Dismissed

The Plantation Corporation of Kerala v. a.K.Abdul Rahiman

Kerala HC17 Oct 2016RSA/649/2016

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a suit where the plaintiff sought a mandatory injunction instead of possession. The High Court upheld the lower courts' finding that recovery of possession was the proper remedy due to the defendant's 30-year possession and lack of clean hands by the plaintiff.

What did the court decide?

Appeal dismissed; lower court's finding that suit for recovery of possession was the proper remedy upheld.

The Plantation Corporation of Kerala Vs a.K.Abdul Rahiman — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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RSA.No. 649 of 2016 (B)

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AGAINST THE JUDGMENT DATED 30-09-2014 IN AS 7/2010 of DISTRICT COURT, KASARAGOD

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AGAINST THE JUDGMENT DATED 30-11-2009 IN OS 291/2007 of ADDL.MUNSIFF COURT, KASARAGOD

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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THE PLANTATION CORPORATION OF KERALA LTD. REPRESENTED BY ITS PRINCIPAL OFFICER, MANAGER, KASARAGOD ESTATE, MULIYAR, MULIYAR VILLAGE, KASARAGODE.

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BY ADV. SRI.RAJU SEBASTIAN VADAKKEKARA, SC

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RESPONDENT(S)/RESPONDENT/DEFENDANT::

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A.K.ABDUL RAHIMAN S/O.IBRAHIM, AMAKALA HOUSE, EMKAJE VILLAGE, KASARAGODE TALUK, P.O.PERLA, KASARAGODE DISTRICT-670644.

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BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR

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ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.649 of 2016

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Dated this the 17^th day of October, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The appellant/plaintiff who had suffered failure before the courts below have come up before this Court challenging the concurrent findings that the suit originally filed by him is not properly framed and the reliefs sought for can never be granted in view of the evidence on record. According to the plaint averments, the plaintiff Corporation is the owner in possession of the plaint A schedule property and the defendant has got certain assigned properties in his name on the south of the plaint A schedule property. The defendant made an attempt to trespass into the plaint A schedule property on 7.9.2007 and that attempt was resisted by the plaintiff. Subsequently, on 12.9.2007 the defendant with his men trespassed into a portion of the plaint A schedule

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RSA.649/16-B :2:

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property on the south-western portion and constructed a small piece of new compound wall to make it appear that that portion belongs to him. On the above averments the plaintiff prayed for a decree directing the defendant to surrender the vacant possession of that portion of the plaint A schedule property, which is in their possession, and to remove the compound wall and other structures by issuing a mandatory injunction and also restraining the defendant from making any further encroachment over the plaint A schedule property.

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The defendant has contended that the description of the plaint A schedule property is not correct and the survey numbers of the property shown in the description are not correct. A portion of R.S.No.833/2A was originally assigned to the grand father of the defendant as per D.R. No.82/1956 and it was in his possession along with some other properties for the last so many years and thereafter as per the registered partition deed No.774/1974 there was a partition among his children. B schedule property therein with some property was allotted to one Abdu

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RSA.649/16-B :3:

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Rahiman and in the year 1977, Abdu Rahiman assigned the said property to one Beera Moideen and he came to be in possession of the property. The said Beera Moideen as per registered sale deed No.616/05 executed in favour of his wife. Later she executed sale deed No.709/05 assigning 14 cents to the defendant with other portion of the same survey number and an extent of 10 cents to the brother of the defendant with some more portions and accordingly they are in possession of the same. It is further contended that the defendant and his predecessors in interest were in effective possession of the same continuously as of right with hostile animus and to the knowledge of the Government and the plaintiff has perfected his title by adverse possession and limitation. It is with this pleading the defendant has prayed for dismissal of the suit.

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On the above rival pleadings the plaintiff examined P.W.1 and marked Exts.A1 and A2. On the other hand, the defendant produced Exs.B1 to B15 and no oral evidence was adduced by him. The commission reports

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RSA.649/16-B :4:

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were marked as Exts.C1 to C3. After analysing the aforesaid evidence the trial court arrived at a finding that the defendant is not a mere trespasser as alleged by the plaintiff and he has been in possession and enjoyment of the property for more than 30 years. But the plaintiff has not claimed any relief in the plaint for recovery of possession. Instead, the plaintiff has claimed relief of permanent prohibitory injunction against the defendant and for mandatory injunction to remove the improvements which he has made during the last 30 years. So, the proper remedy for the plaintiff is to file a suit for recovery of possession and the relief as prayed for cannot be granted in view of the evidence on record.

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Feeling aggrieved, though the plaintiff had preferred an appeal, the appellate court also concurred with the aforesaid findings of the lower court and observed that the suit for recovery of possession on the strength of plaintiff's title is the proper remedy. Thus, the concurrent findings whereby the courts below dismissed the suit are assailed in this Regular Second

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RSA.649/16-B :5:

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Appeal.

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Heard the learned counsel for the appellant.

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The learned counsel for the appellant advanced arguments challenging the findings of the courts below that the suit for mandatory injunction is not the proper remedy and the plaintiff ought to have filed a suit for recovery of possession in view of the evidence available on record. On the other hand, the learned counsel for the respondent advanced arguments to justify the findings whereby the courts below dismissed the suit.

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The short question that arises for consideration in the appeal is, whether the courts below are justified in finding that the suit for recovery of possession is the proper remedy and the mandatory injunction cannot be granted, in view of the right and possession of the defendant over the property since the last more than 30 years.

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Even though the defendant has disputed certain survey numbers in the plaint description and asserted right over the property comprised in Sy.No.833/2A1 the

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RSA.649/16-B :6:

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trial court rightly rejected the said contentions and arrived at a finding that the identity of the property is very clear and the defendant has no right in the property comprised in Sy.No.833/2A1. The trial court refused to grant mandatory injunction on the basis of the facts revealed from Exts.C1 to C3 reports filed by the Commissioner. In support of the title and possession over the property the defendant had produced Exts.B1 to B5 and B15. In Exts.C1 & C3 reports the Commissioner has noted that the south-western part of the plaint A schedule property is in possession of the defendant. It contains a tiled house aged about 30 years and an old cattle shed. The Commissioner stated that the above mentioned property contained two coconut trees aged about 30 years and two categories of arecanut trees, one category aged 46 years and another one aged 2 to 4 years and some plantains.

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Besides, the Commissioner has noted that the portion of the plaint A schedule property comprised in Sy.No.2A1/2 contains five houses therein and they belong to the brothers of the defendant. The Commissioner

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RSA.649/16-B :7:

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further stated that the defendant has constructed laterite stone compound wall and it is cement plastered and half of the compound wall is constructed by using boulder stones. In Ext.C3 report the Commissioner has stated that the defendant is in possession of an extent of 0.17 acres in R.S.No.2A1/2.

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As rightly observed by the courts below, it is discernible from the commission report that aforesaid portion of the plaint A schedule property has been in possession and enjoyment of the defendant since the last so many years and they are not mere trespassers on 7.9.2007 as alleged by the plaintiff in the suit and the plaintiff has not come up with clean hands before the court seeking relief. As rightly observed by the court below in the backdrop of Exts.C1 to C3 and Exts.B1 to B15 it can be safely concluded that the cause of action alleged by the plaintiff is false and made without bona fides. Suffice to say, reliefs cannot be granted to the plaintiff, who has come up before the court, with unclean hands. This Court also agrees with the concurrent views of the courts below

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RSA.649/16-B :8:

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that the proper remedy was to file a suit for recovery of possession. The courts below are justified in finding that the suit is not a properly framed one. There is no illegality or impropriety in any of the findings whereby the courts below rejected the reliefs prayed for in the plaint. This Regular Second Appeal fails and dismissed accordingly.

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All pending interlocutory applications will stand closed.

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Sd/K.HARILAL, Judge.

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okb

The Plantation Corporation of Kerala v. a.K.Abdul Rahiman

Case brief

What is this about?

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The Plantation Corporation of Kerala v. a.K.Abdul Rahiman

Case brief

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