RSA No. 879 of 2012 · Kerala High Court

BY ADVS.SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 2 AND 4: --------------

PAZHANISWAMI, S/O.LATE THIMMAYYAKOUNDER, MATTANATHUKADU, KOTTATHARA VILLAGE, KOTTATHARA POST, MANNARKKAD TALUK, PIN-678581.

RANGAMMAL W/O.LATE THIMMAYYAKOUNDER, MATTANATHUKADU, KOTTATHARA VILLAGE AND POST, MANNARKKAD TALUK, PIN-678581.

SAVITHRI AMMAL, D/O.RANGAMMAL, MATTANATHUKADU, KOTTATHARA VILLAGE AND POST, MANNARKKAD TALUK, PIN-678581.

RAJAMMAL, D/O.RANGAMMAL, MATTANATHUKADU, KOTTATHARA VILLAGE AND POST, MANNARKKAD TALUK, PIN-678581. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A. No.879 of 2012 -------------------------------------- Dated this the 3rd day of September, 2012. JUDGMENT The 3rd defendant in O.S.No.102 of 2007 of Munsiff-Magistrate's Court, Mannarkkad is aggrieved by the decree for prohibitory injunction granted in that suit as confirmed by Sub Court, Ottapalam in A.S.No.149 of 2008.

2. Appellant, 1st respondent/plaintiff and respondents 3 and 4/defendants 2 and 4 are the children of the 1st defendant. The suit property originally belonged to one Narayanan as per purchase certificate No.27 of 1977 issued from the Land Tribunal, Agali (Ext.A4 is the notary attested copy of that purchase certificate). Later that property was purchased by the 1st defendant as per Ext.B1, assignment deed No.5724 of 1984. According to the 1st respondent/plaintiff, the 1st defendant transferred that property to him as per Ext.A1, settlement deed No.5293 of 1986 dated 26.11.1986. He claimed to be in possession of the said property and produced Exts.A2 series and A5 series to show payment of revenue and Ext.A3, possession certificate dated 05.06.2007. He alleged that the appellant/3rd defendant and other defendants are attempting to trespass into the suit property and hence prayed for a decree for prohibitory injunction. RSA No.879/2012 2

3. The defendants denied that the 1st respondent/plaintiff is in possession of the suit property. They also denied that the 1st defendant executed Ext.A1, settlement deed in favour of the 1st respondent/plaintiff. They claimed that the 1st defendant continues to be in possession and enjoyment of the suit property. They claimed that the 1st defendant would be taking steps to cancel Ext.A1 fraudulently created by the 1st respondent/plaintiff.

4. The trial court observed that since the suit is merely for prohibitory injunction based on possession, it is not necessary to go into the title claimed by the parties. The 1st respondent had filed an application for amendment of plaint to pay court fee under Sec.27(a) of the Court Fees and Suits Valuation Act. But, that application was dismissed for the reason that the suit is merely for prohibitory injunction. The trial court on evidence found that the 1st respondent is in possession of the suit property and accordingly granted a decree for prohibitory injunction. That judgment and decree are confirmed by learned Sub Judge. Hence the Second Appeal.

The learned counsel contends that the report of the Advocate Commissioner would show the nature of cultivation in the suit property and which would negative the plea of 1st respondent/plaintiff regarding possession. It is also contended that the due execution of Ext.A1 is not proved. RSA No.879/2012 3

It is relevant to note that in the pleadings appellant and other defendants claimed that 1st defendant had not executed any such document like Ext.A1 but, claimed that 1st defendant would be taking steps to cancel Ext.A1 (allegedly) fraudulently created by the 1st respondent. I must also notice that the suit is merely for prohibitory injunction based on possession claimed by the 1st respondent and hence it is not necessary for the courts below to go into the title claimed by parties as rightly observed by the courts below as well.

The report submitted by the Advocate Commissioner was not marked in evidence. But, for the purpose of deciding identity of the suit property the trial court has referred to that report. Appellant/3rd defendant when examined as DW1 admitted in cross examination that at least as on the date of the examination 1st respondent/plaintiff was in possession of the property. Nothing is brought on record to show that the 1st respondent took possession of the property pending the suit. On the other hand, Exts.A2 series and A5 series and Ext.A3 revealed possession of 1st respondent in the property. According to the 1st respondent, he got possession of the suit property pursuant to Ext.A1. He also examined PW4, the attesting witness in Ext.A1 to prove due execution of that document. RSA No.879/2012 4

Courts below were impressed by the contention of the 1st respondent that he is in possession of the suit property and accordingly granted a decree for prohibitory injunction. It is relevant to note that 1st respondent who claims to be the owner in possession of the suit property has not preferred the appeal or the second appeal.