IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 SA.No. 552 of 1995 -------------------- AS.217/1988 of PRINCIPAL DISTRICT COURT, THALASSERY, DATED 10.07.1995 OS.366/1981 of ADDL.MUNSIFF COURT, KANNUR, DATED 08.08.1988 .................... APPELLANT/APPELLANT/DEFENDANT: ------------------ PUTHUKKUDI CHODATHIL KRISHNAN VYDIAR, S/O. KUNHAPPA, MERCHANT, ELAYAVOOR AMSOM, ATHIRAKAM DESOM, KANNUR DISTRICT. BY ADVS. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.G.RAJAGOPALAN RESPONDENTS: --------------- 1. MEETHALE PEEDIKAYIL AFSATH, W/O. MUHAMMED KUNHI, PALLIKKUNNU AMSOM, TALAP DESOM, KANNUR DISTRICT. 2. SON, HASHEEKH (MINOR) S/O. LATE MUHAMMED KUNHI, REPRESENTED BY GUARDIAN AND MOTHER MEETHALE PEEDIKAYIL AFSATH, OF - DO - 3. BROTHER, ASHFAKH (MINOR) S/O. - DO - REPRESNETED BY GUARDIAN AND MOTHER MEETHALE PEEDIKAYIL AFSATH, OF - DO - 4. KUNHIKANDI KUNHAMINA, D/O. PACKER, OF DO - DO - 5. SON, KHALID, S/O. KUNHIKANDI KUNHAMINA, OF - DO - DO- SA.No. 552 of 1995 2 6. BROTHER, HASHEEN, S/O. -DO- OF -DO- -DO- 7. SISTER, ASMABI, D/O. -DO- OF -DO- -DO- 8. BROTHER, SALAM S/O. -DO- OF -DO- -DO- 9. SISTER NAJUMA, D/O. -DO- OF -DO- -DO- 10. SISTER, AYISHA, D/O. -DO- OF -DO- -DO- 11. K.K. AHAMMED, S/O. KUNHIKANDY SAINABA, PROPRIETOR, K.K. STORES, MA.A. ROAD, KANNUR AMSOM DESOM, KANNUR DISTRICT. R1 TO R3 BY ADV. SRI. SHEJI P. ABRAHAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ THOMAS P. JOSEPH, J - - - - - - - - - - - - - - - - - - - - - - - S.A.No. 552 of 1995 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2009 J U D G M E N T Following substantial questions of law are framed for a decision in the Second Appeal: 1. Whether the interpretation given by the courts below to the documents of title relied on by the deceased plaintiff to confer title over the disputed property in his favour is legal and proper? 2. Whether the courts below have correctly found title in favour of the original plaintiff in respect of the suit property? 3. Whether the courts below were legally correct in allowing recovery of possession of the disputed portion of the property from the appellant? 4. Has not the first appellate court committed illegality in setting aside the mandatory injunction granted by the trial court. These substantial questions of law arises in the Second Appeal brought from judgment and decree of learned Principal District Judge, Thalassery in A.S. No.217 of 1988 modifying judgment and decree of learned Munsiff, Cannanore, in O.S.No.366 of 1981. Facts necessary for a decision of the above question of law are: S.A.No. 552 of 1995 -2- 2. The suit property along with other items belonged to Fadalu and on his death, it devolved on his children, Khadeejabi, Aboobacker and Usman. While so, they entered into Ext.A1, partition deed dated 20.01.1960 as per which A schedule items therein were allotted to the sharer of Khadeejabi. B schedule items were allotted to the sharer of Aboobacker. In this Second Appeal, item Nos.3 and 4 of the A schedule and item No.12 of the B schedule in Ext.A1 are concerned. Khadeejabi sold item Nos.3 and 4 she got under Ext.A1 to the deceased original plaintiff as per Ext.A2, assignment deed dated 20.05.1974. Aboobacker on his part gifted item No.12 of B schedule in Ext.A1 in favour of his daughter, Nabeesabi as per a gift deed dated 16.03.1960 (which is not produced in the case). Item No.3 in A schedule of Ext.A1 is room No.29/1330 (old No.750) while item No.4 is room No.29/1329 (old No.751). Item No.12 in B schedule of Ext.A1 is room No.29/1331 (old No.752). Appellant claimed that as per an oral lease dated 10.02.1959 from Aboobacker who then was managing the property on behalf of his father Fadalu, he got possession of room No.29/1331 and the upstair portion of that room as well as room No.29/1330. He has been doing business in Ayurvedic medicines in room No.29/1331 and common upstair portion as stated above. After Nabeesabi got title over room No.29/1331, he executed Ext.A3, rent S.A.No. 552 of 1995 -3- deed dated 11.06.1960 in her favour reciting that he got oral lease from Aboobacker on 10.01.1959. While so, as per Ext.B4 dated 15.06.1981 appellant purchased room No.29/1331 from Nabeesabi. As per that document Nabeesabi conveyed right, title and interest over room No.29/1331 as well as the entire upstair portion over that room No.29/1330. Original plaintiff thereon filed suit for a decree of prohibitory injunction to restrain appellant from trespassing into the upstair portion of the above said room, Room No.29/1330. At the instance of the appellant, an Advocate Commissioner inspected the property and submitted Exts.C1 and C2. Commissioner reported that there is a common upstair portion over room Nos.29/1331 and 29/1330 and that the only entrance to that upstair portion is from Room No.29/1331. He reported that there is a similar upstair portion over room No.29/1329 and that portion is separated from the common upstair portion on the west by an old wall. Commissioner also reported that from the upstair of room No.29/1329, there is no access to the rest of the upstair towards west (ie. above room Nos.29/1330 and 29/1331). In the light of that report, original plaintiff amended the plaint to incorporate a prayer for recovery of possession and mandatory injunction to direct appellant to remove the existing old wall between the upstair portion of room No.29/1329 and the rest of S.A.No. 552 of 1995 -4- the upstair portion and also to construct a partition wall on the upstair portion in between room No.29/1331 and 29/1330. Appellant filed additional written statement denying the title of original plaintiff. Learned Munsiff found title in favour of original plaintiff in respect of room Nos29/1329 and 29/1330 and the upstair portion corresponding to the said rooms. Accordingly, the suit was decreed as prayed for. Aggrieved by that, appellant took up the matter in appeal. Appeal was dismissed in confirmation of the judgment and decree of the learned Munsiff. Appellant took up the matter in Second Appeal in this court. While the Second Appeal was pending, it was noticed that the sole plaintiff had expired even before the first appellate court disposed of the appeal. Noting that, the judgment and decree of the first appellate court were set aside and the matter was remanded to that court. Thereafter, legal representatives of deceased plaintiff got themselves impleaded as additional plaintiffs (they are the respondents in the Second Appeal). First appellate court after hearing both sides set aside the decree for mandatory injunction but in other aspects confirmed judgment and decree of the trial court. That is under challenge in this Second Appeal on the substantial questions of law which I have formulated above. It is contended by the learned counsel for appellant that the interpretation of Ext.A1 given by the court below S.A.No. 552 of 1995 -5- is erroneous. Learned counsel submits that appellant was in possession of room No.29/13331 as well as the entire upstair portion above that room and the adjacent room bearing No.29/1330 even as on 10.01.1954 as proved by the oral evidence as well as Ext.A3 and hence, while interpreting the relevant clause in Ext.A1, the courts below ought have borne in mind that appellant was in possession of the said portions. Viewed in that line thee was no possibility of the upstair portion above room No.29/1330 being allotted to Khadeejabi as per Ext.A1. Learned counsel further contends that at any rate, going by item Nos.3 and 4 in A schedule in Ext.A1 Khadeejabi got only 1 (one) cent but she has conveyed right title and interest of 1 ¼ cents as per Ext.A2. Original plaintiff was not able to establish his title over the said quarter cents. Yet another contention advanced by the learned counsel is that at any rate, tenancy right of appellant in respect of upstair portion over room No.29/1330 still remained and as such no decree for recovery of possession could be granted against the appellant at least in respect of that portion since the area is covered by the notification issued under Act 2 of 1965. Learned counsel for the respondent would contend that there is no reason to interfere with the judgment and decree of the first appellate court. According to the learned counsel interpretation given to the document is proper and legal on the facts and circumstances of the case. S.A.No. 552 of 1995 -6- 3. In item Nos.3 and 4 of the A schedule in Ext.A1 and item No.12 of the B schedule of that partition deed, it is not disputed, there is no reference to the upstair portions over the respective rooms bearing door Nos.29/1329, 29/1330, and 29/133. Instead, what is stated is one shop room (Hcpapdn]oSnI). There is no case for the parties that the upstair portion over the said three rooms was intended to be kept in common, and recitals in Ext.A1 do not also support such a line of thinking. Nor do the parties have a contention that the upstair portion were allotted to anybody else. Therefore the only possible interpretation that could be given to the word 'one shop room' (Hcpapdn]oSnI) appearing in item Nos.3 and 4 of the A schedule and, item No.12 of the B schedule of Ext.A1 is that the said one shop room (Hcpapdn]oSnI) included the respective upstair portion as wall. Mere fact that as reported in Exts.C1 and C2 there was no entrance from room 29/1330 to its upstair portion or, that the entrance to the upstair portion of room Nos.29/1330 and 29/1331 was from room No.29/1331 are not by itself is sufficient to hold either that the upstair was kept common or that upstair portion was allotted to any of the sharers in Ext.A1, in particular. I must also bear in mind that before Ext.A1 the entire building belonged to Fadalu and therefore, it may not S.A.No. 552 of 1995 -7- have been necessary to have separate access from room No.29/1330 to its corresponding upstair portion or, an access from upstair portion of room No.29/1329 to the remaining upstair portion on its west. That, appellant was a tenant of room No.29/1331 is also not sufficient to hold that the entire upstair portion of room Nos.29/1330 and 29/1331 was intended to be allotted to Aboobacker as per item No.12 in B schedule in Ext.A1. It is pertinent to note that appellant is not disputing title of original plaintiff over the upstair portion of room No. 29/1329. I must bear in mind that in respect of that upstair portion there is no separate mention in item No.3 or 4 of the A schedule of Ext.A1. Therefore reason persuades me to think that while allotting one shop room (Hcpapdn]oSnI) to Aboobacker as per item No.12 of B schedule of Ext.A1 and the remaining two rooms as A schedule item Nos. 3 and 4 (in A1) to Khadeeja, the intention was to allot the respective upstair portions also to them viewed in that line I am in agreement with the interpretation given by the courts below to Ext.A1. 4. Then the question is whether original plaintiff got title over 1 ¼ cents as stated in Ext.A2 while in Ext.A1 (item Nos. 3 and 4 of A schedule) the extent mentioned is only 1 (one) cent. It is not disputed that the quarter cent which is stated by the appellant as excess is on S.A.No. 552 of 1995 -8- the rear side of room Nos.29/1329 and 29/1330. There is no case that the said ¼ cent is beyond the common boundaries of item Nos.3 and 4 in A schedule of Ext.A1. Hence, I can only understand that as a difference in the extent mentioned in Ext.A1 and A2. In a case of this nature when there is no dispute with regard to the boundaries between Ext.A1, it is only reasonable to think that the respective sharers intended to allot the entire property coming within specific boundaries in item Nos.3 and 4 of A schedule of Ext.A1 to Khadeejabi. Hence, the challenge to the title of excess ¼ cent also has to fail. 5. What remained is whether appellant can be evicted from the corresponding upstair portion of room No.29/1330 except by recourse to the provisions of Act 2 of 1965. Though, appellant contended that he had been a tenant of room No.29/1331 and the common upstair portion of that room as well as adjacent room No.29/1330 he did not have a case that after he purchased property as per Ext.B4 or, after original plaintiff acquired title over respective rooms and the upstair portions as per Ext.A2, he attorned to the original plaintiff and continued to be a tenant of the corresponding up stair portion of room No.29/1330. Nor has he pleaded that except by recourse to the provisions Act 2 of 1965 he could not be evicted. It is S.A.No. 552 of 1995 -9- only in the Second Appeal the said question has been urged. Since there is no factual foundation for that contention and the question whether appellant attorned to the original plaintiff as tenant, being a question of fact that, question cannot be allowed to raise for the first time in the Second Appeal. 6. On going through the judgment and decree of the first appellate court I find no reason to interfere with the same. Substantial questions of law raised above are answered accordingly. Resultantly Second Appeal fails. It is dismissed. 7. So far as the Cross Objection filed by the respondents is concerned, though trial court granted a decree for mandatory injunction first appellate court set aside that part of the decree since there was no obligation on the part of appellant either to remove the old wall now in existence on the upstair portion or, to put up a new wall. There is no evidence to show either that existing common wall was put up by the appellant or that he had removed any wall in between upstair portion corresponding to room No.29/1330 and 29/1331. A mandatory injunction can be granted only to enforce an obligation, 'obligation' being a duty enforceable by law. There is no S.A.No. 552 of 1995 -10- case that under any contract or under any statutory provision appellant was obliged either to remove the existing common wall or, put up a new wall so far as it is not shown that a common wall was put up by the appellant or he removed any wall in between the up stair portion corresponding to room Nos.29/1330 and 29/1331. Hence, no mandatory injunction can be issued to the appellant, first appellate court therefore is justified in refusing to grant the mandatory injunction. 8. Resultantly, Second Appeal as well as Cross Objections fail and are dismissed without any order as to costs. THOMAS P. JOSEPH JUDGE shg/