Sreekumari vs Podiyamma Died, Vanmeali Muriyil Veedu Erezha Thekkum Muri, Peringala Village Mavelikkara Po, Pin 690101 and Others

Thomas P. Joseph, J.—Plaintiff, who got a decree for prohibitory injunction in O.S. No. 300 of 2000 of the court of learned Munsiff, Kayamkulam but only to be reversed by the learned First Additional District Judge, Mavelikkara in A.S. No. 69 of 2005 has brought up this Second Appeal where the following substantial questions of law are framed for a decision.

(i) Whether finding of the appellate court that there is no evidence to prove transfer of possession of the suit property to the vendor of Ext.A1, sale deed is perverse and irrational?

(ii) Is it necessary to prove act of possession of property by the vendor when there is no dispute as to title and ownership of the property?

(iii) Whether first appellate court was justified in dismissing the suit by reversing the finding of trial court on the ground of want of evidence without affording an opportunity to adduce further evidence?

According to the plaintiff, the suit property, 6.9 Ares was acquired by him as per Ext.A1, sale deed No. 1164 of 1994 (item No. 2 in the document). It is his further case that he purchased 2.94 Ares in R.S. No. 101/17 as per the same document. The said properties were "Nilam" which appellant claimed to have reclaimed. He sold the 2.94 Ares referred above and the suit property is the rest of property - 6.9 Ares described as item No. 2 in Ext.A1, assignment deed. On the east of the said property is the property of original defendant. Alleging that they attempted to trespass, appellant sought a decree for prohibitory injunction. Original defendant contended that he purchased 10 cents in Sy. No. 381/1A (R.S. No. 98/15) as per document No. 1877 of 1978 and is in possession of the said property from 30.08.1978 onwards. Original defendant raised a counter claim seeking relief against the appellant.

Trial court granted decree in favour of the appellant. Courter claim was dismissed. First respondent-original defendant filed appeal against that judgment and decree. During pendency of the appeal she died and respondents being legal representatives were impleaded as additional appellants. First appellate court in paragraph 6.i of the judgment held that in so far as there is no evidence to show that suit property (allegedly) covered by the Ext.A4, final decree was delivered over to the mortgagor, based on the mere recital in Ext.A1, possession claimed by the appellant cannot be upheld. Holding so the appeal was allowed and suit the was dismissed. Dismissal of the counter claim by the trial court was confirmed. Dismissal of the suit is under challenge in the appeal on the substantial questions of law framed above.

Appellant has filed I.A. No. 2541 of 2011 to receive additional documents and produced the certified copy of report of the Amin in E.P. No. 144 of 1991 in O.S. No. 280 of 1961 of the court of learned Munsiff, Kayamkulam.

It is contended by the learned counsel that the only reasoning adopted by the first appellate court to decline to uphold possession claimed by the appellant over the suit property is that the delivery kaichit is not produced to show delivery of possession. Learned counsel submitted that now that the delivery kaichit is produced, finding of the first appellate court has to be reversed.

Learned counsel for respondents contended that the document now produced cannot be admitted in evidence. It is contended that the suit property is comprised in Sy. No. 381/6B while the copy of delivery kaichit produced by the appellant concerns property comprised in Survey No. 381/1C. According to the learned counsel, property referred to in the delivery kaichit is not item No. 2 of Ext.A1 which is described as the suit property.

It is not very much in dispute that suit property along with other items belonged to one Ramakrishnan Nair who created a mortgage in favour of one Vasudeva Kurup and others. The said Rmakrishnan Nair filed O.S. No. 280 of 1961 in the Munsiff''s court, Kayamkulam for redemption of mortgage and in that suit Ext.A4, final decree was passed on 31.07.1986. In Ext.A1, sale deed it is stated that in execution of the decree in O.S. No. 280 of 1961 in E.P. No. 144 of 1991, properties referred to in Ext.A1 were taken delivery. First appellate court observed that without producing a copy of the delivery kaichit, on the strength of recital in Ext.A2 alone, claim of appellant that she is in possession of the suit property cannot be upheld.

I have gone through the certified copy of delivery kaichit produced along with I.A. No. 2541 of 2011 in this appeal. There, reference is made to 2.68 acres in Sy. No. 381/1C while item No. 2 of Ext.A1, sale deed (which is said to be the suit property) is described as comprised in old Sy. No. 381/6B. Its resurvey number is also given. According to the learned counsel, by co-relation with the resurvey number it is possible to say that the suit property is comprised in old Sy. No. 381/1C though there appears to have been a mistake in describing the survey number in Ext.A1.

These questions cannot be adjudicated in this appeal arising from a suit seeking a decree for prohibitory injunction. Question regarding title particularly in view of the discrepancy which appears in the matter of survey number is to be worked out in a comprehensive suit on title. Otherwise, what the first appellate court said about claim of possession is justified.

Though original defendant had prayed for relief on the counter claim on a plea of adverse possession, trial court did not grant relief for the reason that claim of adverse possession is only against the mortgagee and not against the mortgagor.

In the light of what I have stated above I do not find reason to interfere with the finding entered by the first appellate court in paragraph 6.i of its judgment as regards possession claimed by the appellant. But I make it clear that it will be open to the appellant to file a comprehensive suit on title seeking appropriate reliefs in the matter. Any finding regarding title over the suit property if entered by the courts below will stand vacated. Needless to say that respondents will have the opportunity to defend that suit on whatever grounds as provided under law and as are available to them. Substantial questions of law framed are answered accordingly.

Without prejudice to the right if any of appellant to file a comprehensive suit on title as provided under law, this Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.