Varghese Mathew @ Mathew and Molly vs Rajan @ Joseph Joseph

M. Sasidharan Nambiar, J.—Plaintiffs in O.S.453 of 2000 on the file of Munsiff Court, Chalakkudy are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint A schedule property belongs to first appellant as per registered lease deed 2091/65 of S.R.O, Chalakkudy and has been in possession of the property and plaint B schedule property has been in his possession and enjoyment as assigned to him by Aluva Settlement and respondent has no right or possession over the property and he attempted to trespass into the property and therefore he is to be restrained by a permanent prohibitory injunction.

Respondent in his written statement contended that first appellant did not obtain the property under lease deed 2091/65 and he never cultivated the property and first appellant and respondent are the children of K.M.Varkey, a Pastor in the CSI Church, Aluva Settlement and he died on 10.5.1954 and his rights devolved on his wife and children including appellant, first respondent and sister Mary and they were looked after by the grandfather and after the death of Varkey, first appellant and respondent were allowed to continue their studies in Aluva Settlement and their mother filed an application before the Settlement Council knowing that properties are being given in the Settlement Colony and her husband was a pastor and then first appellant and respondent were continuing their studies, and three acres of land in Survey No. 482 of Kodassery Village was given to the family on lease and as the mother was young, the property was not given in the name of the mother as there is a likelihood of remarriage of the mother and to keep the property for the benefit of the family, and appellants are not entitled to claim exclusive right over the property. It was also contended that respondent and his mother started residing in the property in 1970 and first appellant was then residing at Kottayam and only respondent and the mother were cultivating the property and in 1976 they constructed a new house, started residing there and in 1977 respondent got a job in government service and he dug a well and improved the house. After the marriage of first appellant, he also resided there for five years and later he started to reside in a separate house and respondent, his wife, mother and sister were in possession of the property. In 1987, appellants shifted to a new house and at that time it became necessary to divide the property and accordingly with the intervention of District Panchayat member and ward member an oral partition was effected and A schedule property was divided into two equal shares and was allotted to first appellant and respondent and when they came to know that Government is issuing patta to the person in possession of the property in the Settlement Colony, first appellant and respondent and their mother decided to file application and accordingly mother applied for patta for plaint A schedule property and first appellant applied for patta in B schedule property and accordingly mother was given possession certificate from the Land Assignment Special Tahsildar, Thrissur in 1991 and it was so given in the name of mother and the house in the plaint B schedule property is in the name of mother and she is paying tax and when respondent shifted the house to Panamukku, house in the plaint B schedule property was closed and the key is in possession of respondent and it is being looked after by Joy and Chakkappan and appellants are not in possession of property and therefore they are not entitled to the decree sought for.

Learned Munsiff, on the evidence of PWs 1 to 3, Dws 1 to 4, Exts.A1 to A14, Exts.B1 to B5 and Exts.C1 and C2, dismissed the suit holding that appellants failed to establish that they are in possession of plaint schedule property and evidence establish that respondents have also right over the property. Appellants challenged the decree and judgment before Sub Court, Irinjalakuda in A.S.147 of 2003. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

Learned Counsel appearing for appellants was heard. The argument of the learned Counsel is that on the evidence, courts below should not have entered a finding on the question of title, when no issue regarding title was framed and the suit was only for injunction. Learned Counsel argued that in such circumstances, findings of courts below on the question of title is to be set aside.

On hearing the learned Counsel, I do not find any substantial question of law involved in the appeal. The suit is only for injunction simplicitor. The only issues framed by trial court are:

1) Whether plaintiff is in exclusive possession of the suit property.

2) Whether plaintiff is entitled for the injunction.

3) Reliefs and costs.

No issue regarding title was framed. Court fee u/s 27(a) of Kerala Court Fee and Suit Valuation Act was not paid. Learned Munsiff, on the evidence found that appellants did not establish their exclusive possession of the plaint schedule property. Learned Sub Judge, on reappreciation of evidence confirmed that finding. Exercising the powers of this Court u/s 100 of Code of Civil Procedure, it is not possible to reappreciate the evidence and substitute the finding of this Court to that of courts below with regard to factum of possession. As plaintiffs did not establish their possession of the property, they are not entitled to the decree for injunction sought for. The suit was rightly dismissed by courts below. To that extent, no substantial question of law is involved in the appeal.

There is force in the argument of learned Counsel that in the absence of an issue regarding title and being a suit for injunction simplicitor, courts below should not have decided the question of title. It is made clear that finding on the question of title will not debar appellants from claiming title in an appropriate proceedings.

Appeal is dismissed in limine.