Kerala High Court
Jayalakshmi vs Subhashini on 21 March, 2025
2025:KER:24319
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
RSA NO. 602 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED IN AS NO.97 OF
2011 OF PRINCIPAL SUB COURT, IRINJALAKUDA ARISING OUT OF THE
JUDGMENT AND DECREE DATED IN OS NO.20 OF 2002 OF MUNSIFF
COURT, KODUNGALLUR
APPELLANT(APPELLANT/PLAINTIFF):
JAYALAKSHMI
AGED 58 YEARS
D/O.CHAKKUNGAL KAMALAMMA, LOKAMALESWARAM VILLAGE &
DESOM KODUNGALLUR TALUK.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.SANIL JOSE
RESPONDENTS/RESPONDENTS/DEFENDANT:
1 SUBHASHINI
W/O.KAREKKATT JAYACHANDRAN & D/O.ERAMPURAKKAL
VELAYUDHAN, PADINJARE VEMBALLUR DESOM,
S.N.PURAM VILLAGE, KODUNGALLUR TALUK, PIN: 680 655.
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2
2 K.S.DIVAKARAN, AGED ABOUT 55, S/O. SANKARAN,
KUTTIPPARAMBIL HOUSE, PALLAMKAD, CHAPPA, PULLUT,
KODUNGALLUR, PIN-680 663 (ADDL. 2ND RESPONDENT IS
IMPLEADED AS PER ORDER DATED 26/11/2024 IN IA NO.
3/2020 IN R.S.A. NO. 602/2016)
BY ADVS.
SRI.K.G.BALASUBRAMANIAN
SRI.D.PREM KAMMATH
M.SHAJU PURUSHOTHAMAN
K.S.RAJESH - FOR R2.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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3
JUDGMENT
1. The appellant is the plaintiff in the suit. The suit was filed for
a permanent prohibitory injunction. The Trial Court and the
First Appellant Court concurrently found against the plaintiff.
2. The plaintiff sought for a decree of permanent prohibitory
injunction restraining the defendant from trespassing into the
plaint schedule property, from taking illegal possession of the
property, from forcibly evicting the plaintiff from the plaint
schedule property and from interfering with the peaceful
enjoyment of the plaint schedule property by the plaintiff. It
was also sought to restrain the defendant from creating any
document with respect to the plaint schedule property. Later,
Plaint was amended to include prayer for a mandatory
injunction directing the defendant to receive a balance
amount of Rs.13,000/- borrowed from her with interest and to
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execute sale deed with respect to the plaint schedule property
in favour of the plaintiff.
3. Admittedly the plaint property stands with the name of the
defendant. The defendant purchased the property from one
Dinesh Kumar. The said Dinesh Kumar derived the plaint
schedule property by a document executed by plaintiff and
one Abdul Azeez. As per the plaint allegations, all these
documents are executed for securing the loans availed by the
plaintiff from Dinesh Kumar and the defendant.
4. The defendant opposed the suit prayers, contending that the
defendant purchased the plaint schedule property from
Dinesh Kumar for valid consideration of Rs. 1,75,000/-. The
transactions between Dinesh Kumar, the plaintiff, and other
persons are not known to the defendant. There was no
agreement to re-convey the property purchased by the
defendant to any other person, including the plaintiff. The
plaintiff has no right to seek any relief from the defendant as
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the defendant has not purchased any property directly from
the plaintiff.
5. The Trial Court dismissed the suit, the defendant filed appeal
before the First Appellate Court and the same was dismissed
confirming the judgment and decree of the Trial Court.
6. I heard the learned counsel for the appellant Sri.Dinesh
R.Shenoy.
7. The learned counsel for the appellant contended that the suit
was originally for a simple injunction in which the possession
alone was the relevant fact. The evidence before the Court
would reveal that the plaintiff transferred the plaint schedule
property to money lenders, only as a security for loan availed
by her. The evidence would clearly reveal that the plaintiff's
case is more probable. The defendant did not mount to the
box to give evidence. In view of these facts, the Trial Court
ought to have granted decree in favour of the plaintiff.
8. I have considered the contentions.
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9. The plaint schedule property originally belongs to the plaintiff.
As per the plaint allegations, one Madhusoodhanan, who is
the brother of the plaintiff's husband, borrowed Rs. 15,000/-
from one Abdul Azeez, and the plaintiff stood as a surety. The
said Abdul Azeez instituted O.S. No.238/2009 before the Sub
Court Irinjalakuda for realizing the amount. The said Abdul
Azeez purchased the plaint schedule property in a Court
auction in execution of the decree, but he didn't obtain
delivery of the property. Later, the plaintiff settled the matter
with Abdul Azeez and by making a payment of Rs.26,000/-.
Thereafter a family friend of the plaintiff, Omana, borrowed an
amount of Rs.1,00,000/- from a money lender by the name of
Dinesh Kumar. 5 cents of the property was given by Omana
as security for the transaction. Since Omana did not repay
the amount to Dinesh Kumar and Dinesh Kumar threatened
Omana to dispose of the said 5 cents of land as an additional
security for the loan availed by Omana, Abdul Azeez and the
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plaintiff jointly executed the sale deed with respect to the
plaint schedule property in favour of Dinesh Kumar. It was a
sham document. The plaintiff had no intention to abide by the
said document. Later, due to the intervention of mediators, a
sum of Rs. 1,63,000/- was borrowed from the defendant to
settle the liability of the said Dinesh Kumar. As security for
loan availed by the plaintiff from the defendant, the plaint
schedule property was transferred in favour of the defendant
by Dinesh Kumar. The plaintiff repaid Rs.1,50,000/- to the
defendant by availing a loan from the Bank. The plaintiff is
willing to pay the balance amount of Rs.13,000/- with interest
to the defendant.
10.Though the plaintiff made the aforesaid allegations, the
relevant documents with respect to the said aforesaid
transactions were not produced before the Court. Plaintiff, as
PW1, admitted that the possession of the plaint schedule
property is with the defendant. The contention of the plaintiff
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is that Dinesh Kumar is a necessary party in the suit. The
plaintiff should have at least examined him to prove that he
transferred the property in favour of the defendant on account
of the settlement of the loan from him and to secure the loan
availed by the plaintiff from the defendant. There is no
evidence to show the plaintiff's transaction with the defendant
to claim the property from the defendant on payment of the
amount. There is no evidence that the plaintiff transferred
property to Dinesh Kumar.
11. At any rate, since the vendor of the defendant is not the
plaintiff, the plaintiff cannot claim any relief against the
defendant. It is true that in a suit for permanent prohibitory
injunction, possession alone is the relevant factor to consider.
When PW1 admitted that the property was in the possession
of the defendant, the plaintiff cannot maintain a suit for
permanent prohibitory injunction. The plaintiff has not proved
her claim before the Court. There is no substantial question of
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law in the matter. I do not find any ground or reason to
interfere. Accordingly, the Regular Second Appeal is
dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
