Point of Law : Order XLII Rule 2 provides power of Court to direct that the appeal be heard on the question formulated by it.

JUDGMENT :

This Regular Second Appeal has been filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure, challenging decree and judgment in A.S.No.34 of 2019 dated 23.12.2022 on the files of the District Court, Thodupuzha, arising from decree and judgment dated 28.10.2019 in O.S.No.262/2014 on the files of Munsiff Court, Devikulam. Appellant in this Second Appeal is the sole plaintiff in the above Suit and the appellant in the First Appeal. Respondents are the defendants in the Suit.

2. Heard the learned counsel for the appellant on admission.

3. The parties in this appeal shall be referred as to their status in the Suit as 'plaintiff' and 'defendants' hereafter for easy reference.

4. The Suit was one filed seeking the relief of prohibitory injunction restraining the defendants and men under them from trespassing into the plaint schedule property, annexing a portion of the same into their possession, destroying the boundaries, boundary marks and cultivation in the plaint schedule property, committing any sort of waste and mischief therein the plaint schedule property and in any manner interfering with the peaceful possession and enjoyment of the same by the plaintiff.

5. According to the plaintiff, the plaintiff got right and possession over the plaint schedule property on the strength of an unregistered agreement dated 28.04.2009 executed by one K.V. Paulose. The specific case was that the said Paulose obtained right and possession over 2 1/2 acres of land including the plaint schedule property as per another agreement dated 01.08.1988. The plaintiff pressed for grant of prohibitory injunction to protect his possession based on agreement dated 28.04.2009.

6. The defendants entered appearance and countered the Suit. The possession of the plaint schedule property by the plaintiff on the strength of agreement dated 28.04.2009 executed by K.V. Paulose was denied. The specific allegation raised by the defendants was that the said agreement was created by the plaintiff in collusion with K.V. Paulose for the purpose of filing the Suit. It was also contended that K.V. Paulose never had possession of plaint scheduled property at any point of time. The further contention that K.V. Paulose obtained right and possession over 2 1/2 acres of property as per agreement dated 01.08.1988 executed by Advocate G.N. Thampi also was denied and it was specifically contended that no person by name Advocate G.N. Thampi ever lived in the locality and any item of property covered by the agreements dated 01.08.1988 and 28.04.2009.

7. Referring to the rival contentions, the trial court ventured the matter. PWs 1 to 5 examined and Exts.A1 to A11 were marked on the side of the plaintiff. Exts.C1 and C1(a) were marked as court exhibits. No evidence let in by the defendants.

8. The trial court dismissed the Suit mainly on four grounds. It was found by the learned Munsiff that agreement dated 28.04.2009 marked as Ext.A1 is not admissible in evidence, since the said document, which created a right over the plaint schedule immovable property having value of more than Rs.100/-, requires registration as mandated under Section 17 of the Registration Act. It was also found that Ext.A1 could not also be used for collateral transaction under Section 49 of the said Act since the document has been pressed into to prove possession and possession is not a collateral transaction or collateral purpose. Similarly, the trial court also disbelieved Exts.A2 and A11 reports of the Village Officers since PW4, the Village Officer, Rajakumari, had given evidence before the court stating that the same were issued by one Stanley John and one Gopal Pillai, but they were not examined to prove the same and PW4 could not account for the same. Further, proceedings of the Tahsildar, Udumbanchola issued, relying on Exts.A2 and A11 also were not produced by the plaintiff, to prove his case. Although the said decree and judgment were challenged before the appellate court, t