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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.ABDUL HAKHIM, J.
Peekkara Veetil Kunhiraman(Died,Lhrs Impleaded) - Appellant
Versus
Thekkeveetil Narayanan, S/O.Mani Amma - Respondents
RSA NO. 565 OF 2011
Decided on : 07-04-2025
(A) Civil Procedure Code, 1908 - Order 21 Rule 101 - Kerala Land Reforms Act - Section 72(K) - Permanent prohibitory injunction - Plaintiff claimed kuzhikanam right over property, while defendant obtained Purchase Certificate - Trial Court decreed in favor of plaintiff, but First Appellate Court reversed the decision - The plaintiff failed to prove title and possession over the plaint schedule property, and the defendant's evidence was found more credible. (Paras 5 , 10 , 17 )
(B) Possession and Title - The burden of proof lies on the party asserting possession - The absence of evidence from the defendant does not absolve the plaintiff from proving his claim. (Paras 12 , 17 )
Facts of the case:
The plaintiff claimed possession of 79.388 cents of land, asserting kuzhikanam rights, while the defendant contended ownership through a Purchase Certificate. The plaintiff alleged trespass and sought an injunction after the defendant cut trees on the property. (Paras 1 , 2 )
Findings of Court:
The First Appellate Court found that the plaintiff did not satisfactorily prove his possession or title, and the defendant's claims were more credible. (Paras 9 , 17 )
Issues: Whether the First Appellate Court was justified in reversing the Trial Court's decree without proper evidence appreciation. (Para 10 )
Ratio Decidendi: The court held that the plaintiff must prove possession and title, and the absence of evidence from the defendant does not negate the plaintiff's burden to establish his claim. (Paras 12 , 17 )
Result: Regular Second Appeal dismissed.
JUDGMENT :
1. The plaintiff in a suit for permanent prohibitory injunction is the appellant. The plaint schedule property originally is shown as 85 cents of land in R.S.No.181/2 of Perole village. After the filing of the Ext.C1 Commission Report and Ext.C1(a) Plan, the extent was amended as 79.388 cents of land. Both sides admit that the Jenmom right of the plaint schedule property belonged to Vettakkorumakan Devaswom.
2. The plaintiff claimed that the plaintiff obtained kuzhikanam right over the plaint schedule property 50 years back. The defendant obtained Purchase Certificate with respect to an extent of 2 Acre 50 cents of land including the plaint schedule property as per order in I.A.No.10919/75. Immediately upon knowing the issuance of the Purchase Certificate, the plaintiff filed an Appeal before the appellate authority, and the same is pending consideration. The plaintiff is in possession and enjoyment of the plaint schedule property and paying government taxes and rent to the jenmi and making improvements. The plaint schedule property consists of improvements like jack tree, Kurukuthi tree cultivated by the plaintiff. The cause of action for filing the suit is that the defendant trespassed into this property on 06.04.2008 and cut the trees in the plaint schedule property and he tried to take possession of the property.
3. The defendant opposed the suit prayers by contending inter alia that the plaintiff is a proxy of the defendants in O.S.No.32/1996 filed by the plaintiff for recovery of possession. The defendant obtained delivery of the property on 27.10.2007. According to the defendant, the defendant obtained kuzhikanam right orally from the Vettakkorumakan Devaswom, Nileswar and had been regularly paying the purappad to the jenmee and thereafter purchased the jenm right as per order in O.A.No.10919/75. The plaintiff is a total stranger to the plaint property and he has no right title or possession over the property.
4. On the side of the plaintiff, the plaintiff was examined as PW1 and his son was examined as PW2. Exts.A1 to A7 were marked from the side of the plaintiff. No oral evidence was adduced from the side of the defendants. But Exts.B1 to B15 documents were marked from the side of the defendant. The Commission Report was marked as Ext.C1 and the Rough Sketch was marked as Ext.C1(a).
5. The Trial Court decreed the suit in favour of the plaintiff restraining the defendant by a permanent prohibitory injunction from trespassing into the plaint schedule property and cutting the existing trees and putting fire to the leaves and committing waste and damages.
6. The defendant filed Appeal before the First Appellate Court and the same was allowed setting aside the judgment and decree of the Trial Court and dismissing the suit.
7. Both the Trial Court as well as the First Appellate Court found that there is no dispute with regard to the identity of the property.
8. The Trial Court found that the plaintiff has got possession over the plaint schedule property as Ext.B1 to B10 documents produced by the defendant are not binding on the plaintiff as he was not a party to the said proceedings. The Trial Court also found that no oral evidence was adduced from the side of the defendant to prove the possession over the suit property. Exts.A1 to A5 proved the possession of the suit property.
9. The First Appellate Court found that the possession of the plaint schedule property could not be found in favour of the plaintiff as Exts.A1 to A5 do not show that the same relates to the plaint schedule property. The plaintiff has not explained the difference of the extent in the plaint schedule property and the property identified by the Advocate Commissioner. It is also found that the plaintiff did not make necessary pleadings with respect to the tenancy claimed by the plaintiff. No reason is stated for not obtaining a Purchase Certificate even after the advent of the Kerala Land Reforms Act. Even though no attempt was made by the defendant t
The burden of proof lies on the party asserting possession, and failure to establish title and possession results in dismissal of the claim.
Possession rather than title was determinative in resolving the dispute concerning property ownership.
In a suit for injunction, reliance must be placed on evidence of possession rather than solely on ownership titles. Courts must establish actual possession before granting injunctions.
A person in settled possession is entitled to protect their possession against even the true owner, regardless of title.
Proper identification of properties based on respective title deeds supported by old survey plan and new survey plan is necessary to grant reliefs sought in a suit for injunction and counter claim fo....
Possession under Section 53-A of the Transfer of Property Act can be protected against third parties, even without a formal sale deed, if established through credible evidence.
In actions for injunctions, plaintiffs must demonstrate lawful possession and seek a declaration of title when ownership is disputed; failure to do so renders the suit unmaintainable.
Possession is essential for claiming title in property disputes; absence of possession negates the right to seek injunction.
Possession established through admissions is sufficient for granting permanent injunction against unlawful interference.
The law establishes that possession of property is sufficient for injunction relief, even in absence of title documents if ownership is admitted.
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