone what is to be considered is only whether appellants were in possession of the suit property on the date of suit. Enquiry into title is not contemplated or required as held by the Apex Court in Anathula Sudhakar v. P.Buchi Reddy [(2008) 4 SCC 594]. May be reference to the respective title deeds would become necessary to decide the question of possession. It is conceded by learned counsel for appellants that courts below have not entered any finding as to the title of the contesting parties though reference has been made to the documents relied on by the parties to decide the issue of possession. 5. Ext.A1 is the partition deed in the thavazhi of appellants executed on 24.4.1919. Respondents are not disputing title of the thavazhi of appellants over the suit property. Their claim is based on an oral lease in favour of their predecessor-in-interest, Changan about 60 years back. Ext.B1 is the partition deed of 1976 in the family of respondents. According to them, G schedule is the suit property which was allotted to the share of Chakky. G schedule property in Ext.B1 is named as 'cherumukkathodi palliyal' while plaint schedule property is described as 'madathilthodi'. This discrepancy is cleared by PWs1 and 2 who gave evidence on behalf of appellants. They stated that RSA No.1107/2009 5 'madathilthodi' is also called as 'cherumukkathodi palliyal'. I am unable to accept the argument of learned counsel that the statement of PWs1 and 2 is a stray statement and is not sufficient to hold that the properties are the same. 6. Ext.A3 series are relied on by learned counsel to prove possession claimed by the appellants. Among Ext.A3 series, receipts for payment of revenue the earliest one is dated 25.1.1995 while the suit was filed in the year 1994. Appellants were also not able to produce receipts for payment of revenue prior to 25.1.1995. True, respondents did not produce any receipt for payment of revenue. But being a suit for injunction the court, as stated earlier is concerned with the question whether appellants proved their possession over the suit property. 7. Equally unsustainable is the contention that considering the lie of the suit property as stated by the advocate commissioner there could not be any lease. I am not required to consider whether or not there was a lease in favour of the predecessor-in-interest of the respondents. I need only note that the disputed property is situated towards north-eastern portion of the entire property belonging to the appellants and that the properties on the north and east of the RSA No.1107/2009 6 disputed property belong to third parties. From that lie, no inference is possible that there could not have been possession and enjoyment of the suit property separate from the rest of the property admittedly belonging to the appellants. 8. Courts below found on evidence that appellants were not able to establish their claim of possession of the suit property. That is a finding based on a proper appreciation of evidence and so far as the finding is not shown to be perverse, there is no reason to interfere in Second Appeal on such finding. No substantial question of law is involved requiring admission of the appeal. Second Appeal is dismissed in limine. I.A.No.1514 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks