Kerala High Court
A.S.Balasubramanian vs A.S.Ramakrishnan on 16 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 16TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945
RSA NO. 158 OF 2005
AGAINST THE JUDGMENT IN OS 59/1999 OF MUNSIFF COURT, CHITTUR AND IN AS
8/2002 OF DISTRICT COURT, PALAKKAD
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
A.S.BALASUBRAMANIAN
RESIDING AT THAZHECHIRA PADAM, ELAVANCHERRY, VILLAGE, CHITTUR
TALUK, PALAKKAD DISTRICT.
BY ADV K.S.BHARATHAN
RESPONDENTS/APPELLANT/2ND RESPONDENT PLAINTIFF/2ND DEFENDANT:
1 A.S.RAMAKRISHNAN, S/O.A.K.SESHA IYER,
RESIDING AT ALAMPALLAM GRAMAM, VADAVANNUR VILLAGE, CHITUR
TALUK, PALAKKAD DISTRICT.
2 DILEEP KUMAR, S/O. RAMACHANDRA MENON
RESIDING AT PUSHPA VILASAM, KOLLENGODE AMSOM, CHITTUR TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SRI.V.JAYADEVA NARAYANAN
SRI.M.P.RAMNATH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 158 OF 2005
2
JUDGMENT
The 1st defendant in O.S.No.59/1999 on the files of the Munsiff Court, Chittur is the appellant and he has filed this appeal under Order XII r/w Section 100 of the Code of Civil Procedure, 1908. He impugns judgment in A.S.No.8/2002 on the files of the District Court, Palakkad, whereby, the learned District Judge reversed the decree and judgment in O.S.No.59/1999 and granted the relief of prohibitory injunction in favour of the plaintiff in the suit. The respondents herein are the plaintiff and the 2nd defendant.
2. Heard the learned counsel for the appellant as well as the 1st respondent.
3. At the time of admission, as per order dated 03.08.2022, my learned predecessor admitted this appeal on raising following substantial question of law:-
(a) In a suit for injunction the judgment and decree passed on the basis of title without any finding on possession of plaintiff is sustainable in law?
4. The suit is one filed by Sri.A.S.Ramakrishnan as plaintiff arraying his brother Sri.A.S.Balasubramanian as the 1 st defendant and Sri.Dhileep Kumar as the 2nd defendant.
5. The contention put by Sri.A.S.Ramakrishnan before the trial court was that he purchased the plaint schedule property as RSA NO. 158 OF 2005 3 per a Sale Deed executed by his parents, he had mutated the same in his favour and has been possessing the same. According to him, his brother Sri.A.S.Balasubramanian - 1 st defendant and the 2nd defendant to whom Sri.A.S.Balasubramanian alleged to have executed a sale agreement, attempted to trespass upon the plaint schedule property. Accordingly, apprehending trespass at their instance, the present suit for permanent prohibitory injunction was filed.
6. The 1st defendant filed written statement and asserted possession over plaint item No.5 property though he did not claim either title or possession over any other items of the plaint schedule. The 1st defendant contended that on the strength of a Power of Attorney executed by the parents, Sri.A.S.Balasubramanian executed a sale agreement in favour of the Sri.Dhileep Kumar and suit as O.S.No.33/1999 also was filed, though the above suit was dismissed by the trial court as well as the appellate court.
7. In a suit for simple injunction, the trial court examined PW1 and PW2 and marked A1 to A4 on the side of the plaintiff and Exts.B1 to B4(e) marked on the side of the defendant.
8. Ultimately, the trial court dismissed the suit holding that the plaintiff failed to prove possession over the entire items of RSA NO. 158 OF 2005 4 properties. The verdict of the trial court was challenged before the District Court, Palakkad and as per judgment dated 08.06.2004, the learned District Judge allowed the appeal and granted prohibitory injunction.
9. While assailing the verdict of the first appellate court in substitution of the trial court verdict, the learned counsel for Sri.A.S.Balasubramanian submitted that on perusal of the available materials along with the evidence of PW1 and PW2, it could be gathered that the trial court rightly dismissed the suit on finding possession of plaint item No.5 property by Sri.A.S.Balasubramanian and the appellate court went wrong in holding otherwise, merely relying on the title deed, tax receipt as well as possession certificate issued by the Village Officer without proving Ext.A3 by examining the Village Officer.
10. The learned counsel for Sri.A.S.Ramakrishnan fervently argued and resisted the contentions raised by the learned counsel for Sri.A.S.Balasubramanian. According to the learned counsel for Sri.A.S.Ramakrishnan, the parents of Sri.A.S.Ramakrishnan duly executed the sale deed marked as Ext.A1 in favour of Sri.A.S.Ramakrishnan for valid consideration. and immediately thereafter, as per Ext.A2, Sri.A.S.Ramakrishnan mutated the property in his favour and he also produced RSA NO. 158 OF 2005 5 certificate showing possession of the property and the same has been issued by the Village Officer, which is produced as Ext.A3. It is pointed out by the learned counsel further that, when the parents sold the plaint schedule property in favour of Sri.A.S.Ramakrishnan, Sri.A.S.Balasubramanian in collusion with the 2nd defendant created an agreement with backdate before the date of Ext.A1 and on the basis of the said agreement, suit for specific performance as O.S.No.33/1999 was filed before the Sub Court, Palakkad, and the same was dismissed.
11. On appeal as R.F.A.No.119/2005, a Division Bench of this Court dismissed the appeal and a review petition was filed after producing the Power of Attorney in favour of Sri.A.S.Balasubramanian executed by the parents. But while dismissing the review petition, the Division Bench of this Court observed that no power was conferred by the parents to Sri.A.S.Balasubramanian on the strength of the said power of attorney to negotiate and contract to assign any land.
12. On perusal of the copy of the judgment in R.F.A.No.119/2005 as well as order in R.P.No.305/2018 in R.F.A.No.119/2005 this argument is fully convincing and in the review petition, the Division Bench specifically observed that no RSA NO. 158 OF 2005 6 power was conferred by the parents on Sri.A.S.Balasubramanian to negotiate and contract to assign any land, as contended.
13. In the case at hand, the crucial question is whether the first appellate court did not find possession on the basis of title relied upon by Sri.A.S.Ramakrishnan. The first appellate court found that as per Ext.A1, Sri.A.S.Ramakrishnan obtained title over the entire extent of plaint schedule property and he had mutated the same as per Ext.A2. Accordingly, the first appellate court, found possession of the entire property by Sri.A.S.Ramakrishnan and granted prohibitory injunction.
14. In this case, the title and possession of entire plaint items excluding item No.5 is not in dispute. The dispute is confined in the matter of possession of plaint item No.5 property, where Sri.A.S.Balasubramanian, claims possession. The learned counsel for Sri.A.S.Ramakrishnan relied on Ext.B1 the copy of plaint in O.S.No.33/1999, after highlighting the recitals therein asserting possession of the property by the parents at the time of filing of Ext.B1.
15. On perusal of page No.6 of Ext.B1, it has been averred that the property had been possessed and enjoyed by defendants 1 and 2 (who are none other than the parents of Sri.A.S.Balasubramanian) RSA NO. 158 OF 2005 7
16. Although it is argued by the learned counsel for Sri.A.S.Balasubramanian that PW1 admitted possession of item No.5 by Sri.A.S.Balasubramanian, on reading the deposition of PW1 when such a suggestion was made to PW1, he denied the possession of item No.5 property by Sri.A.S.Balasubramanian and his candid evidence is that Sri.A.S.Balasubramanian had been residing 400 meters away from item No.5 property owned by Sri.A.S.Balasubramanian and not the plaint schedule property.
17. On perusal of the evidence of PW1 throughout, he had specifically denied the possession as contended by Sri.A.S.Balasubramanian, while adhering his possession. The evidence available that of PW1 read along with Ext.A1 and A2 with specific mention in Ext.B1 admitted possession of the entire plaint schedule property by the parents, there is no reason to disbelieve possession asserted by Sri.A.S.Ramakrishnan, who got title and possession from his parents on the strength of Ext.A1 without the junction of any intermediaries.
18. In a suit for prohibitory injunction possession is decisive to grant the relief. Here, the evidence of PW1 asserting title in tune with the title deed to be believed, to find possession unless the contrary to be borne out from the materials. No doubt nothing contrary available in this case.
RSA NO. 158 OF 2005 8
19. Going by the materials, it is held that the possession claimed by Sri.A.S.Ramakrishnan over the entire items of plaint schedule property to be found as rightly found by the first appellate court, rejecting the possession of item No.5 property by Sri.A.S.Balasubramanian. Therefore, the substantial question of law answered in the negative holding that the first appellate court, in fact, found possession over entire items of plaint schedule property, by Sri.A.S.Ramakrishnan based on title and not granted decree of injunction recording finding as to possession.
In the afore circumstances, appeal fails and the same is accordingly dismissed confirming the verdict of the first appellate court.
All interlocutory applications pending in this second appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.
SD/-
A. BADHARUDEEN JUDGE rp