Unnikrishna Varier vs Narayana Kammathy and Rama Varier

Thomas P. Joseph, J.—3rd defendant in O.S.No.406 of 2002 of the court of learned Munsiff, Vaikom is aggrieved by the decree for prohibitory injunction confirmed by the learned Additional District Judge (Special), Kottayam in A.S.No.23 of 2007. 1st respondent/plaintiff filed the suit for a decree for prohibitory injunction against trespass into the southern portion of suit property and construction of compound wall. According to the 1st respondent, he got title and possession of the suit property, one cent in sy.No.194/3A and building thereon as per settlement deed No.731 of 1999 (a copy of which is marked as Ext.A1) executed by his father, Narasimha Kammathy who claimed to have got the property as per Ext.A5, Kanappattam deed No.1461 of 1070 ME. It is also stated that the suit property was set apart to the share of Narasimha Kammathy as per partition deed No.1635 of 1112 ME. He is said to have obtained purchase certificate as per Ext.A2, order of the Inam Land Settlement Officer in O.S.No.100 of 1982. Ext.A4 is the purchase certificate relied on by the 1st respondent. Exts.A6, A7 and A9 are produced to show payment of revenue for the suit property and tax for the building thereon.

Appellant/3rd defendant contended that 1st respondent/plaintiff has no title or possession of the property as per settlement deed No.731 of 1999 and that the entire property on southern side of the building is in the possession of appellant, his having obtained it as service inam land. His mother, Parvathy Warasiar filed O.S.No.204 of 1982 in the Sub Court, Kottayam for partition and obtained a decree.

Trial court found in favour of possession claimed by 1st respondent and granted a decree for prohibitory injunction making certain observations regarding title claimed by 1st respondent. That was confirmed by the first appellate court.

Learned counsel for appellant contended that the property involved is service inam land obtained by Perumthrikkovil Wariam, the tarwad of appellant. According to the learned counsel, Ext.A2, order or Ext.A4, purchase certificate will not affect the title of appellant over the suit property since no notice of the said proceeding was issued to the appellant. It is contended that to get purchase certificate from the Inam Land Settlement Officer, 1st respondent or his predecessor-in-interest should have been doing service in the temple. In this case the family of appellant was doing service in the temple. Learned counsel requested that at any rate, since the suit is only for prohibitory injunction paying court fee u/s 27(c) of the Kerala Court Fees and Suits Valuation Act (for short, "the Act"), finding of the courts below regarding title cannot stand. Learned counsel requested that if at all this Court is not inclined to interfere with the finding of possession entered by the courts below, right of appellant to seek appropriate relief on the strength of title claimed by him may be left open.

Learned counsel for 1st respondent contended that there is no reason to interfere with the findings of the courts below. According to the learned counsel, no evidence is produced by the appellant to show that his tarwad was doing service in the temple so that the inam land should have gone to that tarwad.

Since the suit is merely for prohibitory injunction paying court fee under Sec. 27 (c) of the Act, the suit should have been decided based on possession alone.

Courts below have concurrently found that 1st respondent is in possession of the suit property and having heard learned counsel and gone through the judgments under challenge, I do not find any substantial question of law involved so far as that finding is concerned. But, since the suit is for prohibitory injunction alone paying court fee under Sec. 27(c) of the Act, it was not necessary for the courts below to enter into finding on title over the disputed property. So far as dispute on title is concerned, parties must go for a comprehensive suit and that is not to be decided in a suit for prohibitory injunction. Therefore I am inclined to vacate the finding entered by the courts below regarding title over the suit property without making any commend on the acceptability or otherwise of contentions raised by either side on that question and leaving it open to the parties to agitate that question in appropriate proceedings. Resultantly, the Second Appeal is dismissed. But it is made clear that the finding/observation made by courts below regarding title over the disputed property will stand vacated leaving it open to the parties to agitate the same in appropriate proceedings as provided under law.

All pending interlocutory applications will stand dismissed.