Kerala High Court
Krishnakumar vs G.Gopakumar on 7 February, 2024
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
RSA NO. 824 OF 2020
AGAINST THE ORDER/JUDGMENT AS 86/2015 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM / II
ADDITIONAL MACT, KOTTAYAM
OS 583/2010 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT
/ COMMERCIAL COURT, KOTTAYAM
APPELLANT/S:
KRISHNAKUMAR, AGED 48 YEARS
S/O.RAGHAVAN NAIR, THEKKEPARAMBIL (FROM
DHANUSHKODI) HOUSE, THRIKODITHANAM KARA,
THRIKODITHANAM VILLAGE,CHANGANACHERRY TALUK,
KOTTAYAM
BY ADV C. RAJENDRAN
B.K.GOPALAKRISHNANB
RESPONDENT/S:
G.GOPAKUMAR,AGED 53 YEARS,
S/O. PARAMESWARAN PILLAI, PROPRIETOR G-4,
PROPERTIES, AMBOORAN BUILDINGS, MANORAMA
JUNCTION, KOTTAYAM, RESIDING AT GAYATHIRMADAOM,
KILIROOR KARA, THIRUVARPPU VILLAGE, KOTTAYAM-686
020
BY ADV G.GOPAKUMAR(Party-In-Person)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 07.02.2024, ALONG WITH RSA.21/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
-2-
R.S.A.Nos.824 of 2020 & 21 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
RSA NO. 21 OF 2021
AGAINST THE ORDER/JUDGMENT AS 85/2015 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM / II
ADDITIONAL MACT, KOTTAYAM
OS 183/2012 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT
/ COMMERCIAL COURT, KOTTAYAM
APPELLANT/S:
KRISHNAKUMAR, AGED 48 YEARS
S/O.RAGHVAN NAIR, THEKKEPARAMBIL (FROM
DHANUSHKODI) HOUSE, THRIKODITHANAM KARA,
THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM.
BY ADV C. RAJENDRAN
B.K.GOPALAKRISHNAN
RESPONDENT/S:
G.GOPAKUMAR
AGED 53 YEARS, S/O.PARAMESWARAN PILLAI,
PROPRIETOR G-4 PROPERTIES, AMBOORAN BUILDINGS,
MANORAMA JUNCTION, KOTTAYAM, RESIDING AT
GAYATHRIMADOM, KILIROOR KARA, THIRUVARPPU
VILLAGE, KOTTAYAM - 686 020.
BY ADV G.GOPAKUMAR(Party-In-Person)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 07.02.2024, ALONG WITH RSA.824/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
-3-
R.S.A.Nos.824 of 2020 & 21 of 2021
CR
A.BADHARUDEEN, J.
======================================================
R.S.A.Nos.824 of 2020 & 21 of 2021
=============================================================
Dated this the 7th day of February, 2024
JUDGMENT
R.S.A.No.824 of 2020 has been filed under Section 100 r/w Order XLII of the Code of Civil Procedure, challenging the decree and judgment in O.S.No.583 of 2010 dated 26.02.2015 on the files of Sub Court, Kottayam and the decree and judgment in A.S.No.86 of 2015 dated 06.01.2020 on the files of the Additional District Judge, Kottayam. The appellant is the defendant in the suit - Sri.Krishnakumar. The respondent herein is the plaintiff in the suit - Sri.G.Gopakumar.
2. R.S.A.No.21 of 2021 is also filed by Sri.Krishnakumar, who is the plaintiff in O.S.No.183/2012 on the files of the Sub Court, Kottayam, challenging the decree and judgment of the above said order dated 26.02.2015 and confirmed by the decree and judgment in A.S.No.85 of 2015 dated -4- R.S.A.Nos.824 of 2020 & 21 of 2021 06.01.2020 on the files of Additional District Judge, Kottayam. Sri.Gopakumar is the respondent herein also.
3. I shall refer the parties as 'appellant' and 'respondent' (their status in this second appeal) hereinafter for convenience.
4. At the time of admission of R.S.A.No.824/2020, my predecessor, as per order dated 20th October, 2022, framed the following substantial questions of law.
(i) Whether the suit filed for injunction without prayer of declaration is maintainable in law?
(ii) Whether the judgment and decree passed by the courts below is perverse due to mis-appreciation of evidence?
Similarly, at the time of admission of R.S.A.No.21/2021, as per order dated 20th October 2022, framed the following substantial questions of law.
(i) Whether the findings that the suit is barred by limitation is legally sustainable?
(ii) Whether the judgment and decree passed by the courts below is perverse due to mis-appreciation of evidence?
5. Heard; Sri. C. Rajendran, the learned counsel for the appellant and the respondent - who appeared as party in person. -5- R.S.A.Nos.824 of 2020 & 21 of 2021 Perused the lower court records and the decisions relied on by both sides.
6. O.S.No.583/2010 is one filed by the respondent herein seeking relief of permanent prohibitory injunction when he apprehended trespass upon the plaint schedule property at the instance of the appellant herein. According to the respondent herein, he purchased the plaint schedule property having an extent of 14.18 Ares in R.Sy.No.319/1/1 of Thrikodithanam Village from the appellant on the strength of sale deed No.2491/2007 of Thengana SRO and he has been in possession and enjoyment of the same and he had effected mutation also. The appellant herein resisted the above suit and also filed O.S.No.183/2012 seeking to declare that sale deed No.2491/2007 of Thengana SRO in favour of the respondent as null and void and also for prohibitory injunction restraining respondent herein from trespassing upon the property.
-6-R.S.A.Nos.824 of 2020 & 21 of 2021
7. The court below jointly tried the suits treating O.S.No.183/2012 as the leading case. Accordingly, PW1 to PW3 were examined and Exts.A1 to A7 were marked on the side of the plaintiff/appellant herein. DW1 and DW2 were examined and Exts.B1 to B11 were marked on the side of the defendant/respondent herein. Exts.C1 and C1(a) were also marked as court exhibits. Finally, the trial court dismissed O.S.No.183/2012 and decreed O.S.No.583/2010 as under:
"In the result, O.S.183/2012 is dismissed and O.S.583/2010 is decreed as follows:- The defendant in O.S. 583/2010 is restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property, from committing any act of waste therein, from making any further construction in the plaint schedule item No.1 property and from making any further modification of plaint schedule item No.2 shed. The defendant is directed to remove plaint schedule item No.2 shed within a period of 3 months from the date of decree falling which the plaintiff will be entitled to get the shed removed through the processes of the court at the cost of the defendant. The parties to bear their respective costs."
8. Though appeal filed before the appellate court as A.S.No.85/2015 and A.S.No.86/2015, the learned Additional -7- R.S.A.Nos.824 of 2020 & 21 of 2021 District Judge, on re-appreciation of evidence, concurred with the finding of the trial court and accordingly, as per common judgment, dismissed both appeals.
9. First of all, I shall address the question of limitation. Whether the findings of the courts below that the suit is barred by limitation is legally sustainable?; is the substantial question of law raised in R.S.A.No.21/2021.
10. Going by the verdicts impugned, O.S.No.183/2012 has been filed to declare the sale deed No.2491/2007 as null and void. The respondent raised contention that O.S.No.183/2012 is barred by limitation. The courts below found that Ext.A1 viz. Sale deed No.2491/2007 is executed on 11.07.2007. Therefore, the suit to set aside the sale ought to have been filed within three years from 11.07.2007, that is on 10.07.2011. Thus O.S.No.183/2012 filed after three years is barred by limitation.
11. In the first appellate judgment, the relevant article dealing with the question of limitation in O.S.No.183/2012, was -8- R.S.A.Nos.824 of 2020 & 21 of 2021 considered and finally, relying on Article 59 of the Limitation Act, the appellate court also concurred with the findings of the trial court in O.S.No.183/2012 that the suit is barred by limitation. On a reading of Article 59 of the Limitation Act, it is indubitably clear that the suit to cancel or set aside an instrument or decree or for the rescission of a contract, the period of limitation is three years and the same would run when the facts entitling the plaintiff to have the instrument or decree canceled or set aside or the contract rescinded first become known to him.
12. In this matter, going through the written statement filed by the appellant in O.S.No.583/2010 and the plaint averments in O.S.No.183/2012, the appellant admitted execution of the sale deed though his contention was that the same was executed when he availed a loan of Rs.3,50,000/- from the respondent to clear the loan liability outstanding with Kerala State Financial Enterprises ('KSFE' hereinafter for short). Since the appellant admitted execution of the sale deed, it is emphatically clear that the -9- R.S.A.Nos.824 of 2020 & 21 of 2021 appellant is well aware about the execution of Ext.A1 on the date of execution itself. Therefore, the relief of declaration sought for in O.S.No.183/2012, beyond the period of three years is clearly barred under Article 59 of the Limitation Act. Therefore, the finding so entered by the trial court and as confirmed by the appellate court, is perfectly in order. Thus the first substantial question of law in R.S.A.No.21/2021 is found so.
13. In order to find possession of the plaint schedule property in O.S.No.583/2010, the trial court as well as the appellate court relied on the evidence of PW1 supported by PW2, who purchased trees situated in the plaint schedule property from the respondent and his evidence is that he purchased trees from the respondent and paid its value to the respondent. Although PW2 stated interference of the appellant during the sale deal ultimately he purchased, cut and removed the trees at the volition of the respondent. There is nothing to hold that possession based -10- R.S.A.Nos.824 of 2020 & 21 of 2021 on Ext.A1/B2 sale deed claimed by the respondent and as found by the courts below is perverse in any manner.
14. The learned counsel for the appellant vehemently argued that in the present suit, the respondent herein did not succeed merely by filing a suit for injunction without the relief of declaration of title and for the said reason, O.S.No.583/2010 would fail. The learned counsel also argued that since the appellant filed written statement and raised challenge on the title of the respondent, the respondent should have atleast amended O.S.No.183/2012 for declaration of title too. It is in view of this challenge, first substantial question of law raised in R.S.A.No.824 of 2020. In order to substantiate this legal question, the learned counsel produced three decisions of the Apex Court as under:
15. The first one is Anathula Sudhakar v. P.Buchi Reddy (Dead) by LR.s and others [2008 KHC 6249], when the apex court considered the following questions, while deciding title -11- R.S.A.Nos.824 of 2020 & 21 of 2021 asserted on the strength of an oral gift, even without mutation in favour of the donee.
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?
(iv) What is the appropriate decision?
While answering the above queries, it was held as under:
Re : Question (i) :
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie.
A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person -12- R.S.A.Nos.824 of 2020 & 21 of 2021 out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. Re : Question (ii) answered in Paragraph 21 as under;
"...Where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and S.41 of TP Act, validity of a oral gift by way of 'Pasupu Kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter."
16. The Apex Court answered this question on the basis of the facts involved in the case.
Re : Question (iii) is answered in Paragraph 26 and 27 as under;
"26. The High Court while reversing the decision of the first Appellate Court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of 'Pasupu -13- R.S.A.Nos.824 of 2020 & 21 of 2021 Kumkumam', could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to Rukminibai (which was denied by Damodar Rao), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW 3 and PW 5 and plaintiffs, the Damodar Rao negotiated for the sale of the plots representing that they belonged to his sister Rukminibai and that he attested the sale deeds a s awitness and identified the Rukminibai as the executant before the Sub-Registrar and therefore, S.41 of TP Act came to the aid of plaintiffs and Damodar Rao was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title.
27. We are therefore of the view that the High Court exceeded its jurisdiction under S.100 CPC, firstly in re- examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first Appellate Court which held that the plaintiffs ought to have filed a suit for declaration."
17. The second decision placed by the learned counsel for the appellant is Balasubramanian and Another v. M.Arockiasamy (dead) through Lrs.[ 2021 KHC 6418] (3 bench decision). Paragraph 15 of the judgment reads thus: -14-
R.S.A.Nos.824 of 2020 & 21 of 2021 "15. 15. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred. On the other hand, in Sulochana Amma vs. Narayanan Nair, 1994 (2) SCC 14, this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed:-15-
R.S.A.Nos.824 of 2020 & 21 of 2021 "Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata."
This was reiterated in Annaimuthu Thevar v. Alagammal # 2005 (6) SCC 202."
18. Another decision Subramanian A. and Another v. R.Pannerselvam [2021 KHC 6055] also to support the contentions of the appellant. In the said decision, the Apex court considered lack of plea for declaration of title in a suit for injunction and held that:
"21. The High Court was also right in its view that it is a common principle of law that even trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. The High Court has rightly observed that a bare perusal of the plaint would demonstrate that the plaintiff has not narrated anything about the title dispute -16- R.S.A.Nos.824 of 2020 & 21 of 2021 obviously because of the fact that in the previous litigation, DW1 failed to obtain any relief. The High court has rightly observed that the principle that plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts of the present case."
19. In the above decision, DW1 failed to get his title declared and recovery of possession in a previously instituted suit.
20. Refuting this contention, the respondent, who appeared in person placed reliance on the decision of the Apex Court in Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan [2021 (5) KHC 430] and argued that when there is no apparent dispute to the title or the title is not under a cloud, a suit for injunction can be decided with reference to finding on possession and if the matter involves complicated questions of fact and law relating to title, the court would relegate parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Therefore, question of title would not be decided in suits for injunction. -17- R.S.A.Nos.824 of 2020 & 21 of 2021
21. Another decision of the apex court in Civil Appeal No. 5577/2020 has been placed by the respondent with reference to paragraph 20 of the above judgment where the Apex court, extracted para 11 of the decision reported in Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692, held as under :
"20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another2:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the releif of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
22. In this case, the specific case of the respondent before the trial court is that he obtained title as per Ext.A1 sale deed and he had mutated the property. Further, he has been in possession and enjoyment of the plaint schedule property and he has been paying land tax after getting the title and possession. Ext.B2 -18- R.S.A.Nos.824 of 2020 & 21 of 2021 produced by the respondent is the notarized copy of the sale deed No.2491/2007 and the same is marked as Ext.A1 on the side of the plaintiff. Apart from Ext.B2/A1, plaintiff produced tax receipts of remittance of tax as on 28.07.2007 (Ext.B3), 12.06.2008 (Ext.B3(a)), 19.05.2009 (Ext.B3(b), 16.04.2010 (Ext.B3(c)), 13.11.2013 (Ext.B4) and on 06.06.2014 (Ext.B4(a)) to show periodical remittance of tax.
23. The trial court found that on the strength of title, the respondent got possession over plaint schedule property and has been continuing the same as on the date of the suit and thereafter. It was also found by the trial court that plaint Item No.2 is a shed put up by the appellant herein very recently as reported by the Commissioner. It was found by the trial court specifically that there was a temporary shed constructed, having an age of 15 days, as reported by the Commissioner.
24. In this matter, the specific case of the respondent before the trial court is by asserting title and possession over the -19- R.S.A.Nos.824 of 2020 & 21 of 2021 plaint schedule property and accordingly, prohibitory injunction against trespass was sought for. Apart from prohibitory injunction, mandatory injunction to remove the shed scheduled as Item No.2 also was sought for on the specific allegation that the same was newly constructed by the appellant herein.
25. Summerising the law, it is held that when the plaintiff's title is not in dispute or under a cloud, a suit for prohibitory injunction is maintainable and the suit can be decided after adjudicating the question of possession. To put it to otherwise- Where the plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession by seeking the relief of prohibitory injunction. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction -20- R.S.A.Nos.824 of 2020 & 21 of 2021 simpliciter, without seeking the relief of title declaration and recovery of possession. Where the plaintiff is in possession, but his title to the property is in dispute or under a cloud or when the defendant asserts title thereto and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction.
26. The case of the appellant is that he executed Exts.A1/B2 when he received Rs.3,50,000/- to discharge the liability towards KSFE and he did not raise a contention that the same is not a sale deed at all. That apart, in O.S.No.183/2012, the appellant sought the relief to declare the title of the plaintiff as null and void so as to compel the respondent herein to defend the case by proving the genuiness of his title deed. Ultimately on evidence, the trial court as well as the appellate court found that Ext.A1/B2 is a genuinely executed sale deed and thereby the respondent herein perfected title to the plaint schedule property. Accordingly, O.S.No.183/2012 was dismissed and -21- R.S.A.Nos.824 of 2020 & 21 of 2021 O.S.No.583/2010 was allowed. Therefore, it is held that in the present case, when a suit for simple injunction was filed along with a prayer for mandatory injunction by the respondent, who has been in possession of the plaint schedule property, the appellant herein filed suit to set aside the title relied upon by the respondent herein. Accordingly, the trial court issues including
1).Whether sale deed No.2491/2007 (in O.S.No.183/2012) is void? And 2). Whether the plaintiff has got title and possession over the plaint schedule property? Thereafter, the trial court answered all the issues holding that Ext.A1/B2 is a genuinely executed document and the same is not liable to be set aside, even the suit is not barred by limitation. Further it was held that Exts.A1/B2 conferred title upon the respondent and he has been in possession and enjoyment of the plaint schedule property. It was held further that the appellant herein is liable to remove plaint Item No.2 structure erected just 15 days prior to filing of the suit. In such a case, it could not be held that O.S.No.583/2010 is not -22- R.S.A.Nos.824 of 2020 & 21 of 2021 maintainable since the respondent did not seek the relief of title declaration also. Similarly, no perversity could be gathered from the verdicts impugned while appreciating the evidence in any manner.
27. Concluding the discussions, it is held that the trial court as well as the appellate court have rightly decreed O.S.No.583/2010 and dismissed O.S.No.183/2012 and the said verdicts do not require any interference in the facts of this case.
In the result, both second appeals fail and are hereby dismissed. Considering the nature of the case and taking note of the fact that the trial court and the appellate court granted cost of the respondent herein it is held that respondent herein is entitled to get cost of the proceedings through out.
All interim orders stand vacated and all interlocutory applications pending shall stand dismissed.
sd/-
A.BADHARUDEEN, JUDGE das