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Vellakutty Vs. Karthyayani and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. 351 of 1967
Judge
Reported inAIR1968Ker170
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 21, Rules 35 and 5 - Order 34, Rule 1 - Order 39, Rule 1
AppellantVellakutty
RespondentKarthyayani and anr.
Appellant Advocate P.R. Namniar, Adv.
Respondent Advocate K.N. Karunakaran, Adv.
Cases ReferredState of Kerala v. Sadasivan Pillai
Excerpt:
.....settled law that where a court effects delivery, the court really puts such a person in physical possession of the property delivered and the aggrieved persons will have to seek re-delivery or to bring a fresh suit from this it follows that the court has to find prima facie possession with the plaintiff by virtue of the delivery. 'the granting of an in junction being a very serious matter in that it restrains the opposite parties from the exercise of then rights, the court does not issue the injunction unless it is thoroughly satisfied that there is a prima facie case in favour of the applicant'.(abdul qadeer v. the property independent of that advanced by the judgment-debtor unsuccessfully in all the courts in the hierarchy. (7) in the circumstances, no prima facie strong case of the..........interlocutory proceeding for a temporary injunction to restrain the defendants from entering the suit properties along with the institution of the suit, the plaintiff moved for and the munsif ordered interim injunction on april 7, 1965 on receipt of notice thereof the 2nd defendant entered appearance and prayed for cancellation of the interim injunction as regards plaint items 1 to 5 to which alone she claimed title and possession. the munsif allowed that prayer and limited the injunction to concern plaint items 6 to 9 on appeal by the plaintiff the district judge, palghat held the lower court to have gone 'wrong in vacating the interim injunction with regard to items 1 to 5', and finding the crocs on the properties to have been raised by the 2nd defendant directed the lower court to.....
Judgment:
ORDER

1.This motion has arisen in an interlocutory proceeding for a temporary injunction to restrain the defendants from entering the suit properties Along with the institution of the suit, the plaintiff moved for and the Munsif ordered interim injunction on April 7, 1965 On receipt of notice thereof the 2nd defendant entered appearance and prayed for cancellation of the interim injunction as regards plaint Items 1 to 5 to which alone she claimed title and possession. The Munsif allowed that prayer and limited the injunction to concern plaint Items 6 to 9 On appeal by the plaintiff the District Judge, Palghat held the lower court to have gone 'wrong in vacating the interim injunction with regard to Items 1 to 5', and finding the crocs on the properties to have been raised by the 2nd defendant directed the lower court to 'make suitable arrange-ments for harvesting the crops' The 2nd defendant has come up for a revision of that order.

(2) The facts are thus: The plaintiff is the first wife, and the 2nd defendant is the second wife of one Karuman who is no more. 1st defendant is the mother of the 2nd defendant and does not claim any interest in the suit properties The contest is between the plaintiff and the 2nd defendant only. Karumar had executed on December 1, 1949 a hypothecation in favour of the plaintiff over the plaint properties 9 in number and on December 23, 1949, a gift of plaint properties Nos. 1 to 5 with transfer of possession to the 2nd defendant Ext B-3 order, dated July 21. 1958 shows that in a proceeding moved by the plaintiff with Karuman and the 2nd defendant on the array of parties the plaintiff set up possession of the present suit Item No 5 but it was repelled by the Court which found possession with the 2nd defendant as per the gift of December 23. 1949 Thereafter the plaintiff instituted a suit in 1962 (O S. No. 183 of 1962) to enforce the hypothecation in her favour -- The 2nd defendant was not made a party to that suit -- and in execution of the decree obtained therein the plaintiff purchased in court-auction the suit properties. Ext. A-3 is a copy of the delivery report dated August 1, 1964 in that case. It shows that the delivery excluded the standing crops and buildings on the properties. On the above facts, which are not in dispute, the plaintiff claims title and possession as per the court sale and delivery had in O. S. No 183 of 1962, and the 2nd defendant claims title and possession as per the gift of 1949.

(3) Indeed, Karuman was party to the court-sale and delivery proceedings had in O. S No. 183 of 1962 and had subscribed in Ext A-3 acknowledging to have surrendered possession of the properties but, he had Rifted plaint Items Nos. 1 to 5 to the 2nd defendant as early as December 23, 1949; and in Ext. B-3 order of 1958 to which he end the plaintiff and the 2nd defendant were parties' the Court has declared the gift to have come to operation in possession. It is surprising that in spite of that declaration the plaintiff did not make 2nd defendant a party to her suit instituted in 1962 to enforce the hypothecation on the gifted properties. The equity of redemption was vested in the 2nd defendant. She alone could represent it in the suit. It, is trite law that an alienee-after-mortgase would not be affected by the decree and execution proceedings in a mortgage-suit to which he was no party. In Hargu Lal Singh v. Gobind Rai (1897) ILR 19 All 541 (FB), the plaintiff obtained a simple mortgage in 1879 and the defendants purchased the property in 1886 from the mortgagor. In the suit to enforce the mortgage only the original proprietor, but not his assignees, was made a party The property was brought to sale and purchased by the mortgagee in execution of his decree. He then brought the suit to enforce possession against the assignees of the mortgagor. Though the Munsif allowed it, the District Judge reversed him and dismissed the suit. On appeal, Edge C .J., speaking for a unanimous Full Bench of five Judges said: 'His simple mortgage did not entitle him to possession as against any one. His decree for sale being in a suit to which these defendant' were not parties had no effect as against them, and his purchase at the sale held under the decree conferred on him no title as against these defendants The result is that the plaintiff had no title to possession at the commencement of the suit against these defendants.' It follows that the proceeding had in O S No 183 of 1962 are incapable of affecting the title to or possession of the 2nd defendant.

The Munsif held that the acknowledgment of surrender by Karuman were not binding on the 2nd defendant that actual possession did not follow the delivery proceedings and that the 2nd defendant's possession got under the gift Ext B-1, continued undisturbed by the court-sale and delivery to which she was no party. The District Judge relying on Madhava Kurup Velayudha Kurup v. State 1953 Ker LT 31: AIR 19R3 Trav-Co. 340 and State of Kerala v. Sadasivan Pillai, 1959 Ker LT 501: 1959 Ker LJ 489 held

'that it is well settled law that where a Court effects delivery, the Court really puts such a person in physical possession of the property delivered and the aggrieved persons will have to seek re-delivery or to bring a fresh suit From this it follows that the Court has to find prima facie possession with the plaintiff by virtue of the delivery. So it is not necessary to consider the other documents produced by the parties to prove possession of the properties' I am afraid that in excluding consideration of the documents produced and relied on by the 2nd defendant, the District Judge has acted in the exercise of his jurisdiction illegally or at least with material irregularity and his order merits revision under Section 115 C. P. C. 'The granting of an in junction being a very serious matter in that it restrains the opposite parties from the exercise of then rights, the court does not issue the injunction unless it is thoroughly satisfied that there is a prima facie case in favour of the applicant'. (Abdul Qadeer v. Municipal Board, Moradabad. AIR 1955 All 414) It is also clear that a prima facie case implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction.

(4). It is pertinent to remember here that Karuman who professed to surrender the properties to the plaintiff had no possession (vide Ext, B-3) after he had gifted them to the 2nd defendant, that the possession purported to be delivered to the plaintiff by the Amin excluded the crops and buildings on the properties and that no evidence, except production of a copy of the delivery account had been given by the plaintiff. Neither the Amin who effected delivery, nor the plaintiff who took delivery has testified to it On the other hand, the 2nd defendant had proved the gift in her favour and a Court's declaration in 1958 against the plain tiff and Raruman that the gift had taken effect in immediate possession of the properties and she was no party to the proceedings relied on by the plaintiff The Munsif therefore had every reason to hold 'that the plaintiff has not prima facie proved her case of possession in respect of Items 1 to 5 and that the 2nd defendant has prima facie proved her pos session over Items 1 to 5 on the date of the suit' and thereupon to vacate the injunction as concerned the plaint Items 1 to 5.

(51 The District Judge reliance on the two precedents was misplaced and his non-advertence to the documents in proof in the case quite unwarranted In the Kurup's case, 1953 Rer LT 31: AIR 1953 Trav-Co. 340 (sic) the latter case State of Kerala v. Sadasivan Pillai 1959 KER LT 501 1959 Ker LJ 489 does not discuss the matter but only follows the dictum in theformer (19S3 Ker LT 31-AIR 1953 Trav-Co 340) the accused had been put in possession of a property with the crop thereon in redemption of a mortgage, repelling the contention of the mortgagee that the mortgage was fraudulent and the property belonged to his tarwad The mortgagee's sister then instituted a suit reiterating the identical contentions and seeking cancellation of the decree and execution proceedings in redemption; and, when the crop become ripe two months after the delivery to the accused by Court, she and her daughter and son-in-law entered the property and began to reap it Then the accused came to resist and the mortgagee came to assist the harvesting and in the fight that ensued both the parties received grievous injuries and the mortgagee's niece a fatal one. Case and counter-case were charged. The Amin who effected the delivery and the attesting wit-nesses thereto testified to the reality of the delivery proceedings, and there was no evi-dence that anybody other than the accused had any vestige of right in the property. The Sessions Judge convicted the accused and acquitted the mortgagee and his people. It was in the appeal from that conviction that Koshi C. J., with concurrence of Joseph Vithayathil J., observed:

'Once it is found that the Amin had gone to the post and put the decree-holders in physical possession, if persons other than the judgment-debtor claims to be in possession on the date of that delivery, the remedy open to them was to seek redelivery under the provisions enacted in Order XXI, Code of Civil Procedure or to bring a fresh suit to recover possession. Except in the case of symbolic delivery when a Court effects as delivers to a decree-holder or to a court-auction-purchaser the court really puts such persons in physical possession of the property delivered Its effect is not merely to dispossess the Judgment-debtor but also other person? In possession who if aggrieved will have to resort to one or the other remedy referred to There is no meaning in saving that such delivery is only as against the judgment-debtor alone.'

I am afraid the dictum in the above passage has been laid too broadly It may be justified in the circumstances of that case where the mortgagee resisted an action in redemption urging patently false pleas on behalf of his tarwad, got worsted in all the courts and was at last ousted, and then his sister picked up the string and instituted a fresh suit for cancellation of the decree and execution proceedings urging the identical contentions and trespassed on the property with her people and began to reap the crop thereon heedless of the protest made by the owner to whom the property had been delivered by Court. A fight ensued in which the mortgagee also joined: and the question was who took the law unlawfully into his or her hands The court held the act of the mortgagee and his sister, niece and nephew-in-law to be unwarranted. The evidence inthe case was clear that the owner had been put in physical possession of the property by Court, that the mortgagee and his tarwad had no right in the property after redemption and that the mortgagee's relations when they began to harvest the crop were defying the law and rightful possession of the land by its real owner. It was in these circumstances that the afore-cited observations were made by their Lordships in the Kurup's case. If judicial observations are to be understood secundum subjectam materiam (with reference to the subject-matter), 'the other persons' bound by the possession proceedings are the members of the family of the judgment-debtor who urge no right in: the property independent of that advanced by the judgment-debtor unsuccessfully in all the Courts in the hierarchy. But if the, general expression in the quotation is taken, to mean that in every case a delivery proceeding would bind not only the judgment-debtor but any and every in the world it would be an astounding proposition. Rights in immovable property cannot be left to the mercy of an Amin deputed to carry out a delivery order of the Court. They can be affected only by judicial determinations.

(6) It has been said repeatedly and uni-formly that a decree for money or for property and an execution sale would affect only the right, title and interest of the Judgment-debtor. It, follows that a proceeding had in pursuance of such a decree or court sale cannot affect a larger interest or a larger group of persons. Here, in this case the delivery proceedings expressly excluded the crop and the structures on the land. Neither the Amin nor any of the attestors concerned in the delivery proceedings has been cited Excepting the delivery report, no evidence as to the reality of the delivery proceedings, which is seriously challenged by the 2nd defendant, has been adduced. The 2nd defendant has shown a gift of the properties to her by the admitted owner and also that her possession under that gift has, in a judicial proceeding, long before the institution of the present suit, to which the plaintiff and the gift or were parties, been declared The exclusion of the crop and the structures on the properties shows that the delivery was more or less symbolical.

(7) In the circumstances, no prima facie strong case of the kind requisite for the grant of a temporary injunction can be said to have been made out in the case The assertion in the plaintiff's affidavit in support of her prayer for temporary injunction that the defendant have no right to the properties is an utter lie to her knowledge in view of Ext B-3 order. Hide-and-seek is not the procedure for obtaining temporary injunction Any party who is seen to have suppressed from Court material facts In his or her knowledge does not deserve the grant of am discretionary relief -- much leas a temporary injunction to the oppression ofothers during the pendency of the suit. The grant of temporary injunction by the District Judge, in reversal of the Munsif, was quite unwarranted in this case.

(8) I reverse the order of the District Judge and restore that of the Munsif with costs to the petitioner in this revision petition, inclusive of counsel's fee Rs. 75.


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