Kerala High Court
Idavoor Sreedharma Sastha vs Raveendra Babu on 10 August, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934
RSA.No. 526 of 2012 ()
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AS.83/2007 of SUB COURT,NEYYATTINKARA
OS.82/2006 of PRINCIPAL MUNSIFF COURT.,NEYYATTINKARA
APPELLANT(S)/RESPONDENT/PLAINTIFF:
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IDAVOOR SREEDHARMA SASTHA,
IDAVOOR SREEDHARMA SASTHA TRUST NO.432/1993,
REPRESENTED BY ITS PRESIDENT KESAVAN NAIR
S/O.MADHAVAN NAIR
RESIDING AT CHERU SREE RAMESWARAN IRUMBIL DESOM
NEYYATTINKARA VILLAGE.
BY ADV. SRI.R.T.PRADEEP
RESPONDENT(S)/APPELLANT/DEFENDANT:
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RAVEENDRA BABU
RESIDING AT PADMASREE BUNGLOW,PALADICHIRA
MANGALOTHUKONAM,KATTACHALKUZHI.
BY ADV. SRI.P.MARTIN JOSE
BY ADV. SRI.P.PRIJITH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
10-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A. No.526 of 2012
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Dated this the 10th day of August, 2012.
JUDGMENT
The plaintiff in O.S.No.82 of 2006 of the Principal Munsiff's Court, Neyyattinkara is aggrieved by the reversal of the decree he got by the Sub Court, Neyyattinkara in A.S.No.83 of 2007 to the extent it concerned item No.2 of the plaint schedule.
2. The plaint schedule concerns two items. According to the appellant, the said properties formed part of property which belonged to one Anantha Narayana Iyyer who executed a Will in favor of the mother of one Sankar. On the death of the legatee, the property devolved on the father of the said Sankar and on the father dying intestate, it devolved on Sankar. The said Sankar gifted the suit property to the appellant, a trust as per Ext.A1, dated 03.12.2005. Appellant claimed that it accepted and acted upon the gift. There was an earlier litigation as O.S.No.251 of 1991 (a copy of judgment and decree in that case are Exts.A2 and A5). That suit was dismissed for default. Appellant produced Ext.A3, unregistered lease deed which according to the appellant concerns item No.2 of the plaint schedule.
3. The trial court observed that Ext.A3, lease deed being unregistered cannot be looked into for any purpose. But, based on the other evidence it found that the appellant is in possession of item Nos.1 and 2 and granted a RSA No.526/2012 2 decree for prohibitory injunction. On appeal at the instance of the respondent, the judgment and decree of the trial court to the extent it concerned item No.2 were set aside while, that part of the judgment and decree concerning item No.1 was confirmed. The appellant is aggrieved and has preferred this second appeal.
4. The respondent has appeared through counsel.
5. The learned counsel for the appellant contends that the finding of the first appellate court to the extent it concerned item No.2 of the plaint schedule is not correct. The learned counsel has contended that item No.2 of the plaint schedule is identified by the Advocate Commissioner in the report and plan submitted. It is also the contention of the learned counsel that under provision of the Travancore Registration Act, Ext.A3 was not required to be compulsorily registered and that at any rate, even if it is assumed that Ext.A3 was compulsorily registrable, the said document could be admitted and looked into for collateral purposes such as a decision on possession of item No.2 and its nature. According to the learned counsel, the first appellate court was not right in reversing the judgment and decree of the trial court to the extent it concerned item No.2.
6. The learned Senior Advocate for the respondent has contended that the report and plan submitted by the Advocate Commissioner show that item No.2 of the plaint schedule is not even identified. It is pointed out by the RSA No.526/2012 3 learned Senior Advocate that while in the plaint schedule, item No.2 is described as 15 cents and excess, the Advocate Commissioner has found the extent as 25.712 cents (10.41 Ares) which is far in excess of the extent described by the appellant in the plaint schedule. It is pointed out by the learned Senior Advocate that over a portion of the property described in the plaint schedule and shown by the Advocate Commissioner in the plan, the respondent is claiming title and possession as per Ext.B1. In the above circumstances, the first appellate court was correct in reversing the judgment and decree of the trial court to the extent it concerned to item No.2 of the plaint schedule, it is argued.
7. For whatever reason it be, the report and plan prepared by the Advocate Commissioner are not exhibited in evidence. All arguments are based on the said report and plan which ofcourse formed part of record of the trial court. It is seen from the judgment of the courts below that the Advocate Commissioner identified item No.2 as 'HIJKLMNOPQRSTUVWX' plot. The total extent of that plot was found to be 25.712 cents (10.41 Ares). In the plaint schedule, item No.2 is described as 15 cents (6.47 Ares) and excess comprised of 1.47 Ares in re-survey No.167/9 and 4.60 Ares in re-survey No.167/20. Going by that description, the total extent excluding the excess claimed by the appellant is described as 6.07 Ares. But in the plaint schedule item No.2 the extent stated as 6.47 Ares. In the report and plan submitted by the Advocate Commissioner, the extent of item No.2 is 10.41 Ares. The Advocate Commissioner has also reported that there was no specific boundaries for item No.2 unlike in the case of RSA No.526/2012 4 item No.1. It is in these circumstances that the first appellate court has reversed the finding of the trial court as to possession claimed by the appellant over item No.2 of the plaint schedule.
8. In the circumstances above stated, I do not find any substantial question of law involved in the judgment and decree of the first appellate court to the extent it concerned item No.2 of the plaint schedule.
9. But, I must notice that since the suit was merely for prohibitory injunction and there was no counter claim over item No.2 made by the respondent based on Ext.B1, there was no occasion or necessity for the courts below to go into the title claimed by the parties over item No.2. The question whether on the arguments the learned counsel for appellant has raised, Ext.A3 could be admitted in evidence and at any rate, could be used for collateral purposes is also a matter which I think has to be left open to be decided in appropriate proceedings. If the respondent has a case that Ext.A3 is not genuine, that question also can be gone into such proceeding. Hence the finding entered by the courts below as to the acceptability and admissibility of Ext.A3, be it on the contention raised by the respondent as to genuineness or, whether the said document is compulsorily registrable and at any rate, even if it is so, it could be used for collateral purposes are left open for deciding in appropriate proceedings.
RSA No.526/2012 5
10. The learned counsel for the appellant submitted that the appellant intends to file suit on title so far as item No.2 of the plaint schedule is concerned. I make it clear that if any such suit is instituted concerning plaint schedule item No.2, the findings entered by the courts below as regards item No.2 shall be treated as tentative for the disposal of the present litigation alone and shall not be binding on the parties in the fresh suit that may be instituted so that the parties will be free to contest all those issues.
11. The learned counsel for the appellant requested that there may be a direction to maintain status quo with respect to the plaint schedule item No.2 for some time so that it is open to the appellant to file a fresh suit concerning item No.2 on time and seek interim relief.
12. Having heard the learned counsel on both sides I am inclined to issue a direction regarding item No.2 of the plaint schedule as well.
Resultantly, the second appeal is dismissed with the following directions:
i. In case the appellant files a suit on title concerning item No.2 as provided under law, it is directed that the findings entered by the courts below as regards item No.2 and the acceptability and admissibility of Ext.A3 shall be treated as tentative for the decision of O.S.No.82 of 2006 and the appeals arising therefrom and shall not preclude the parties from agitating all those questions in the fresh suit that may be instituted. RSA No.526/2012 6
ii. So far as the plaint schedule item No.2 is concerned, the parties are directed not to do any act in the said property affecting its present lie, condition and boundaries or, make improvements including construction of structures or commit waste therein for a period of two months from this day.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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