Kolladath Thamasikkum Unnikutty'S Son ... vs Kozhambrath Gopalan

[Cites 9, Cited by 0]

Kerala High Court

Kolladath Thamasikkum Unnikutty'S Son ... vs Kozhambrath Gopalan

S.A.No.414/97 was filed by the plaintiffs in O.S.No.556/86 on the file of the Additional Munsiff Court, Kozhikode, while S.A.No.309/97 was filed by the defendants 5 to 9 in O.S.No.178/88 on the file of the same court.

2. The suit O.S.No.556/86 filed by the appellants in S.A.No.414/97 for a declaration that the decree and judgment in O.S.No.434/82 on the file of the Sub Court, Kozhikode is not binding on the plaintiffs and the plaint schedule properties and for consequential injunction restraining defendants 1 to 5 from proceeding with the final decree proceeding in O.S.No.434/82 with following allegations:

The plaintiffs and defendants are the members of an ancient family by name Kozhambrath of Kuruvattoor Village of Kozhikode Taluk and they are followers of Makkathayam law modified by custom and it is a undivided joint family. A schedule to the plaint is the genealogy of the family and item No.1 of B schedule belongs to the joint family in jenmom and they are in joint possession and enjoyment of the same. The S.A. Nos.309 & 414 of 1997 2 property stood in the name of deceased Kozhambrath Pachutty, Chekutty and Kelukutty, who are the predecessor-in- interest of plaintiffs and defendants. After the death of the above said persons, the properties stood in the name of Kozhambrath Raru, Unnikutty and Kannan. Item No.2 of the plaint B schedule property belonged in Jenmon to Chathan Kirath tarwad and same was given to Kozhambrath family about 100 years back on Tharikuthi right. They have been in possession of the family as the joint family property of Kozhambrath family. There are family temples in the property namely, Kariyathan, Kuttichattan,Gurumoorthi etc. in item No.1. The properties were dedicated to the temples by the family members more than 90 years. Items No.2 contains the burial ground, Nagathankotta and a Mandapam. It is being used by the members of the family and it has acquired the characteristic of an endowed property. Several functions were being preformed annually in both the items. Several persons of the family died and their bodies were cremated in the common burial ground of items No.2 of B schedule. As per the custom, the senior most male member of the family has to manage the properties belonging to the endowment. If the S.A. Nos.309 & 414 of 1997 3 senior most male member of the family on account of his ill health or for other similar reasons, was unable to look after the properties, the next senior most member of the family has to manage the affairs of the temples. The 40th plaintiff is the senior most male member of the family now. On account of his ill health and sickness, he was unable to manage the properties and he was being assisted by the 1st plaintiff and the 3rd defendant to manage the properties. Since these properties were dedicated to the temple by the family members and being enjoyed as a trust property, it is not liable to be partitioned. The 4th defendant is the widow of deceased Pachukutty. Defendants 1 to 3 and 5 are the children of the 4th defendant. The 1st defendant's wife and children are defendants 6 to 9. Defendants 10 to 15 are the wife and children of the 2nd defendant. All the other parties are the members of Kozhambrath family. Defendants 1 and 2 had filed a suit against defendants 3 to 5 as O.S.No.434/82 in the Sub Court, Kozhikode for partition of item No.1 of the plaint B schedule property and certain other items of properties which were not the subject matter of the present suit. A preliminary decree for partition was passed and final decree application S.A. Nos.309 & 414 of 1997 4 had been filed and that was pending at the time of filing the suit. The suit was filed by the plaintiffs in that case in collusion with the defendants there. The decree passed therein is not binding on the plaintiffs and the properties. It is obtained as a result of fraud and collusion. The 40th defendant had cut and removed jack tree worth Rs. 4,000/- from item No.1 on 16.09.1986. He came to know about the same only later. The plaintiffs came to know about the pendency of the final decree proceedings, when the commissioner in that case inspected the property for effecting partition as per the preliminary decree obtained and at that time they objected the partition of the property. So the plaintiffs have no other remedy except to approach the court for a declaration that plaint B schedule properties belonging to Kozhambrath family, that they are the properties belonging to a private trust and that they are not liable to be partitioned and the decree of the Sub Court, Kozhikode in O.S.No.434/82 is not binding on the plaintiffs and the properties and also for consequential injunction restraining defendants 1 to 5 in that suit from proceeding with the final decree proceedings in O.S.No.434/82 of Sub Court, Kozhikode.

S.A. Nos.309 & 414 of 1997 5

3. Defendants 1, 2, 6 to 12, 19, 23, 26, 31, 45 and 51 have filed joint written statement contending that the suit is not maintainable. The plaint A schedule does not represent the genealogy of the family of Kozhambrath as claimed by the plaintiffs. Item Nos.1 and 2 are not joint family properties as alleged and plaintiffs are not the members of the joint family. Plaintiffs 1 to 26 who are the legal representatives of Chekutty, are not entitled to contend the suit properties are not amenable for partition as they are bound by the decree obtained in O.S.No.23/1890 of the District Munsiff Court, Kozhikode, by which their predecessor interest was not granted any share and his share was obtained by an auction purchaser in S.C.No.31/1887. The decree holder who purchased the share of the Chekutty had sold the same to Achuthan and others. They filed O.S. No.23/1890 for partition of their share, which they obtained on the basis of the assignment of the share of Chekutty. The allegation that items Nos.1 and 2 are dedicated by the family to the temple and it is being enjoyed as a endowment etc. is not correct. Items No.1 of B schedule belongs to defendants 1 to 5 and they are in possession of the property. The defendants also contended S.A. Nos.309 & 414 of 1997 6 that since 3rd defendant had lost his contention in O.S.No.434/82, the suit was filed at his instigation through the plaintiffs without any bona fides. Items No.2 is not a joint family property and as such the plaintiffs are not entitled to get the declaration and injunction as prayed for and they prayed for dismissal of the suit.

4. Defendants 58 to 68 filed joint written statement supporting the plaint allegations. On the basis of the pleadings, following issues were framed by the trial court for consideration.

1. Whether the suit is maintainable ?

2. Whether the valuation and the court fee paid is correct ?

3. Whether this court has pecuniary jurisdiction to entertain this suit?

4. Whether the plaint schedule properties are held under a trust and whether the plea of dedication for endowment is true ?

5. Whether the suit properties are partiable ?

6. Whether plaintiffs 1 to 26 have any right over the suit properties ?

7. Whether defendants 1 to 5, 17, 22, 26, 31, 40, 45 and 51 have perfected their title to the suit properties by adverse possession and limitation ?

8. Whether the plaintiffs are entitled to the declaration prayed for ?

9. Whether the injunction prayed for is allowable ?

10. Reliefs and costs ?

Addl. Issue No.11

11. Whether the plaintiffs are entitled to get any amount as damages from the 40th defendant ?

5. O.S.No.178/88 was filed by the defendants 1 and 2 in O.S.No.556/88 against some of the plaintiffs in O.S.No.556/86 S.A. Nos.309 & 414 of 1997 7 for injunction with following allegations.

The plaint schedule properties belong to the plaintiffs and defendants 1 to 4 and it originally belonged to their father. After his death, the property devolved their mother Ammukutty and her children, namely, plaintiffs and defendants 1 to 4. On 04.02.1988 Ammukutty died intestate and her right devolved the plaintiffs and the defendants 1 to 4. They filed O.S.No.434/82 before the Sub Court, Kozhikode for partition of the plaint schedule property and other items, which belonged to them jointly. Though defendants 1 and 2 contended that the properties were not partiable and it belonged to them, those contentions were rejected and preliminary decree for partition was passed. An application as I.A. No.1486/86 was filed by the plaintiffs in this case for passing final decree and that was pending. 1st defendant in this case caused defendants 5 to 9 and others to file a suit as O.S.No.556/86 for a declaration that the plaint schedule property as well as other items of properties were trust properties of Kozhambrath tarwad and for a consequential injunction to restrain the plaintiffs from proceedings with the execution of the decree. Defendants 5 to 9 attempted to trespass into the property S.A. Nos.309 & 414 of 1997 8 which prompted them to file suit for injunction restraining defendants 5 to 9 and others claiming through them from trespassing into the property and causing any obstruction for the peaceful enjoyment of the property by the plaintiffs and defendants 1 to 4.

6. Though defendants 1 and 4 entered appearance, they did not file any written statement. Defendants 2 and 3 remained exparte.

7. Defendants 5 to 9 filed written statement reiterating the contentions and claims made by them in the plaint O.S.No.556/86 claiming that the property is an endowed property in favour of the temple and as such the plaintiffs are not entitled to get any relief and prayed for dismissal of the suit.

8. On the basis of the pleadings following issues were framed by the trial court:

1. Whether the plaintiffs are in possession of the plaint schedule property ?

2. Whether the injunction prayed for is allowable ?

3. Whether the court fee paid is correct ?

4. Reliefs and costs ?

9. The two suits were tried jointly and the evidence was recorded in O.S No.556/86, Pws 1 to 3 were examined and S.A. Nos.309 & 414 of 1997 9 Exts.A1 to A11 were marked on the side of the plaintiffs. Second plaintiff in O.S. No.178/88 was examined as DW1 and Exts.B1 to B15 were marked on their side. Exts.C1 to C6 were also marked.

10. After considering the evidence on record, the trial court found that the plaintiffs in O.S.No.556/86 failed to prove that the plaint schedule properties are endowed properties of the temple and also found that they failed to prove that it is a trust property and as such they are not entitled to get any declaration and injunction as prayed and dismissed the suit. The court below also found that since the plaintiffs some of whom are defendants in O.S.No.178/88 were found to be not entitled for any relief in O.S. No.556/86 and their attempt to trespass into the plaint schedule property in O.S.No.178/88 which is the subject matter of O.S.No.434/82 of the Sub Court, Kozhikode, the apprehension of the plaintiffs in that suit was genuine and decreed the suit and granted injunction against defendants 5 to 9 and the persons claiming through them.

11. Dissatisfied with the same, defendants 5 to 9 in O.S.No.178/88 filed A.S.No.195/91 and the plaintiffs in O.S. No.556/86 filed A.S.No.199/99 before the District Court, S.A. Nos.309 & 414 of 1997 10 Kozhikode and the District Judge by a common judgment confirming the decree and judgment passed by the trial court in both the cases, dismissed the appeals. Dissatisfied with the same, the above second appeals were filed by the respective parties mentioned above.

12. While admitting the second appeals this Court had accepted the common substantial questions of law raised in both the appeal memorandum as substantial questions of law arose for consideration, which read as follows:

1. When the properties involved in the suit are dedicated to the joint family temples and other religious institutions and several religious functions being conducted therein by the members jointly, have not the courts below erred in granting an injunction restraining some of the members of the family from entering into the property ?

2. Whether the courts below have not erred in not presuming dedication of the plaint schedule properties as an endowed property from the long conduct of user by the family treating the property as endowed property ?

3. When both the parties have adduced evidence, conflicting evidence can be weighed to determine the existence of the endowment have not the courts below erred in holding that the burden of the proof is on the plaintiff ?

13. Since both these appeals arose out of common judgment based on common evidence, this Court is also disposing these appeals by a common judgment. For convenience sake, the status of the parties mentioned in S.A. Nos.309 & 414 of 1997 11 O.S.No.556/86 is taken as the status of the parties while considering the appeal.

14. Heard Sri.M.P.Sreekrishnan, learned counsel appearing for the appellants in both the appeals and Sri.T.Krishnanunni, Senior Counsel appearing for the contesting respondents in both the appeals.

15. The learned counsel for the appellants argued that the Commissioner's report Exts.C1 to C6 will go to show the existence of temple and shrines and also the existence of Upadevathas and Devasthanam and common burial ground in the plaint schedule properties and the documents produced by the appellants will go to show that it is a family property of Kozhambrath tarwad and it is being dedicated to the temple purpose and 40th plaintiff is being the senior most male member entitled to manage the properties and in his absence, the 1st plaintiff and 3rd defendant were assisting him in managing the affairs of the temple. The documents produced will go to show that annual festivals were being conducted in the property and on the basis of the evidence, it can be presumed that it was endowed for the purpose of family temple and it is impartiable. The decree in O.S.No.434/82 of S.A. Nos.309 & 414 of 1997 12 Sub Court, Kozhikode filed by some of the members alone is not binding on the family or the property. Further the courts below have simply accepted the decree in O.S.No.434/82 without going into the question as to who is in possession of the property before granting any injunction against the trespass. He had also argued that there is no specific denial in the written statement that the plaintiffs are not the members of the Kozhambrath tarwad and the plaint schedule property is not the property of the Kozhambrath tarwad. Admittedly, the plaintiffs 1 to 26 are the descendants of Chekutty, one of the members of the family evidenced by Ext.B1 decree and as such they cannot deny the right of the plaintiffs. He had also relied on the decision reported in Achutha Menon v. Jaganatha Menon and Others (1983 KLT 939) in support of his case.

16. On the other hand, the learned senior counsel appearing for the contesting respondents submitted that the evidence of PW1 will go to show that he is a tool in the hands of 3rd defendant, who is the 1st defendant in O.S.No.434/82 of the Sub Court, Kozhikode, where he had contended that it is his own property and when he lost that contention, he had now S.A. Nos.309 & 414 of 1997 13 made the plaintiffs in O.S.No.556/86 to file the suit to defeat the right of the plaintiffs in O.S.No.434/82 to enjoy the decree obtained in O.S.No.434/82 of the Sub Court, Kozhikode. The evidence of PW1 will go to show that the genealogy mentioned is not correct and he had no idea about the family members and there was no evidence to show that there was a common ancestor who acquired the property with a common fund, so as to infer existence of joint family property as claimed by the plaintiffs. He had also argued that if the plaintiffs are not entitled to get any relief as claimed, the courts below were perfectly justified in granting the injunction as prayed for by the plaintiffs in O.S.No.178/88 and the concurrent findings of the courts below do not call for any interference. He had relied on the decision reported in State of Bihar and Others v. Sri.Radha Krishna Singh and others (AIR 1983 SC 684) in support of his case. He had also argued that unless it is proved by the plaintiffs that there was a joint family property and by virtue of dedication a trust or endowment has been created, no endowment or trust can be presumed. There is no such evidence available in this case. So according to the learned senior counsel, the courts below were perfectly S.A. Nos.309 & 414 of 1997 14 justified in dismissing the suit filed by the appellants and decreeing the suit filed by the contesting defendant.

17. The case of the plaintiffs in O.S.No.556/86 and defendants 5 to 9 in O.S No.178/88 was that the plaint schedule properties belonged to Kozhambrath family which is a undivided joint family and these properties were dedicated as endowment as a private trust for the purpose of the management of the temple situated in the property. The decree obtained in O.S.No.434/82 of the Sub Court, Kozhikdoe is not binding on them or the family members and the properties and for injunction restraining the defendants from proceeding with the final decree proceeding in O.S.No.434/82 of the Sub Court, Kozhikode.

18. On the other hand, case of the contesting defendants in both the cases was that it was never a endowed property and the genealogy mentioned is not correct and the plaintiffs are not the members of Kozhambrath family and as such they are not entitled to get any relief.

19. Admittedly, the properties originally belong to Kelu, Chathutty, Pachutty, Chekutty and Kelukutty, Rarukutty and Rarichan, out of whom Chekutty is the predecessor-in- S.A. Nos.309 & 414 of 1997 15 interest of plaintiffs 1 to 26 in O.S. No.556/86. It is seen from Exts.B1 and B2 decree and judgment in O.S.No.23/1890 that Achuthan and others filed the suit for partition of plaint schedule properties of which item No.1 of the plaint schedule of O.S. No.556/86 is one of the items for allotting of their 1/6th share, which they obtained by an assignment by one Kunjambu who obtained that right by sale of 1/6th share of Chekutty the predecessor-in interest of plaintiffs 1 to 26 in the above case in S.C.No.31/1887. It was also not in dispute that the suit was decreed and the decree declaring 1/6th share of plaintiffs in O.S.No.23/1890 was granted and thereby in that suit it was held that 5th defendant in that suit namely Chekutty who is the predecessor-in-interest of plaintiffs 1 to 26 was not entitled to any share as his share has been auctioned in execution of the decree in S.C.No.31/1887 which was purchased by the predecessor-in-interest of the plaintiffs in O.S.No.23/1890. So it is clear from that predecessor-in- interest of plaintiffs 1 to 26 in O.S.No.556/86 is not having any right in the property and as such they are estopped from now contenting that it is a joint family property and they are entitled to get declaration as prayed for in the suit. S.A. Nos.309 & 414 of 1997 16

20. The dictum laid down in the decision reported in Achutha Menon v. Jaganatha Menon and Others (1983 KLT 939) that undivided share of the member of the tarwad is not alienable is not applicable to the facts of this case as the decree in O.S.No.23/1890 had become final and that cannot be reopened after long lapse of time as the decree in that suit has not been challenged by the predecessor-in-interest of plaintiffs 1 to 26 in O.S. No.556/86 and such contention was also not raised in that suit even if such a contention is raised that was rejected and the decree against him was passed and that is binding on his successors and they are not entitled to reopen the same. They had no case that the decree in O.S.No.23/1890 was obtained by fraud or misrepresentation and that is not binding on the family. Such a contention is not raised in the suit as well. So under circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiffs 1 to 26 in O.S.No.556/86 are not entitled to get any share in the property and they are not entitled to get the decree as claimed as well.

21. As regard the plaintiffs in that suit is concerned, except the evidence of PW1, there is no other evidence S.A. Nos.309 & 414 of 1997 17 adduced to prove that they are the members of the Kozhambrath tarwad. Even assuming that the plaint schedule properties belonged to Kozhambrath tarwad, unless it is proved by the plaintiffs that they are the members of the tarwad, they are not entitled to claim any relief. The evidence of PW1 will go to show that he had no knowledge about the formation of the tarwad and members of the tarwad. He had also admitted that the plaintiffs in O.S.No.434/82 of Sub Court, Kozhikode were not residing in the family property and almost all the members are having their own independent property and they are residing in that properties and they have got their own burial ground in their own properties and they are not using the plaint item No.2 as the burial ground as well. Further he had also admitted that he did not know how many sagas are there in Kozhambrath tarwad and whether they have got any joint family property in existence so as to claim right in the property.

22. In the decision reported in Gangabai and Ors. v. Fakirgowda Somaypagowda Desai and Ors.(AIR 1930 PC 93), it has been held that, there was separation of food and residence for a long time can be considered as that there had S.A. Nos.309 & 414 of 1997 18 been a partition among the members.

23. Further the evidence of PW1 itself will go to show that there was no jointness of family and they are having independent properties and there is nothing on record to show that this property was ever held to be a joint family property enjoyed jointly for any endowed purpose as claimed by the plaintiffs.

24. In the decision reported in Ramchandra Shukla v. Shree Mahadeoji and others (AIR 1970 SCC 458) it has been held that, A dedication of property for a religious or a charitable purpose can according to Hindu law, be validly made orally and no writing is necessary to create an endowment except where it is created by a will.

25. Further in the book on Law of Hindu Religious and Charitable Endowment, 3rd edition by V.K.Varadachari ' the endowment is defined as:

(1) endowment is the dedication of the property by gift or device to religious or charitable purpose. (2) That endowment must be certain both as to the subject and to the object.

(3) A dedication of the property to an endowment may be partial or complete.

S.A. Nos.309 & 414 of 1997 19 (4) It is partial when it is merely a charge or trust created.

(5) It is complete when the property is dedicated absolutely and no person has any beneficial interest therein.

26. So in order to claim a religious endowment or dedication to charitable or religious purpose or creating a private trust for religious purpose, it must be proved by the person claiming the same, that it was gifted or dedicated for that purpose with some certainty and when it was created and how it is being managed and who had created the same etc. PW1 had no case that the family members have relinquished their right over the property and dedicated it fully for the purpose of religious and charitable purpose. He had also stated that he has documents to show that it has been dedicated for religious purpose but he had not produced any documents to prove that fact.

27. It is true in the decision reported in Iqbal Singh v. Santokh Singh and Anr. (AIR 1984 P & H 366), it has been held that, From long user of the property for a charitable purpose it can be inferred that it was dedicated for religious and charitable purpose.

S.A. Nos.309 & 414 of 1997 20

28. For that also some evidence is required. In this case the evidence of PW1 is not sufficient to come to the conclusion that there was any dedication made by the family members creating a private religious trust for the purpose of managing the temple and its affairs this property has been dedicated relinquishing their right in the property.

29. Further it will be seen from Exts.B1 and B2 that there was no such dedication or imparitabilty of the property claimed. So at that time when Exts.B1 and B2 were passed, there was no dedication as claimed. Further there was no evidence adduced on the side of PW1 as to when such dedication had been made and who had made such dedication and under what terms and conditions such an endowment and dedication was made by the family members and as to how the dedication will have to be implemented by the family members etc. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiffs in O.S. No.556/86 have failed to prove that this property is dedicated by the family for religious and charitable purpose as claimed by them and that it is not available for partition. A person claims that a particular property is a joint family S.A. Nos.309 & 414 of 1997 21 property and it is imparitable has to prove that fact, which has not been established in this case. Further the courts below had considered the atangal extract produced by the plaintiffs, which is marked as Exts.A1 and A2 which do not show who is in possession of the property. Further, it is also seen from Exts.A1 and A2 that the survey number mentioned therein and the extent mentioned are different. There is no attempt made on the side of the plaintiffs to prove the identity of the property covered by Exts.A1 and A2 and the plaint schedule property in Ext.B1 and the impugned judgment Exts.A5 and A6 are one and the same. Ext.A7 also will not go to show who is in possession of the building. The evidence of PW2 is not helpful to prove that the property belongs to Kozhambrath family and it has been dedicated for the religious purpose by the family members. He has no idea bout the family relatives of plaintiffs and defendants and who was the head of the family and he did not know even about the details of his own family. The evidence of PW3 photographer and photographs produced are not sufficient to prove the endowment as claimed. He did not produced any bill to show that the photographs were taken by him. So the courts below were S.A. Nos.309 & 414 of 1997 22 justified in not relying on the evidence of PW2 and PW3 and rightly held that their evidence is not helpful to prove the case of the plaintiffs in O.S.No.556/68 regarding dedication of the property for religious and charitable purpose.

30. Merely because there existed some deities alone is not sufficient to come to the conclusion that there existed a family temple for which the entire property having a vast area has been dedicated as claimed by the plaintiffs. Further it was brought out in evidence of PW1 that he is having close association with 1st defendant in O.S. No.434/82 who claimed that this property is his exclusive property and he was a witness to the will said to have been executed in favour of 1st defendant in O.S. No.434/82 which was not acted upon by the court later and it will be seen from the evidence that the present suit has been filed at the instance of 1st defendant in O.S.No.434/82 by including certain persons as family members so as to deny the benefit of decree obtained in O.S.No.434/82 in collusion with the 1st defendant in O.S No.434/82 who claimed to be in exclusive possession of the property. Further the evidence of PW1 will go to show that plaint A schedule genealogy is not correct and it do not represent the correct S.A. Nos.309 & 414 of 1997 23 family tree. In the decision reported in State of Bihar and Others v. Sri.Radha Krishna Singh and others (AIR 1983 SC 684), the principles of reliability and admission of the genealogy of family has been formulated by the Apex Court, which read as follows:

19. The principles governing such cases may be summarised thus:

(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies.

(a) Sources of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act.

(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility the following tests must be adopted:

(a) the genealogies of the families concerned must fall within the four corners of S.32(5) or S.13 of the Evidence Act.

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decision to be inadmissible.

(d) where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. S.A. Nos.309 & 414 of 1997 24

31. It is further held in the same decision that it is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.

32. In this case the evidence of PW1 will go to show that the genealogy is not correct and it does not represent every link of the family members and so it cannot be said that on the basis of the genealogy, based on which the plaintiffs want to prove the existence of joint family and relationship between the parties. The plaintiffs have to prove that the plaintiffs are representing the members of the Kozhambrath joint family so as to get relief as claimed by them. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiffs in O.S.No.556/86 are not entitled to get the relief of declaration as claimed and also consequential injunction restraining defendants 1 to 4 from proceeding with the final decree proceeding in O.S.No.434/82 of the Sub Court, Kozhikode and rightly dismissed the suit.

S.A. Nos.309 & 414 of 1997 25

33. There is no presumption of dedication which can be presumed without any evidence as claimed by the appellants in the appeal memorandum. There must be some concrete evidence adduced on the side of the plaintiffs to prove this fact and dedication can be inferred only if such a evidence is available. The counsel for the appellants have fairly conceded that there is no documentary evidence to prove the dedication of the property for religious purpose made by the members of the family. So under such circumstances, there is no substantial question of law arises for consideration and on facts the courts below were concurrently found that the plaintiffs have failed to prove their case and as such they are not entitled for declaration and injunction as prayed for and rightly dismissed the suit and this Court do not find any reason to interfere with the same.

34. As regards O.S.No.178/88 is concerned, the plaintiffs in O.S.No.434/82 of Sub Court, Kozhikode filed the suit for injunction, when they received the summons in O.S. No.556/86 filed by the plaintiffs in that case and some of the plaintiffs in that case who were shown as defendants 5 to 9 tried to assert right in that property and take possession of the S.A. Nos.309 & 414 of 1997 26 property forcibly under the guidances of the 1st defendant in that suit, they filed the suit for injunction. Once it is found that the decree in O.S.No.434/82 obtained is a valid decree and there is no necessity to declare that that decree is not binding on the plaintiffs in O.S.No.556/86 and also found that they have no right in the plaint schedule property as claimed by them, then any apprehension from that persons give a cause of action for the person claiming joint possession with other defendants in the partition suit to claim for injunction restraining the persons trying to assert right and trespass into the property. There is no documentary evidence adduced on the side of the defendants 5 to 9 to show that they are in possession of the property. So the co-owner claiming joint possession of the property can maintain an action for injunction against the trespass by a third party,who could not establish any right over the plaint schedule property for and on behalf of the co-owner as well. In this case he had impleaded other co-owners as defendants 1 to 4 who were bound by the decree in O.S. No.434/82 of Sub Court, Kozhikode and as such the courts below were perfectly coming to the conclusion that the injunction suit filed by some of the co-owners on behalf of S.A. Nos.309 & 414 of 1997 27 other co-owners is maintainable and having found that defendants 5 to 9 who are some of plaintiffs in O.S.No.556/86 have no right in the plaint schedule property rightly granted injunction restraining them from trespassing into the plaint schedule property in O.S. No.178/88 and rightly decreed that suit. There is no substantial question of law arises for consideration as this Court has found that on the basis of the evidence and facts that both the courts have concurrently found that the defendants 5 to 9 in O.S.No.178/88 and plaintiffs in O.S. No.556/86 have failed to establish their right over the plaint schedule property and the apprehension of the plaintiffs in O.S No.178/88 is genuine and rightly decreed the suit and this Court do not find any reason to interfere with the concurrent finding of the courts below arrived at on facts. So the both the appeals lack merit and the same are liable to be dismissed.

In the result, both the appeals fail and same are hereby dismissed. The decree and judgment passed by the Additional Munsiff Court, Kozhikode in O.S.556/86 dismissing the suit and O.S.No.178/88 decreeing the suit and confirmed by the first appellate court in A.S.Nos.195/91 and 199/91 of S.A. Nos.309 & 414 of 1997 28 the District Court, Kozhikode are hereby confirmed. Considering the circumstances, this Court do not find any reason to disallow the cost of the appeals to the contesting respondents. So the appeals are dismissed with cost of contesting respondents in both the appeals. Registry is directed to send back the records to the court below with this judgment at the earliest. The interim order if any passed by this Court are hereby vacated and all the other interim applications are dismissed.

Sd/-

K.RAMAKRISHNAN, JUDGE rmm/4.10.2017 // True Copy // P.A. To Judge

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Kerala High Court