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V.Y. Thomas @ Sajimon v/s V.Y. Joseph


Company & Directors' Information:- A V THOMAS AND CO LTD [Active] CIN = U51109KL1935PLC000024

Company & Directors' Information:- J THOMAS & CO PVT LTD [Active] CIN = U51909WB1947PTC015276

Company & Directors' Information:- THOMAS AND COMPANY PRIVATE LIMITED [Active] CIN = U45201DL1997PTC085284

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    CRP. Nos. 868 & 869 of 2019

    Decided On, 09 March 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE B. SUDHEENDRA KUMAR

    For the Petitioner: V.M. Syam Kumar, P.F. Rosy, Kripa Elizabeth Mathews, Sneha Rajiv, Advocates. For the Respondent: R1, Sebastian Paul, Ben Tom, Varada Surendran, Advocates.



Judgment Text

1. The petitioner in these revision petitions is the defendant in O.S.No.160 of 2019 on the files of the court below. The plaintiff filed the above suit praying for a decree of permanent prohibitory injunction restraining the defendant and others under him from trespassing into the plaint schedule property and forcibly setting up residence therein and making any threat or challenge to the plaintiff. Along with the suit, the plaintiff filed I.A.No.868 of 2019 praying for an interim prohibitory injunction inter alia restraining the defendant from trespassing into the plaint schedule property and interfering with the peaceful enjoyment of the property by the plaintiff. After the appearance of the defendant, the defendant filed I.A.No.1501 of 2019 praying for an order of interim prohibitory injunction, restraining the plaintiff and his men from interfering with the peaceful living of the defendant and his family in the plaint schedule property and from evicting the defendant from the plaint schedule property forcibly without recourse to due process of law.2. The learned Munsiff as per common order dated 10.04.2019, dismissed I.A.No.866 of 2019 and partially allowed I.A.No.1501 of 2019, against which the plaintiff filed appeals. As per common judgment dated 18.11.2019 in CMA Nos. 3/2019 and 4/2019, the Appellate Court allowed the appeals setting aside the order passed by the Munsiffs court. Aggrieved by the said common judgment, these revision petitions have been filed by the defendant.3. Heard both sides.4. It is not disputed that the plaintiff is the younger brother of the defendant. The plaintiff is a priest, working in Italy. He used to come to India regularly. While so, the plaintiff and the defendant together purchased the plaint schedule property in the year 2008 as per Ext.A1 sale deed. Thereafter, as per Ext.A2 release deed, the defendant released his right over the above said property in favour of the plaintiff for a total consideration of Rupees Eight lakh.5. The contention of the plaintiff is that after the execution of Ext.A2 release deed on 12.09.2014 also, one of the keys of the house was entrusted with the defendant, as a care taker of the said building, being the brother of the plaintiff. Thereafter, on 23.01.2019, the plaintiff was informed from the diocese that a complaint was filed against the plaintiff by the defendant claiming right over the plaint schedule property. It is contended by the plaintiff that even though the defendant had tried to trespass into the plaint schedule property in January, 2019, the attempt of the defendant could not be succeeded due to the timely intervention by the plaintiff and others.6. It is not disputed that at the time of purchasing, there was no building in the property. The plaint schedule property, having an extent of 3.80 ares was purchased in the name of the plaintiff and the defendant for a total consideration of Rupees Four Lakh. The plaintiff would contend that the said amount was paid by the plaintiff and it was only for the purpose of doing necessary things in the property in the absence of the plaintiff that the property was purchased in the joint name of the plaintiff and the defendant. Thereafter, the building was constructed by the plaintiff in the said property. The defendant was entrusted with one of the keys of the building, as a care taker, to do necessary things in the absence of the plaintiff.7. The defendant, on the other hand, would contend that the defendant has been residing in the building in the plaint schedule property ever since its construction in the year 2013 and hence the defendant cannot be evicted from the said building without the authority of law. It has been further contended by the defendant that Ext.A2 document was a sham document, as the said document was executed only for the purpose of availing loan from the bank and that the parties never intended to act upon the said document. Since it was contended by the defendant that the defendant did not receive any amount as stated in Ext.A2, the learned Counsel for the plaintiff produced the passbook of the bank of the plaintiff showing the payment made by the plaintiff to the defendant, for the perusal of this Court. Thereafter, the learned Counsel for the defendant consulted with his client and submitted that the defendant received the amount.8. Since the question to be considered is the question of granting interim order of injunction, the paramount consideration must be the possession of the parties over the plaint schedule property.9. As per Ext.A1, the plaintiff and the defendant were the joint owners of the plaint schedule property, having an extent of 3.80 ares, excluding the building therein. Thereafter, the building was constructed in the said property. The construction was over in the year 2013. It is borne out from Ext.A1 that the plaintiff became the absolute owner in possession of the plaint schedule property having an extent of 3.80 ares and the building therein after the execution of the release deed by the defendant. The plaintiff also produced Ext.A3 Memo issued from the Municipality, Ext.A4 tax receipt and Ext.A5 receipt issued from the Municipality, showing that the plaintiff is in possession of the plaint schedule property.10. In order to prove the possession of the plaint schedule property, the defendant produced Exts.B1 to B3 bills issued from the Kerala Water Authority, Ext.B4 receipts issued from KSEB and Ext. B5 receipts issued from the cable TV. It is admitted by the plaintiff that the defendant and other members of his family used to come and stay in the plaint schedule property till 23.01.2019 along with the plaintiff, whenever the plaintiff was in India. The plaintiff used to reside in the building whenever he came to Alappuzha, is the contention of the plaintiff. Thus the plaintiff came to the plaint schedule building on 23.01.2019 for a short stay on his arrival from Italy. At that time, the plaintiff was summoned by the Bishop of Alappuzha to enquire about a complaint made by the defendant against the plaintiff. The complaint was to the effect that the plaintiff prevented the defendant from residing in the plaint schedule building. On enquiry, the defendant stated that he would continue to reside in the building. The defendant and his wife prevented others from entering into the house proclaiming their intention to keep the house in their exclusive possession. However, due to the timely intervention by the plaintiff and others, his attempt could not be succeeded. At present, the plaintiff is in exclusive possession of the plaint schedule building, contended by the plaintiff.11. The first question to be considered is as to whether the defendant is having possession over the building in the plaint schedule property or not. Exts.B1 to B5, would not, in any way, show that the defendant was in possession of the plaint schedule building at any time after January, 2019. This Court asked the learned Counsel for the defendant as to whether the defendant was having any electricity bill or water bill pertaining to the year 2019, the learned Counsel answered in negative. The defendant also did not produce any document like Aadhar Card, Voters ID card etc to show the prima facie possession of the defendant over the plaint schedule building.12. The learned Counsel for the defendant has argued that since there is a finding in the report submitted by the Advocate Commissioner that the defendant is residing in the plaint schedule building with his family, this Court has to hold that the defendant is in possession of the plaint schedule building. It is true that the Commissioner had reported that the defendant was in possession of the plaint schedule building at the time of his visit to the property. The Commissioner also noted computer code, revolving chair and dresses in the upstair portion of the building. The plaintiff's dresses, compute code, revolving chair etc were also found in the building by the Commissioner. Now the question to be considered is as to whether the report of the Commissioner that one party is in possession of the property can be accepted by the Court.13. Rule 9 of Order 26 CPC provides for local investigation by the Commission, which is extracted hereunder:-“Commissions to make local investigations - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court”.14. The opening line of Order 26 Rule 9 of CPC would show that it is the Court, which deems fit for the purpose of elucidating any matter in dispute, may issue a Commission directing the Commission to make local investigation. It is clear from Order 26 Rule 9 CPC that the Commission can be appointed when the Court thinks it necessary for conducting any local investigation. The very wording is local investigation and the purpose of local investigation is to elucidate any matter in dispute, which itself indicates permissibly of collection of evidence, in respect of matters which cannot be effectively proved, like measurement, demarcation, identity of the property, the physical features etc., by oral evidence.15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D.Kuttiyappan v. Meenakshiammal Polytechnic Unit [(2005)4 MLJ 592] held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment. I respectfully agree with the view of the High Court of Madras in D.Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.16. The Three - Judge Bench of the Apex Court in Rame Gowda (Dead) By LRS. v. M.Varadappa Naidu (Dead) By LRS. and Another [(2004) 1 SCC 769] held in para 8 thus: -“It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands, and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injecting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring , intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner”.17. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. The Court must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth rather than merely relying on the report of the Commissioner.18. The possession is important when there is no title document or other relevant record before the court. However, once the document of title comes before the court, it is the title which has to be looked at first and due weightage be given to it. The possession cannot be considered in vaccum.19. There is a presumption that possession of a person, other than the real owner, if at all it is to be called possession, is permissive on behalf of the titleholder. Further, the possession of the past is one thing and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has been much abused and misused before the Court. 20. The person averring a right to continue in possession shall, as far as possible, give a specific pleading along with the documents to support his claim and details of subsequent conduct which establish his possession.21. The Three - Judge Bench of the Apex Court in Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De Sequeira [(2012) 5 SCC 370] held in paragraph 70 thus:-''It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:a) who is or are the owner or owners of the property;b) title of the property;c) who is in possession of the title documents;d) identity of the claimant or claimants to possession;e) the date of entry into possession;f) how he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;h) if taken on rent, licence fee or lease-then insist on rent deed, licence deed or lease deed;i) who are the persons in possession/ occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc.;j) subsequent conduct i.e any event which might have extinguished his entitlement to possession or caused shift therein; andk) basis of his claim that not to deliver possession but continue in possession.”22. While dealing with the civil suit, at the threshold, the court must carefully and critically examine the pleadings and documents. All those documents would be relevant which come into existence after the transfer of title or possession claimed. The Court will examine the pleadings for specificity as also the supporting materials for sufficiency and then pass appropriate orders.23. The Apex Court, further held in Maria Margarida Sequeira Fernandes (supra) thus:-“In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the year till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence”.24. It is a settled principle of law that no one can take the law in his own hand. Even a trespasser in settled possession cannot be dispossessed without recourse to law. The Apex Court in Maria Margarida Sequeira Fernandes (supra) observed in paragraph 79 thus:-“Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”25. The Apex Court in Ramrameshwari Devi v. Nirmala Devi [(2011) 8 SCC 249] observed that unless wrong-doers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation.26. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. In order to grant or refuse injunction, the judicial officer or the judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give a short notice on the injunction application and pass an appropriate order after hearing both sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. It appears that in a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the courts do not critically examine pleadings and documents on record.27. In this case, it appears that the plaintiff is the owner of the plaint schedule property as is seen from Ext.A1 sale deed and Ext.A2 release deed. Exts.A3 to A5 would also indicate that the plaintiff is having possession over the said property. Thus the plaintiff has prima facie proved his title and possession over the property. Exts.B1 to B5 produced by the defendant are not at all sufficient to show that the defendant was ever in possessio

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n of the plaint schedule property after January, 2019. This Court had already found that the report of the Commissioner alone cannot be acted upon, to indicate the possession of a person over the plaint schedule property. It is not discernible as to why the defendant could not produce any document to prove his possession over the plaint schedule building after January, 2019. Even though the defendant contended that Ext.A2 release deed was executed by the defendant to enable the plaintiff to obtain a loan, it is not disputed that no loan has been so far availed by the plaintiff, mortgaging the plaint schedule property. There is absolutely no material before the Court to show the possession of the defendant over the plaint schedule property after January, 2019. The document produced by the defendant would not show that the defendant was ever in possession of the plaint schedule property after January, 2019. The address of the defendant in the plaint, in these revision petitions and also in the vakalath filed before this Court and the court below would indicate that the defendant is residing in House No.51/271. However, the building in the plaint schedule property is having the No.1/271. The above fact would also lead to the prima facie inference that the defendant is not residing in the plaint schedule building as contended by the defendant. From the materials on record and the pleadings available, the contention of the plaintiff appears to be correct. It is true that the plaintiff is working in Italy as a priest. However, he used to come to the plaint schedule property frequently. Merely because the plaintiff is working as a priest in Italy, it cannot be said that the plaintiff is not having possession over the building. Therefore, the observation in this regard by the Munsiffs Court cannot be correct.The above discussion would lead to the prima facie inference that the plaintiff is the owner in possession of the plaint schedule property and the defendant had no possession over the plaint schedule property as on the date of the suit and in the said circumstances, the common judgment passed by the appellate court, dismissing the prayer of the defendant and allowing the prayer of the plaintiff in part, does not want any interference by this Court.In the result, these Revision Petitions stand dismissed.
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