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2025 Supreme(Online)(KER) 2002
HIGH COURT OF KERALA
M.A. ABDUL HAKHIM, J
OTHAYOTH PADMINI – Appellant
Versus
C.V.MUHAMMED SAJID – Respondent
RSA 1135/2015
V.R. Kesava Kaimal, C. Devika Rani Kaimal, Sri. K.V. Sohan, Smt. Sreeja Sohan K.
In a suit for injunction, the plaintiff must prove possession as of the suit date; failure to do so results in dismissal of the appeal.
Headnote:(A) Kerala Co-operative Societies Act, 1969 - Rule 83(5) and Rule 84 - Kerala Co-operative Land Mortgage Bank Act, 1960 - Permanent prohibitory injunction - Plaintiff's suit dismissed as she failed to prove possession of the property as of the date of the suit - The defendant, as auction purchaser, was found to be in possession and had made improvements - The court held that delivery of possession does not require court intervention unless resisted by the defaulter. (Paras 6, 10, 15, 17)
(B) Injunction - The plaintiff must prove possession as of the date of the suit to succeed in an injunction claim - Non-examination of the plaintiff was detrimental to her case. (Paras 15, 16)
Facts of the case:
The plaintiff mortgaged property and defaulted, leading to an auction sale to the defendant. The plaintiff claimed continued possession despite the sale certificate issued to the defendant.
Findings of Court:
The defendant was found to be in possession and had made improvements; the plaintiff could not prove her possession.
Issues: Whether the plaintiff was in possession of the property at the time of filing the suit and the necessity of court intervention for delivery of possession.
Ratio Decidendi: The court ruled that the auction purchaser does not need to seek court intervention for delivery unless obstructed by the defaulter, and the plaintiff's failure to prove possession led to the dismissal of her suit.
Result: Regular Second Appeal dismissed.
Certainly. Based on the provided legal document, here are the key points summarized:
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The case involves a suit for a permanent prohibitory injunction filed by the plaintiff, who claimed continued possession of the property despite an auction sale in favor of the defendant (!) (!) .
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The trial court and the first appellate court both dismissed the suit, concluding that the plaintiff failed to prove her possession of the property as of the date of the suit (!) (!) .
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The property was mortgaged by the plaintiff, who defaulted, leading to an auction sale to the defendant. The defendant was issued a sale certificate, but there was no evidence that possession was delivered to the defendant through court proceedings or otherwise, and the defendant was found to be in possession and to have made improvements (!) (!) (!) (!) .
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The legal provisions regarding the issuance of sale certificates and delivery of possession indicate that delivery of possession does not necessarily require court intervention unless resisted by the defaulter or a person claiming in good faith to be in possession (!) (!) .
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The court clarified that the defendant, as an auction purchaser, was in possession and had made improvements, and that the mere issuance of a sale certificate does not automatically establish delivery of possession unless resisted (!) (!) (!) .
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The plaintiff failed to prove her possession as of the date of the suit, and her non-examination as a witness was considered detrimental to her case (!) .
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The court emphasized that in a suit for injunction, possession as of the date of the suit is crucial, and since the plaintiff did not establish her possession, she was not entitled to succeed (!) (!) .
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The provisions of the Kerala Co-operative Societies Act and the Rules made thereunder, as well as the Kerala Co-operative Land Mortgage Bank Act, were discussed. It was noted that the sale was conducted under the Kerala Co-operative Societies Act, and the provisions of the Land Mortgage Bank Act, including Section 17, were not applicable in this case (!) .
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The court found that the defendant was in possession and had made improvements, supported by evidence, and that the plaintiff did not provide sufficient proof of her continued possession or obstruction of delivery (!) (!) .
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Ultimately, the appeal was dismissed, affirming the judgments of the lower courts, with no substantial question of law requiring reconsideration (!) (!) .
JUDGMENT
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 Plaint schedule property 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 delivery is 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 Co- operative Land Mortgage Bank Act 1960.
7. On the other hand, the learned counsel for the 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 PW1, 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
