Dismissed

Saidalavi & Others v. Panchali & Others

Kerala HC10 Sept 2013FAO/377/2011

Case brief

AI extract

What is this about?

Appeal against a High Court order remanding a suit for injunction to consider the title of suit property on payment of court fee. The Court held that identification (measurement) of the property is required for the injunction decree, but payment of court fee under Sec.27(a) for a title enquiry is not necessary when relief is sought based on possession alone.

What did the court decide?

The substantial questions of law are answered; the appeal is dismissed without order as to costs.

Saidalavi & Others Vs Panchali & Others — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935

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FAO.No. 377 of 2011 ( )

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AS. NO.103/2006 OF SUB COURT, OTTAPPALAM. OS. NO.78/2004 OF MUNSIFF MAGISTRATE COURT, PATTAMBI.

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APPELLANTS/RESPONDENTS 1, 3 TO 14/PLAINTIFFS:

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1. SAIDALAVI, AGED 72 YEARS, (DIED), S/O.NELLASSERI VEERNAKUTTI, NAGALASSERI AMSOM, CHALPRAM DESOM, OTTAPALAM TALUK.

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SUPPLE:

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2. KADEEJA, AGED 61 YEARS, W/O.NELLASSERY SAIDALAVI.

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CHILDREN:

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3. SUABIDA, 48 YEARS.

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4. MUHAMMED, 44 YEARS.

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5. JAMEELA, 45 YEARS.

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6. T.ABDUL RAZAK, 42 YEARS.

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7. RASHEED, 35 YEARS.

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8. SHAHUL HAMEED, 37 YEARS.

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9. JAMAL, 29 YEARS.

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10. HASEENA, 27 YEARS.

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11. SAKKEENA, 24 YEARS.

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12. BUSHARA, 23 YEARS.

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13. SHAJI, 28 YEARS.

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(ALL ARE RESIDING AT NELLASSERY HOUSE, SOUTH VAVANNOOR P.O., OTTAPALAM TALUK).

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IMPLEADED AS PER ORDER IN IA. NO.3733/08 DATED 11/12/2009.

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BY ADVS.SRI.K.J.SAJI ISAAC, DR.ELIZABETH VARKEY.

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FAO.No. 377 of 2011

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RESPONDENTS/APPELLANTS 1 TO 4 & RESPONDENT NO.2/DEFENDANTS:

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1. PANCHALI, AGED 62 YEARS, D/O.THACHOTH KUNHAN AND W/O.CHOLAMPARAMBIL KRISHNAN.

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CHILDREN:

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2. CHANDRIKA, AGED 41 YEARS.

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3. VASU, AGED 50 YEARS.

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4. RAJAN @ UNNIKRISHNAN, AGED 42 YEARS,

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ALL ARE RESIDING AT NAGALASSERI AMSOM, CHALPRAM DESOM, OTTAPALAM TALUK, PIN-679 533.

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5. PAMBAVASAN, AGED 34 YEARS, S/O.CHOLAMPARAMBIL KRISHNAN, CHOLAMPARAMBIL HOUSE, NAGALASSERI AMSOM, CHALPRAM DESOM, OTTAPALAM TALUK, PIN-675 533.

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R1 TO R 3 BY ADVS. SRI.SANTHEEP ANKARATH, SRI.SUMODH MADHAVAN NAIR.

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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THOMAS P.JOSEPH, J.

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========================= F.A.O. No. 377 of 2011

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============================ Dated this the 10^th day of September, 2013

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J U D G M E N T

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This appeal arises from the judgment dated 28.10.2011 in A.S. No. 103 of 2006 of the Sub Court, Ottapalam setting aside judgment and decree of the Munsiff's Court, Pattambi in O.S. No. 78 of 2004 and remanding that case for fresh decision.

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The following substantial question of law are raised for a decision:-

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1. Whether in a suit for injunction against trespass it was necessary for the lower appellate court to have directed an enquiry into title on payment of court fee under Sec.27(a) of the Kerala Court Fees and Suit Valuation Act (for short, “the Act”)?

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1. Whether, when the lower appellate court could have decided the appeal on the evidence on record,

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F.A.O. 377 of 2011

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it was necessary to direct a remand enlarging

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scope of the suit ?

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The deceased original plaintiff claimed title and possession of the property described in the plaint schedule – 51 ½ cents in survey No. 412/2 and 413/1 of Nagalasseri village as per Ext.A1, assignment deed of the year, 1981 executed by Talu, Karuppan and Madhavi. He claimed that the said property is bounded by the panchayat road on the west, kudiyiruppu on the north and east and lane on the south. Property on the immediate north of the suit property originally belonged to the deceased first defendant who entered into certain transaction regarding portion of her property in favour of her children. Alleging that the deceased first defendant attempted to trespass into the suit property, the original plaintiff sought a decree for prohibitory injunction.

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The original defendant denied title and possession

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F.A.O. 377 of 2011

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claimed by the deceased plaintiff over the entire extent of the suit property and claimed that the portion now claimed as a way leading from the courtyard of the deceased plaintiff and extending to the panchayat road on the western side formed part of property which belonged to the deceased plaintiff.

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The trial court found that the suit property is in the possession and enjoyment of deceased plaintiff and granted a decree for prohibitory injunction.

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The defendants 1 and 3 to 5 challenged that judgment and decree in the Sub Court, Ottapalam in A.S No. 103 of 2006. Learned Sub Judge thought that in view of the contentions raised by the parties, identification of the suit property with reference to documents of title and payment of court fee under Sec.27(a) of the Act is necessary. So holding, judgment and decree of the trial court were set aside and the suit was remitted to that court

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F.A.O. 377 of 2011

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for fresh decision.

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Learned counsel for the appellants/legal representatives of deceased original plaintiff contends that there was no reason to upset finding of the trial court regarding possession claimed by the deceased plaintiff over the suit property extending up to the panchayat road on the west particularly in view of Exts. C1 and C2, report and sketch submitted by the Advocate Commissioner and the descriptions therein. It is argued that in a suit for injunction it is not necessary for the court to go into the complicated issue regarding title. It was possible for the lower appellate court to have decided the issue based on the evidence on record. Hence the remand was not called for, it is argued.

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Learned counsel for the respondents contends that right from the beginning the respondents have denied title of deceased plaintiff over the entire property referred to in

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F.A.O. 377 of 2011

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the plaint schedule. According to the learned counsel, there is mis-description of the western and eastern boundaries of the suit property in Ext.A1 which also was highlighted by the respondent in the trial and lower appellate courts. Learned counsel argues that in view of the contentions raised by the respondents as to the title claimed by the deceased plaintiff over the entire suit property, identification of the property with reference to the measurements given in Ext.A1 was necessary which alone was directed by the learned Sub Judge. It is argued that the remand order does not call for interference.

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May be that the respondents disputed title claimed by the deceased plaintiff over the entire suit property. But the learned Munsiff did not think it necessary to frame any issue regarding title. Under Sec. 27(a) of the Act, a plaintiff is required to pay court fee as provided therein when the plaintiff alleges that his title to the property is denied (by

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F.A.O. 377 of 2011

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the defendants) or where an issue is framed regarding plaintiffs' title to the property.

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Now the question is whether in view of the relief sought for by the deceased plaintiff and now asserted by the appellant the remand of the case to identify the property with reference to the document of title is necessary ? When complicated questions of title are involved in a suit for injunction the parties should be relegated to a comprehensive suit on title. Such complicated questions of title are not required to be decided in a suit for injunction. In the present case, true that the original plaintiff claimed title and possession over the suit property as per Ext.A1. But reference to Ext.A1 need only be to trace possession which the original plaintiff claimed over the suit property. According to the respondents, the strip of land shown by the Advocate Commissioner in Exts. C1 and C2 as a way originating from the panchayat road and leading to the

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F.A.O. 377 of 2011

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courtyard of the original plaintiff is part of property which originally belonged to the first respondent/first defendant.

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It is not very much in dispute that the property on

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the immediate north of the suit property even as described in the plaint schedule and extending upto the panchayat road on the western side (I do not forget that the respondents have a contention that the western property description in Ext.A1 is not correct) and abutting the said property belonged to the first respondent as per Ext. A3, partition deed No. 1607 of 1908. The first respondent assigned a portion of the property to the 4^th respondent as per Ext. A6, assignment deed No. 2242 of 1998. In Ext.A6, property assigned by the first respondent in favour of the 4^th respondent is described as bounded by the property of the deceased first plaintiff on the east, Mannante kudiyiruppu on the south, panchayat road and rest of property on the west and north. Learned counsel for the appellants would

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F.A.O. 377 of 2011

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contend that the eastern boundary description in Ext.A6 would show that the suit property belonged to the deceased plaintiff.

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The 4^th respondent assigned property he got as per Ext.A6 to the second respondent as per Ext.A7, document No. 1171 of 2000. There also, boundary descriptions given is as per Ext.A6 and as stated above. The first respondent then assigned northern portion of the property already assigned to the second respondent as per Ext.A5, document No. 1894 of 1999. There, southern boundary description is the property given to the 4^th respondent and the way to the property. While learned counsel for the respondents contends that the said way is the way shown by the Advocate Commissioner in Exts. C1 and C3, learned counsel for the appellants would contend that the way referred to as on the southern boundary of Ext.A5, property is the way on the immediate north of the disputed way and leading to

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F.A.O. 377 of 2011

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the property of the 4^th respondent.

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Reliance is made by the learned counsel on both sides to Exts. C1 and C3. Going by Exts. C1 and C3, it would appear that there are hedge plants on either side of the disputed portion of the suit property with certain openings to the property of the respondent.

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The appellants are not prepared to say that they do not want the title claimed by them over the suit property to be considered in the appeal. I must also notice that in Ext.C3, the property on the north of the disputed way is shown as belonging to Gangadharan Nambair ( this fact is not disputed by either sides) and that the said Gangadharan Nambiar obtained the property as per Ext.B1 of the year, 1982. In Ext.B1, northern boundary of that property is described as kudiyiruppu. It is pointed out by the learned counsel for the respondents that kudiyirupu is of the respondents and that if there was any such way as claimed

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F.A.O. 377 of 2011

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by the appellants, forming part of the suit property and extending up to the road on the western side, the northern boundary description in Ext.B1 of the year, 1982 ( after Ext.A1 of the year 1981) should have been the disputed way and at any rate, property belonging to the assignors under Ext.A1. Learned counsel argues that the northern boundary description in Ext.B1 would show that property on the immediate north of property of Gangadharan Nambiar belonged to and was in possession of the respondents. It is also argued that there is no case for the original plaintiff and for that matter, the appellants that there is any way on the south of the disputed way through the property admittedly belonging to the respondents.

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I am inclined to think that having regard to the above, a proper identification of the suit property is essential even for the grant of decree for prohibitory injunction. It is necessary to measure the properties as

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F.A.O. 377 of 2011

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directed by the learned Sub Judge.

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But, that identification is for the purpose of granting a decree based on possession if ultimately it is found that property identified by the Advocate Commissioner is in the possession and enjoyment of the appellants. For that, payment of court fee under Sec.27(a) of the Act is not required. But I make it clear that based on the report and plan the Advocate Commissioner would submit after identification of the suit property, it is open to the parties to amend their pleadings if such a situation arises and seek appropriate reliefs. I make it clear that so far as the appellants confine their relief to a decree for prohibitory injunction based on possession alone it is not necessary for them to pay court fee under Sec.27(a) of the Act.

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In the above view of the matter, I do find reason to interfere with the judgment of learned Sub Judge.

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F.A.O. 377 of 2011

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The substantial questions of law framed are

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answered as above.

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Resultantly, with the observations made above, the appeal is dismissed without any order as to costs.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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//true copy//

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P.A. to Judge

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Smv

Saidalavi & Others v. Panchali & Others

Case brief

What is this about?

What did the court decide?

Saidalavi & Others v. Panchali & Others

Case brief

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