IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 5TH MAY 2009 / 15TH VAISAKHA 1931 AS.No. 249 of 2003() -------------------- OS.466/1994 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): PLAINTIFFS ------------------------ 1. UNNIKRISHNAN, AGED 47, NO PROFESSION, S/O.PARAYIL AMMUKUTTY AMMA, THEKUMURI, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. 2. AMMUKUTTY AMMA, AGED 73, D/O.PARAYIL KUNJI AMMA, THEKUMURI, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): DEFENDANTS ------------------------- 1. JOSSY, S/O.PONKOTH JOSEPH, KOTTPURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK. 2. INDIRA, W/O.SANKARA NARAYANAN, ONACHAMAVU DESOM, MATHILAKAM VILLAGE, KODUNGALLUR TALUK. 3. RAFOOZ, PARAYANKURI ABDU, MURINGOOR, THEKUMURI VILLAGE, MUKUNDAPURAM TALUK. 4. MANIKANDA MENON, S/O.EDATHOOTT LAKSHMIKUTTY AMMA, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. 5. XAVIER, S/O.KALIYANKARA KURIYAPPAN PUTHENCHIRA VILLAGE, THEKUMURI DESOM, MUKUNDAPURAM TALUK. 6. ASOKAN, S/O.PULIKKAL RAMAN, PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.K.G.BALASUBRAMANIAN FOR R5 SRI.K.J.GEORGE FOR R7 TO 9 SMT.P.D.SHEEJA FOR R7 TO 9 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- AS. No. 249 OF 2003 ----------------------------------------------- Dated this the 5th day of May, 2009 J U D G M E N T The plaintiffs in a suit for permanent prohibitory injunction are aggrieved by the dismissal of their suit and also by the decree of recovery of possession granted in favour of the 5th defendant 5th respondent in respect of a portion of the plaint schedule property covered by Ext.B3 (the red coloured portion in Ext.C4 survey plan). The parties will be referred to for convenience as they were before the court below. As averred in the plaint the case of the plaintiff is that the plaint schedule property belonged originally to the second plaintiff by virtue of document No.1544/1102 M.E. of Sub Registry, Paravur and was later settled in favour of the first plaintiff, the son of the second plaintiff by virtue of Ext.A1 settlement deed. The plaintiffs are in actual possession and residential enjoyment of the plaint schedule property and the house situated thereon. AS.N0. 249/03 -2- The first plaintiff was conducting business and defendants 1 to 3 were sales agents in the said business. On account of the closure of the business the first plaintiff become liable to pay certain amounts to defendants 1 to 3. Towards security for discharging the above debts the second plaintiff executed Ext.B1 sale deed dated 12-12-1985 in favour of defendants 1 to 3. According to the plaintiffs they paid the entire amounts due from them and requested defendants 1 to 3 to execute a release deed to which defendants did not respond. But on 26-6-1994 defendants would come to the house of the plaintiffs and make demand for amounts and threatened the plaintiffs to trespass upon the plaint schedule property on failure of payment. According to the plaintiffs, defendants have no manner of right over the plaint schedule property. Apprehending trespass the suit was instituted for injunction against trespass and commission of waste. 2. The suit was contested by D2 and D5 alone. D2 AS.N0. 249/03 -3- contended that the suit is not maintainable. According to her, defendants 1 to 3 got assignment of properties extending to 17½ cents by virtue of document No.5266/85 (Ext.B1) and the properties are under their possession and enjoyment. While so, they sold 10 ½ cents from out of the above 17½ cents to the 5th defendant under document No.1413/94 of SRO Mala (Ext.B2). It is contended that Ext.A1 settlement deed of 1992 is not a genuine document. It is on the strength of the above document and by influencing revenue officials that the plaintiffs have been able to obtain tax receipts in respect of the properties. By Ext.B1, second plaintiff lost her title over the entire property and she has no further right to execute Ext.A1. It was contended that no building is situated on the plaint schedule property and that the plaintiff does not have any possession over the plaint schedule property. The contention that defendants 1 to 3 were sales agents under the first plaintiff is also denied and it is alleged that the first plaintiff is only a AS.N0. 249/03 -4- cheat involved in the business of procuring Visas. He is accused in many criminal cases. The averment that Ext.B1 was executed as a security document is described as false. It is claimed that property was purchased by defendants 1 to 3 by paying adequate consideration. It is alleged that the plaintiffs purposefully mentioned a wrong survey number in Ext.B1, but misquoting of the survey number will not in any way affect the rights which the defendants acquired under the document. Ext.B2 document in favour of the 5th defendant is valid document fully supported by consideration. The claim for release deed is refuted. It is contended that there is no creditor debtor relationship between plaintiffs and defendants 1 to 3. The allegations of attempted trespass are all refuted. It is submitted that the defendants do not wield any influence in the locality and the apprehensions expressed by the plaintiffs are without any basis. It is requested that the suit be dismissed with compensatory costs. AS.N0. 249/03 -5- 3. The 5th defendant in his separate written statement submitted that Ext.B1 document was executed by the 2nd plaintiff and her daughter Vimala in favour of defendants 1 to 3. Subsequently, those defendants executed Ext.B2 in favour of the 5th defendant in respect of 10 ½ cents. The 5th defendant was put in actual possession and enjoyment of the property covered by Ext.B2. The 5th defendant is a bona fide purchaser for value. The dispute between plaintiff and defendants 1 to 3 will not affect the interest of the 5th defendant in his property. Ext.A1 is a document executed to avoid Ext.B1 and the same is not valid. The business relationship between defendants 1 to 3 and the first plaintiff is denied. The allegations in the writ statement of the second defendant against the first defendant are reiterated. The 5th defendant is a bona fide purchaser for value. The 5th defendant has never visited the 1st defendant's house or demanded any payment from the defendants. The 5th defendant who is in possession of the property covered by AS.N0. 249/03 -6- Ext.B2 has never made any attempt to trespass. By order in I.A.2298/99 the written statement of the 5th defendant was amended and a counter claim was raised for recovery possession of 10 ½ cents from the plaintiffs on the strength of the 5th defendant's title. Amendment was allowed accepting the allegation that the plaintiffs trespassed into the property covered by Ext.B2 on 28-6-1994 pending suit. Answering the counter claim a replication was filed by the plaintiffs. It was contended that the counter claim is not liable to be decreed since the 5th defendant had not obtained valid title. 4. The learned Sub Judge formulated the following issues for trial. 1. Whether the suit is maintainable in law? 2. Whether the plaintiffs are entitled to get a permanent prohibitory injunction as prayed for in the suit? 3. Whether the 5th defendant is entitled to recover possession of property covered by document No.1413/94 of SRO Mala? AS.N0. 249/03 -7- 4. Whether the 2nd defendant is entitled to possess and enjoy 7 ½ of property covered by document No.5266/85 SRO Mala? 5. Reliefs & costs? At trial the evidence consisted of the oral testimony of PW- 1, second plaintiff and Exts.A1 and A2 on the side of the plaintiffs. On the side of the defendants the same consisted of oral testimonies of DW-1, the 5th defendant and DW-2, the Taluk Surveyor who prepared Ext.C-4 plan and Exts.B1 to B4. B3 is tax receipt and B4 is certified copy of settlement deed No. 888/81 a document subsidiary to Ext.B1. The court exhibits in the case consisted of Exts.C1 Commissioner's report, C2 rough plan, C3 another commission report and Ext.C4 survey plan. 5. After evaluating the evidence the learned Subordinate Judge answered issue No.1 holding that the suit is not maintainable in law. The learned Subordinate Judge has accepted the case of the contesting defendants that the AS.N0. 249/03 -8- plaintiffs' case was that Ext.B1 was executed only towards security for the amounts due from the plaintiffs and that at the time of execution of B1 itself there was a parole agreement that on discharge of the debts the property will be re-conveyed. The learned Subordinate Judge applied the ratio of the judgment of this Court in Moosa v. Moideen, 2001(1) KLT 183 and held that the remedy available to the plaintiffs is to sue for specific performance of the parole agreement. Learned Judge further held that the relief of specific performance has already become time barred and accordingly held that the present suit which is one simplicitor for injunction is not maintainable. Issue Nos. 2 to 4 were considered together by the learned Sub Judge. Under these issues it was noticed that absolutely no evidence had been produced by the plaintiffs to prove their case that defendants 1 to 3 were employed under him or to show that the first plaintiff was a business man. It was however also noticed that defendants 1 and 3 have not AS.N0. 249/03 -9- raised any contest in the suit and that the second defendant had not come forward to pursue her contest. However, the court noticed that the contentions raised by the second defendant had been virtually endorsed by the 5th defendant and would accept the contentions of the 5th defendant on the basis of the evidence adduced by him as DW-1. The survey number discrepancy in Ext.B1 was noticed by the court, but the learned Judge was impressed by the report of the commissioner who had identified the property on the basis of a measurement conducted with the assistance of the Surveyor. It was accordingly held that the survey number discrepancy will not affect the 5th defendant's interest on property covered by Ext.B2. The learned Subordinate Judge practically accepted the plaintiffs' case that they are having possession of the properties, but according to the learned Judge the same is not sufficient since execution of Ext.B1 has been admitted no documents have been produced by the plaintiffs to prove that they are having title over the AS.N0. 249/03 -10- plaint schedule property. On the basis of that finding the learned Judge went on to hold that the 5th defendant is a bona fide purchaser for value in respect of the property covered by Ext.B2 and and that his counter claim is liable to be upheld. Thus holding that the 5th defendant is entitled for relief, the learned Judge also held that the other defendants are not entitled for protection from court for keeping the property covered by Ext.B1 excluding the property covered by Ext.B2. Despite that view the learned Judge did not become inclined to grant the relief of injunction even against the other defendants. This was on the reason that the plaintiffs did not adduce any independent evidence for establishing their cause of action and much less any documentary evidence. The circumstance that the plaintiff did not approach the police is also highlighted by the learned Judge to decline relief to the plaintiffs despite his finding that defendants other than the 5th defendant do not have any right over the plaint schedule AS.N0. 249/03 -11- property remaining with the plaintiffs. Ultimately the suit was dismissed and counter claim was decreed. The claim for mesne profits was disallowed. 6. Sri.G.Sreekumar (Chelur), learned counsel for the appellant, Sri.K.G.Balasubramanian, learned counsel for the 5th respondent who alone is contesting the appeal addressed me extensively. Sri.Sreekumar would argue that the learned Sub Judge was not justified in concluding that the case pleaded by the appellants was similar to the plaintiff's case in the case decided by this court in Moosa's case (2001 (1) KLT 183. In this context the learned counsel would read out paragraphs 2 and 3 of the plaint and submit that plea is that Ext.B1 is a sham document which was never intended to be acted upon and was not as a matter of fact acted upon. The learned counsel would draw a distinction between sham documents and forged documents. According to the learned counsel, in sham documents the execution of the document is admitted, but the purpose of AS.N0. 249/03 -12- execution is not admitted. But in forged documents the purpose is admitted, but execution of the document is not admitted. Counsel then drew my attention to IA. No. 3390 of 2008 which had been filed by him under Order 41, Rule 27. Counsel submitted that the three documents produced along with the I.A. will establish that there was a creditor debtor relationship between the first plaintiff and defendants 1 to 3. Counsel requested that these documents be admitted to evidence or that the suit be remanded to the trial court, so that the plaintiffs will get an opportunity to put these documents in evidence. Paragraphs 1 to 4 and paragraph 7 of the judgment of P.K.Balasubramanyan, J. (2001(1) KLT 183 was read over to me by Mr.Sreekumar to argue that the facts of the present case has no comparison with the facts in that case. The learned counsel would cite the judgment of the Supreme Court in Bhagwati v. Chandramaul, AIR 1966 SC 735 and submitted that if a party asks for a relief on a clear and specific ground and in AS.N0. 249/03 -13- the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. Counsel submitted on the basis of the very same judgment that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. Mr. Sreekumar referred to paragraph 4 of the judgment of the Supreme Court in Guruswamy Nadar v. P.Lakshmi Ammal, 2008(2) ILR (Kerala) 473 and also section 52 of the Transfer of Property Act and submitted that doctrine of lis pendens will AS.N0. 249/03 -14- apply even to subsequent bona fide purchaser for value without notice. Ext.B1, according to the learned counsel, has to go and the learned counsel would explain the reason for non production of the document to prove a debtor creditor relationship between appellant and defendants 1 to 3. Counsel referred to the documents produced along with the application under order 41 rule 27. Counsel submitted that at any rate, there is no justification for not granting decree of injunction against defendants other than the 5th defendant who alone has seriously contested the suit attempted to pursue the contentions raised in the written statement. 7. Sri.K.G.Balasubramanian, counsel for the 5th defendant referred to Ext.B4 dated 16-3-1981 and B1 dated 12-12-1985. He submitted that Ext.A1 settlement deed relied on by the plaintiffs is executed on 4-8-1992 suppressing Exts.B1 and B4. Ext.A1 cannot have the effect of conferring any title on the plaintiffs. My attention was AS.N0. 249/03 -15- drawn by Mr.Balasubramanian to the oral evidence adduced in this case. 8. I have anxiously considered the rival submissions in the light of the pleadings raised by the parties and the evidence which came on record before the court below. Considering I.A. No. 3390 of 2008, the application filed by the appellant under Order 41 rule 27 CPC I am of the view that the implication of the two documents produced along with the I.A. should be gone into by the trial court. Hence I allow I.A. No. 3390 of 2008 and mark the documents on the side of the appellants plaintiffs as Exts.A3, A4 and A5 and transmit the documents to the court below. According to me the question whether a decree of injunction is liable to be passed in the suit, against the defendants other than the 5th defendant should be reconsidered by the court below in the light of the evidence already on record and the additional evidence received in evidence as Exts. A3 to A5. Since the learned Subordinate Judge declined relief against AS.N0. 249/03 -16- the non-contesting defendants also on the reason that the evidence adduced by the plaintiff is not satisfactory to establish a cause of action for the plaintiff against those defendants, the Subordinate Judge is directed to permit the plaintiffs to adduce further evidence for substantiating the cause of action which is alleged in the suit and was attempted to be proved by PW-1. At the same time, I am of the view that the decree for recovery now passed in favour of the 5th defendant is only to be sustained. I am not persuaded on the submissions of Mr. Sreekumar to hold that under Ext.B3 the 5th defendant has not acquired any right on the property covered by the document – the red coloured portion in Ext.C4 plan. I find merit in the submission of Mr.Balasuabramanian made in the context of Ext.B3 and accordingly I confirm the decree for recovery passed in favour of the 5th defendant under the impugned judgment. 9. The result is that the judgment and decree of the court below will stand set aside to the extent it declines AS.N0. 249/03 -17- injunction sought for by the plaintiff in respect of the plaint schedule properties excluding the property covered by Ext.B3. The suit will go back to the trial court to consider the question of passing decree against defendants other than the 5th defendant. The trial court will permit the plaintiff to adduce further evidence for substantiating the cause of action alleged against the defendants other than the 5th defendant. Exts.A4 and A5 are transmitted to the court below and they will form part of the evidence on the side of the plaintiff. The learned Subordinate Judge is directed to take fresh decision as directed above at the earliest and at any rate within 5 months of receiving copy of this judgment. Refund the full court fee paid on the appeal memorandum to the counsel for the appellant. (PIUS C.KURIAKOSE, JUDGE) ksv/- AS.N0. 249/03 -18- PIUS C.KURIAKOSE, J. A.S. No. 249 of 2003 JUDGMENT 5th May, 2009