IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 RSA.No. 1268 of 2009() ---------------------- AS.186/2003 of II ADDL.SUB COURT,KOZHIKODE OS.456/1998 of ADDL.MUNSIFF COURT-II,KOZHIKODE .................... APPELLANT/PLAINTIFF --------------------------------------- VADAKKEDATH V.UNNIMADHAVAN NAIR, 58 YEARS, S/O.LAKSHMIKUTTY AMMA, SREENILAYAM, VELLAYIKKODE DESOM, KOZHIKODE. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENTS/ DEFENDANTS ------------------------- 1. PULIYANGAL DAMODARAN, 65 YEARS, S/O.KUTTAN, PULIYANGAL HOUSE, KANMPARAMBA DESOM, KOZHIKODE. 2. THAYYIL THODUKAYIL MANJATHI @ MADHAVI, 79 YEARS, POOLAKKODE AMSOM DESOM, KOZHIKODE. ADV. SRI.N.SUBRAMANIAM FOR R1 SRI.M.S.NARAYANAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1268 of 2009 --------------------------------------- Dated this 19th day of January, 2010 JUDGMENT Respondent No.1 appears through counsel. 2. This second appeal arises from judgment and decree of learned Second Additional Sub Judge, Kozhikode in A.S.No.186 of 2003 reversing judgment and decree granted by learned Munsiff-II (Additional), Kozhikode in O.S.No.456 of 1998. 3. Appellant sued deceased respondents and deceased defendant No.1 for a decree for prohibitory injunction against trespass into the suit property. His case is that the property originally belonged to Cherukat Visalakshi Amma from whom he got an oral entrustment. Pursuant to that, he effected improvements in the suit property and is managing the temple situated in it. While so he purchased the right of Visalakshi Amma as per Ext.A1, assignment deed dated 20-07-1996. Alleging that deceased defendant No.1 and respondent No.1 are attempting to trespass into the suit property, appellant sought decree for prohibitory injunction. Respondent No.2 was impleaded as defendant No.3 during pendency of the suit. Deceased defendant No.1 and respondent No.1 disputed the title and possession claimed by the appellant and the derivation of the title pleaded by him. According to them assignor of appellant had no right or possession of the suit R.S.A.No.1268 of 2009 2 property. The temple in the suit property and the 1½ acres attached to it belonged to the Mukkuva community. The said property and the temple are being managed by the members of that community. At the time of suit deceased defendant No.1 and respondent No.1 were managing the properties and the temple. Trial court found that appellant has possession of the suit property and granted decree as prayed for. Respondent No.1 (after the death of deceased defendant No.1) challenged the judgment and decree before the first appellate court. The first appellate court found that plaint schedule descriptions do not suite the descriptions in Exts.A1 and A2, there is no evidence that appellant was having right or enjoyment of the suit property, deceased defendant No.1 and respondent No.1 were in possession and management of the property and in that view, allowed the appeal. Judgment and decree of the trial court were set aside and the suit was dismissed. That is under challenge in the second appeal urging by way of substantial questions of law whether the right of worship in a private temple granted by the owner of the property to others will amount to dispossession of the owner from the property and whether production of title deed by the owner of the property showing extent is sufficient to hold that the title holder is the owner of the property. It is contended by learned Senior Advocate appearing for the appellant that the finding of the first appellate court regarding possession is not R.S.A.No.1268 of 2009 3 correct and that there was really no dispute regarding identity of the property. It is also contended by learned counsel that at any rate, first appellate court need not have gone into the title of the appellant since the suit is merely for injunction. Learned counsel appearing for respondent No.1 would contend that the finding of the first appellate court is based on evidence and does not require interference as no substantial question of law is involved. 4. The suit is merely for injunction and as such, what the courts below were concerned is only regarding possession of the property. Though respondent No.1 and deceased defendant No.1 disputed title claimed by the appellant, the latter did not pay court fee under section 27(a) of the the Kerala Court-Fees and Suits Valuation Act, 1959. May be, in cases where possession of the property cannot be proved by other evidence such as in the cases of vacant land, it is possible to refer to the title also to decide the question of possession. When complicated questions of title are involved the proper course is to leave that matter to be decided in a comprehensive suit as held in Anathula Sudhakar Vs. P. Buchi Reddy (2008 (4) SCC 594). So far as the present case is concerned, this is not a case where it was necessary to address on the title claimed by the parties as the question of possession claimed by the contestants could be decided by the evidence on record. R.S.A.No.1268 of 2009 4 5. So far as claim of possession made by the appellant is concerned, it is true it is stated in the plaint that there is a temple in the suit property which is being managed by the appellant. But, the first appellate court has pointed out from Exts.A1 and A2 that there is no reference in those documents to any temple or other structure in the suit property. The first appellate court observed that as per Ext.C1, report of the Advocate Commissioner there was no cultivation in the suit property and instead, it presented wild growth with several banyan trees. Commissioner also found that there were several structures in the suit property where deities and sub deities were installed. Report of the Advocate Commissioner revealed that poojas were being performed in the suit property. It is revealed that notwithstanding that deceased defendant No.1 and respondent No.1 denied title and possession claimed by the appellant and even identity of the suit property vis-a-vis the documents of title relied by the appellant, the latter did not attempt to take out a commission to identify the property. It is seen that respondent No.1 filed I.A.No.841 of 1999 for the appointment of an Advocate Commissioner but that application was stoutly opposed by the appellant. The Commissioner has reported that access to the structures in the suit property was provided for him by respondent No.1 while the appellant had to keep outside on the road. He could not even enter the suit property. The R.S.A.No.1268 of 2009 5 other documents produced by the appellant to prove possession are Exts.A3 and A4, receipts for payment of revenue. That according to the first appellate court was not sufficient to prove possession claimed by the appellant. Apart from the interested version of appellant as PW1 there is no other evidence to show that he is in possession and enjoyment of the suit property. First appellate court also found that though in Ext.A1, jenm assignment deed executed by Visalakshmi Amma in favour of appellant there is reference to Visalakshi Amma getting title and possession of the property as per a document executed by her father, that document was not produced. On the side of respondent No.1, he gave evidence as DW1. DWs.2 to 5 are examined to show that it was deceased defendant No.1 and respondent No.1 who, on behalf of the Mukkuva community were managing the temple in the suit property. They also produced Exts.B1 to B11 and X1. True, all those documents except Ext.B1 were procured after the institution of the suit. On the evidence on record, first appellate court found that finding of learned Munsiff that appellant is in possession of the suit property cannot be sustained and that evidence reveal that possession of the suit property remained with deceased defendant No.1 and respondent No.1 for and on behalf of the members of the Mukkuva community. That finding is based on the evidence on record and on a proper appreciation of such evidence R.S.A.No.1268 of 2009 6 which in my view does not involve any substantial question of law. 6. Learned Senior Advocate appearing for the appellant submits that the first appellate court need not have entered into finding on title. It is not disputed that there is no prayer for declaration of title and there is no payment of court fee under section 27(a) of the Court Fees Act. Hence, any enquiry into or finding on title was not warranted. Learned counsel for respondent No.1 would contend that in fact there is no finding on title as such and what is contained in the judgment under challenge is only a reference to the right claimed by the appellant which was necessary for a decision on the issue regarding possession. I make it clear that any finding or observation made by the first appellate court on title claimed by the appellant was not necessary or warranted and that the decision of the first appellate court is limited to the issue of possession of the suit property. No substantial question of law is involved in the second appeal. Hence, with the observations made above it is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/