Velayudhan vs Santhosh
2021 Latest Caselaw 7552 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

  THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                         RSA.No.14 OF 2020

    AS 36/2018 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR

          OS 247/2014 OF MUNSIFF COURT, NORTH PARAVUR


APPELLANT/S:

               VELAYUDHAN
               AGED 72 YEARS, S/O.KUNJAN, NAITHURUTHIL,
               KIZHAKKE KADUNGALLOOR KARA, KADUNGALLOOR VILLAGE.

               BY ADVS.
               SRI.DINESH R.SHENOY
               SRI.EBIN MATHEW
               SRI.P.ROHIT PREMANANDAN SHENOY
               SRI.A.JOSEPH GEORGE
               SMT.PREETHU PRADEEP

RESPONDENT/S:

      1        SANTHOSH, AGED 52 YEARS
               S/O.KOCHU NARAYANAN, NAITHURUTHIL, KIZHAKKE
               KADUNGALLOOR KARA, KADUNGALLOOR VILLAGE-683110.

      2        SAJEEVAN, S/O.SUBRAHMANYAN, AGED 48 YEARS,
               NAITHURUTHIL, KIZHAKKE KADUNGALLOOR KARA,
               KADUNGALLOOR VILLAGE-683110.

      3        OMANAKUTTAN, S/O.PARAMESWARAN, AGED 56 YEARS,
               NAITHURUTHIL, KIZHAKKE KADUNGALLOOR KARA,
               KADUNGALLOOR VILLAGE-683110.

      4        SIVAN, S/O.VELAYUDHAN, AGED 56 YEARS,
               PALLICHANPARAMBIL HOUSE, KANIYAMKUNNU KARA,
               KADUNGALLOOR VILLAGE-683110.

               R1-4 BY ADV. SRI.M.G.JEEVAN

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
24-02-2021, THE COURT ON 04-03-2021 DELIVERED THE FOLLOWING:
 RSA No. 14 of 2020

                                      ..2..

                                JUDGMENT

This RSA is against the judgment and decree

dated 05.07.2019 in AS No. 36 of 2018 of the

Additional District Court, North Paravur

(hereinafter referred to as, "the first

appellate court"), confirming the judgment and

decree dated 13.04.2018 in OS No. 247 of 2014

of the Munsiff's Court, North Paravur

(hereinafter referred to as, "the trial

court").

2. The appellant is the appellant in the first

appeal and the plaintiff in the original suit.

The respondents are the respondents in the

first appeal and the defendants in the

original suit. The parties are hereinafter

referred to as "the plaintiff" and "the

defendants" according to their status in the

trial court unless otherwise stated.

3. The suit was filed for permanent prohibitory

injunction, restraining the defendants from RSA No. 14 of 2020

..3..

trespassing into or obstructing the

construction of the compound wall around and

from committing any waste therein on the

allegation that the plaintiff had obtained

29.350 cents of property as per Ext.A1

settlement deed and Ext.A2 Possession

Certificate, which contained a thatched house

renovated by the plaintiff and used by the

mother and brother of the plaintiff for their

residence with the consent of the plaintiff.

On the immediate southern side of the

property, there was a property of Janaki, the

sister of the plaintiff's father, Kunjan. She

also had 29.350 cents, from which she had sold

20 cents to strangers leaving 9.350 cents,

which had been gifted to the plaintiff by

Janaki. Both the properties are lying

contiguously as one plot in the possession and

enjoyment of the plaintiff. The said

properties together form the plaint schedule RSA No. 14 of 2020

..4..

property. When the plaintiff tried to

construct compound wall around the property,

the defendants had objected to the same.

Hence, the suit was filed.

4. The defendants filed a written statement,

contending that the plaintiff had no right

over the 29.350 cents of property and there

was a suit pending between the plaintiff and

his brother and mother in respect of the same.

The claim that Janaki had gifted 9.350 cents

of the property to the plaintiff was also

denied. It was contended that there was a

temple in the property and that the property

is dedicated to the temple. The legal

representatives of Janaki are necessary

parties to the suit. They also denied the

alleged cause of action pleaded in the suit.

5. When the case came up for evidence, PWs 1 and

2 were examined and marked Exts.A1 to A3. The

Advocate Commissioner was examined as CW1 and RSA No. 14 of 2020

..5..

marked Exts.C1 and C1(a).

6. Heard the learned counsel for the appellant.

7. The plaintiff claims title and possession over

29.350 cents of property as per Ext.A1

partition deed. At the time of execution of

partition deed, the plaintiff was admittedly a

minor and he attained majority only on

31.01.1966. According to the plaintiff, there

was a house in the plaint schedule property

and his brother and mother were residing

therein with his permission. Ext.A1 copy of

the partition deed dated 27.07.1955 would go

to show that 29 cents of property in

Sy.No.1051/14 of Karumalloor SRO was allotted

to him. The plaintiff obtained Purchase

Certificate in respect of the said property in

the year 2013. Ext.A1 is the Purchase

Certificate issued from the land tribunal in

favour of the plaintiff. According to the

plaintiff, 29 cents of the property was RSA No. 14 of 2020

..6..

obtained by him through Ext.A1 partition deed

and the remaining 9.350 cents of property by

way of oral gift. The trial court and the

appellate court concurrently held that the

plaintiff has not been in possession of 9.350

cents of property. During trial, the

Commissioner filed Exts.C1 and C1(a). In

Ext.C1 report, the Commissioner stated that

the plaint schedule property is lying

contiguously. The 9.350 cents of property and

29 cents of property are found inseparable. In

view of the above circumstances, both the

trial court and the appellate court

concurrently held that the properties are

lying contiguously and it cannot be said that

plaintiff has been in possession of 38.350

cents of land.

8. True, if the plaintiff wants to construct a

compound wall around the 29.350 cents, there

is no objection for the defendants. However, RSA No. 14 of 2020

..7..

the facts are different in this case. Here,

the defendants are not the adjacent property

owners. However, they claim right over the

temple and the temple property.

9. The plaintiff filed the suit for injunction

without disclosing that there is a dilapidated

temple in the plaint schedule property. In

Ext.C1, the Commissioner, who visited the

property, would say that the remnants of the

temple are located when he visited the plaint

schedule property.

10.In an injunction suit, the material question

arising for consideration is as to whether the

plaintiff has been in possession of the suit

property and the plaintiff has a valid cause

of action to institute the suit. The cause of

action to institute the suit, according to the

plaintiff, was that while the plaintiff was

attempting to construct a compound wall, the

defendants obstructed the construction. RSA No. 14 of 2020

..8..

According to the plaintiff, he has been in

possession of 9.350 cents of property since

1970. He would say that one Janaki had gifted

9.350 cents of property to him. Actually,

Janaki had 29.350 cents of land, out of which

20 cents of property was sold during her

lifetime. The remaining 9.350 cents of

property, according to the plaintiff, was

given to the plaintiff by way of oral gift.

The main contention of the defendants is that

the plaintiff has not been in possession of

the property. According to the defendants, the

family temple situated in the plaint schedule

property was in a dilapidated condition and

renovation works are going on. The defendants

are the members of the renovation committee.

It is the specific case of the plaintiff that

he was in possession of the property since

1970 and he claims title by way of an oral

gift.

RSA No. 14 of 2020

..9..

11.Relying on Section 123 of the Transfer of

Property Act, both the trial court and the

appellate court concurrently held that the

gift of an immovable property can be

transferred only through a registered

instrument in accordance with law. The

possession of plaintiff over the above 9.350

cents of property is disputed by the

defendants. There is not even an averment in

the plaint that a temple was in existence in

the plaint schedule property. However, the

Commissioner, who submitted Exts.C1 and C1(a),

reported that at the time of inspection, he

had noticed a structure of a temple in the

plaint schedule property. Both sides have not

filed any objection to the Commission Report.

The renovation of the temple pleaded by the

defendants was not cross-examined by the

plaintiff during trial. Taking into

consideration the above circumstances, both RSA No. 14 of 2020

..10..

the trial court and the appellate court

concurrently held that the plaintiff has not

been in possession of the suit property on the

date of suit.

12.A second appeal is not a matter of right. The

right of appeal is conferred by statute. A

second appeal only lies on a substantial

question of law. If statute confers a limited

right of appeal, the court cannot expand the

scope of the appeal. It was not open to the

defendant to re-agitate facts or to call upon

the High Court to re-analyse or re-appreciate

evidence in a second appeal. In the case on

hand, both the trial court and appellate court

relied on the oral evidence of PW1, PW2 & CW1

and Exts.C1 and C1(a) for denying a decree for

permanent prohibitory injunction, restraining

the defendants from trespassing into or

obstructing the construction of the compound

wall around and from committing any waste RSA No. 14 of 2020

..11..

therein.

13.To be "substantial", a question of law must be

debatable, not previously settled by the law

of the land or any binding precedent, and must

have a material bearing on the decision of the

case and/or the rights of the parties before

it, if answered either way. As stated earlier,

in a second appeal, the jurisdiction of the

High Court being confined to substantial

question of law, a finding of fact that the

plaintiff has been in possession of the suit

property on the date of the suit and that the

plaintiff has valid cause of action to

institute the suit is not open to challenge,

even if the appreciation of evidence is wrong.

There is no debatable issue before this Court,

which is not covered by settled principles of

law or precedents.

14.The trial court and the first appellate court

examined the evidence on record at length and RSA No. 14 of 2020

..12..

arrived at a reasoned conclusion that the

plaintiff is entitled to get a decree for

permanent prohibitory injunction, restraining

the defendants from trespassing into or

obstructing the construction of the compound

wall around and from committing any waste

therein. The concurrent findings of facts of

the trial court and the first appellate court

do not warrant interference in a second

appeal.

For the reasons discussed above, the R.S.A. is

dismissed. There will be no order as to costs.

Pending applications, if any, stand disposed

of.

When the judgment is pronounced, the learned

counsel for the appellant submits that the

appellant may be given liberty to institute a

suit on title and the dismissal of the appeal

may be made without prejudice to institute a

suit on title in accordance with law. RSA No. 14 of 2020

..13..

As indicated earlier, the question arises in

an injunction suit is as to whether the

plaintiff has been in possession of the suit

property on the date of suit. It is clarified

that the dismissal of this RSA shall not stand

in the way of the appellant to institute a

suit on title and seek appropriate remedies in

accordance with law.

Sd/-

N.ANIL KUMAR

JUDGE Bka/-