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2025 Supreme(Ker) 173
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J.
OTHAYOTH PADMINI D/O ACHUTHAN – Appellant
Versus
C.V. MUHAMMED SAJID S/O KHALID – Respondent
R.S.A. No. 1135 of 2015
Decided On : 10-01-2025
Advocate Appeared:
For the Appellants : V.R. KESAVA KAIMAL, C. DEVIKA RANI KAIMAL
For the Respondents: K.V. SOHAN, SREEJA SOHAN K.
In a suit for injunction, the plaintiff must prove possession as of the date of the suit; failure to do so results in dismissal.
Headnote:(A) Kerala Co-operative Societies Act, 1969 - Rule 83(5) and Rule 84 - Kerala Co-operative Land Mortgage Bank Act, 1960 - Section 17 - Permanent prohibitory injunction - Plaintiff sought injunction against auction purchaser claiming continued possession of property - Courts found plaintiff failed to prove possession and that auction purchaser was in possession - No requirement for court delivery of property when no resistance from defaulter. (Paras 6, 10, 14, 15)
(B) Injunction - In a suit for injunction, the material fact is the possession as on the date of the suit - Non-examination of the plaintiff is fatal to the case. (Paras 15, 16)
Facts of the case:
The plaintiff mortgaged property and defaulted, leading to auction sale. The defendant purchased the property but the plaintiff claimed continued possession and sought an injunction against trespass.
Findings of Court:
The courts found that the plaintiff did not prove possession and that the defendant was in possession, thus dismissing the suit.
Issues: The main issues were whether the plaintiff was in possession of the property and the necessity of court delivery for the auction purchaser.
Ratio Decidendi: The court ruled that the auction purchaser does not need to obtain delivery through court if there is no resistance from the defaulter, and possession as of the date of the suit is crucial.
Result: Regular Second Appeal is dismissed.
JUDGMENT :
M.A. ABDUL HAKHIM, J.
1. The Plaintiff in a suit for permanent Prohibitory injunction is the appellant.
2. The Trial Court dismissed the suit. The First Appellate Court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the Trial Court. This Regular Second Appeal is filed challenging the judgment and decree of the First Appellate Court confirming the Trial Court judgment. This Court had issued notice before admission in this Regular Second Appeal, and hence, the respondent has appeared.
3. I heard the learned counsel for the appellant, Sri. V.R.K. Kaimal and the learned counsel for the respondent, Sri. K.V. Sohan.
4. The facts of the case are more or less admitted. The plaintiff derived the Plaint Schedule property having an extend of 5.85 Acres as per Ext.A1 Sale deed of the year 1997. Plaintiff mortgaged the said property in the year 1997 with Madayi Co-operative Rural Bank Ltd. for availing a loan of Rs.5,00,000/- executing Ext. A6 mortgage deed. On account of the default committed by the plaintiff to repay the loan, the property was put in an auction sale on 21.11.2002. The defendant purchased the plaint schedule property in the said auction, and the auction was confirmed on 03.01.2004. He was issued with Ext. B1 Sale certificate dated 01.10.2004 and Ext. B2 Assignment dated 31.12.2004.
5. The present suit is filed on 06.09.2005 seeking a permanent prohibitory injunction restraining the defendant and his men from trespassing into the Plaint Schedule property and committing any waste therein and from evicting the plaintiff from the Plaiproperty other than by due process of law. The suit is filed on the principal contention that the defendant did not take delivery of the property pursuant to the Certificate of Sale issued by the Bank and the possession continued with the plaintiff.
6. The learned counsel for the appellant contended that mere issuance of a Sale Certificate under Rule 83 (5) of Kerala Co-operative Societies Rules is not sufficient to obtain delivery of the property. On issuance of a Sale Certificate under Rule 83(5), the Purchaser has to obtain the delivery through the process of the court. He has to obtain the delivery through the Competent Civil Court through the proceedings under Order 21 Rule 95 CPC. Admittedly, the defendant has not obtained delivery through Civil Court under Order 21 Rule 95 CPC. A mere statement in Exts.B1 and B2 that already given to the purchaser is not sufficient. Ext.A6 Mortgage Deed would show that in spite of the execution of the creation of the mortgage, the Plaint schedule property continued in the possession of the plaintiff. Even the Mortgagee Bank has not obtained possession of the property for delivering the same to the auction purchaser. There is no document to show that the purchaser obtained the delivery of the property from the plaintiff/defaulter. The learned counsel further contended that there is a specific provision under Section 17 of the Kerala Co-operative Land Mortgage Bank Act, 1960, to take delivery of property by the purchaser. The defendant purchaser has not obtained delivery through the proceedings under Section 17 of the Kerala Cooperative Land Mortgage Bank Act 1960.
7. On the other hand, the learned counsel respondent submitted that there is no provision either in the Kerala Co-operative Societies Act or in the Rules made thereunder to take delivery of possession from the defaulter. The question of obtaining delivery through court arises only in the case of an obstruction from the part of the defaulter. The Trial Court, as well as the First Appellate Court, has rightly found that the defendant is in possession of the Plaint Schedule Property. The plaintiff did not mount to the Witness Box. The evidence of PW-1, who is the daughter of the plaintiff, would show that even though she claimed that the entire improvements in the plaint Schedule properties were made by the plaintiff, she was unable to give details of the improve
