Skip to content


Karthiyayani Amma Vs. Govindan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 801 of 1979-C
Judge
Reported inAIR1980Ker224
ActsSpecific Relief Act, 1963 - Sections 38
AppellantKarthiyayani Amma
RespondentGovindan
Appellant Advocate Varghese Kalliath and; Joseph Vadakel, Advs.
Respondent Advocate P.H. Sankaranarayana Iyer, Adv.
DispositionAppeal allowed
Cases ReferredKesavan Bhat v. Subraya Bhat
Excerpt:
.....ofhis possession resist interference from persons who have no better title than himself to the suit property. once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not approved to have a better title than himself of the suit property. on the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. ' basing on this observation, it was contended that the supreme court should be deemed to have decided that a person in possession without title could successfully resist..........ofhis possession resist interference from persons who have no better title than himself to the suit property. once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not approved to have a better title than himself of the suit property. on the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily.'basing on this observation, it was contended that the supreme court should be deemed to have decided that a person in possession without title could successfully resist interference.....
Judgment:

V. Khalid, J.

1. Plaintiffs l to 3 are the appellants. The suit was for a declaration of title and possession and also for an injunction to restrain the defendants from interfering with the plaint property and destroying a boundary (Wada). The trial Court decreed the suit declaring that the plaintiffs had title and possession over 67 cents of plaint schedule property and that the plaintiffs were entitled to get the wada, which existed on the western boundary of the plaint schedule property, restored. In appeal, the Appellate Court set aside the decree and judgment of the trial Court. Hence this Second Appeal.

2. The dispute in this case relates to 17 cents of land which, as per the documents of title, forms part of the 1st defendant's property which is 1-17 acres in extent. The plaintiffs have as per their documents of title property only of 50 cents in extent. The plaintiffs did not have a consistent caseregarding the extent of the property. In the original plaint, the extent of the property was shown as 7 cents. Later it became 17 cents by two amendments in the plaint. The entire property originally belonged to one tarwad. By various assignments the plaintiffs became entitled to the 50 cents of land called '(Expression in Malayalam omitted -- Ed.)' and the defendant to a property with an extent of 1.17 acres. For the purpose of this second appeal, I held that the property to which the plaintiffs are entitled as per their documents of title to be 50 cents in extent and that to which the 1st defendant is entitled to be 1 acre 17 cents in extent. In doing so, I confirm, the decree of the Appellate Court declining the plea of declarations of title claimed by the plaintiffs.

3. The bone of contention in this second appeal relates to the existence of a wada at the eastern extremity of the property belonging to the 1st defendant and the western extremity of the property which the plaintiffs claimed to be in possession. I say so advisedly because the claim now put forward, as seen in the amended plaint, is a claim to 67 cents of property that is 17 cents in excess of what is seen in the documents of title of the plaintiffs. The learned counsel for the respondents strenuously contended that the wada was an imaginary boundary because there was no mention of 6 wada in any document of title. This is so, but, from the evidence in this case and the findings entered by the Courts below, it is possible to infer that something like a wada existed on the ground at the time the suit was filed. There is no evidence in this case as to when the wada came into existence. Suffice it to say for the purpose of this second appeal that a wada existed at the time the suit was filed. It was contended by the respondents' counsel that the amended plaint had given a go-by to the rase that the wada existed in between the plaintiffs and defendants' property. This may not be strictly correct because there is mention of the existence of the wada in the body of the plaint and is the 1st schedule attached to the plaint Be that as it may, it is evident from the 1st Commissioner's report, which has been referred to by the Courtsbelow, that the wada existed on the property. According to the appellants the cause of action for the suit itself was the attempt of the defendants to demolish this wada. The trial Court has found in para 10, last sentence, as follows:

'The mahazar prepared by the urgent Commissioner is conclusive to show that there was a wada on the western side of paradaivaparambu.' The Appellate Court has observed as follows in para 6 of the judgment:

'These circumstances establish that the wada noted in Exts. C-5 and C-6 was in existence of the disputed boundary line viz., the western boundary of the disputed 17 cents.' The second appeal has to be decided with these findings entered by the Courts below of the existence of a wada between the properties of the plaintiffs and the defendants. The trial Court found possession with the plaintiffs. The Appellate Court after considering the Commissioner's report held as follows:--

'The existence of wada, stated above, and the similarity of the nature of both the disputed 17 cents and the eastern 50 cents are the only two circumstances, to support plaintiffs' claim of possession of the disputed 17 cents.'

The learned Judge proceeded to consider other circumstances which, according to him, would take away the effect of the two circumstances mentioned above. I have considered that part of the judgment in the context of the evidence in the case and the Commissioner's report. I find that the evidence is in favour of the plaintiffs' case that they have been in possession of the property some time prior to the suit. Though the Appellate Judge found that the 50 cents and the disputed 17 cents were similar in nature, concluded by saying that the disputed 17 cents of land did not form part of paradaivaoarambu and was not in the possession of the plaintiffs on the date of suit. This finding was entered without any evidence. I find from the 1st Commissioner's report that he had noted the existence of the wada and marks of destruction of certain portions. The 3rd Commis-sioner (second Commissioner's report was set aside as per agreement between the parties) has not observed the existence of the wada but has observed heaps of sand at the place where the plaintiffs asserted that the wada existed. The Commissioner's reports indicate that the 17 cents were treated as part of the 50 cents. From these materials, I hold that the Appellate Court erred in holding that the plaintiffs had no possession over the property in dispute.

4. It is on this finding of possession that the second appeal has to be disposed of. Notice was issued on the following question of law by this Court:

'Even assuming that the plaintiffs have failed to prove title to the property, are they not entitled to an injunction on the strength of their possession?'

The question which falls to be decided in the case is whether a person in possession without lawful title can sustain an action for injunction against a person who has lawful or better title. This question was considered by Raman Nayar, J., as he then was. in Vasudeva Kurup v. Ammini Amma (1964 Ker LT 468). It was held that a person in possession could obtain protection against all invaders of his enjoyment even if the invader be the true owner. I had occasion to consider this question in S. A. No. 721 of 1978-B and I observed :

'I am in respectful agreement with the proposition of law laid down in 1964 Ker LT 468. To hold otherwise, would be to allow owners asserting right and title over the property to take the law into their own hands and interfere with the peaceable possession of persons though trespassers.'

The above judgment of Raman Nayar, J. was considered by a Division Bench of this Court in Narayanan v. Mathai (1966 Ker LT 1) : (AIR 1966 Ker 179) which expressed no opinion on it, but said:

'The point decided in 1964 Ker LT 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one's possession, (para 18). Raman Nayar, J., again spoke in 1966 Ker LT 323 (337) : (AIR 1966 Ker 286) (DB) (N. S. S. case) reiterating what he had said earlier. Said the learned Judge:

'And the several High Courts are at one in holding that a person in possession, even if he be a mere trespasser, can, on the strength of his possessory title, get back possession from any person, (except the true owner) who dispossesses him, if he brings a suit within the 12 years limited by law -- if he brings it within 6 months under Section 9 of the Specific Relief Act he can recover possession even from the true owner.'

This decision was confirmed by the Supreme Court in N. S. S. Ltd v. Rev. Fr. Alexander (1968 Ker LT 182) : (AIR 1968 SC 1165). There was some discussion at the bar as to what exactly is the correct position of law regarding this aspect of the case in the context of the observations of the Supreme Court in M. K. Setty v. M. V. L. Rao (AIR 1972 SC 2299). In para 5 of the said judgment occurs the following sentence :

'The plaintiff can on the strength ofhis possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first Appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not approved to have a better title than himself of the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily.'

Basing on this observation, it was contended that the Supreme Court should be deemed to have decided that a person in possession without title could successfully resist interference of his possession only from persons who had no better title, suggesting thereby that a person with better title could interfere with the possession of such a person. With great respect, the above sentences cannot be read to formulate such a position of law. There the Supreme Court was considering the dispute between two persons who put forward rival titles, but one of them alone proved possessory title. There the defendant's title was not considered by the trial Court, the Appellate Court or the High Court. The High Court dismissed the suit holding that the plaintiff did not satisfactorily prove his title, disregarding the concurrent findings of possession by the Courts of fact. It was in this context that the above observations were made by the High Court. It is not permissible nor is it proper to read a judgment as a statute. Sentences occurring in a judgment have to be read in the proper context. It may not be correct to say that casual observation in a Supreme Court judgment or even obiter dicta unconnected with the facts of the case under discussion and not laying down any proposition of law have binding force as law declared by the Supreme iCourt under Article 141 of the Constitution. The Supreme Court itself has laid down the guideline how to understand its judgments and not to tear sentences out of context in Municipal Committee v. Hazara Singh (AIR 1975 SC 1087) : (1975 Ker LT 275). In my view, with utmost respect, the sentences extracted above do not lay down anything different from what has been laid down by this Court in the decisions cited above.

5. The dictum so laid down fell to be considered by two Division Benches of this Court in Alavi v. Mohammed-kutty Haji (1973 Ker LT 937) : (AIR 1974 Ker 100) and Narayana Menon v. Rallandi (1973 Ker LT 983). In 1973 Ker LT 937 : (AIR 1974 Ker 100) Nambiyar, J., as he then was, referring to AIR 1972 SC 2299 observed as follows:--

'We find nothing in these decisions to support the broad principle contended for by the counsel for the respondents that a person in possession, even if it be wrongful, is not entitled to an injunction against the true owner till his possession is lawfully terminated by duo process of law.'

Both the Division Benches approved the principles laid down in 1964 Ker LT 468 though in those cases the Division Bench was considering the propriety of a reference under Section 125 (3) of the Kerata Land Reforms Act in a suit for injunction.

6. The correctness of the Division Bench rulings referred above was tested by a Full Bench of the Court in Lissy v. Kuttan (1376 Ker LT 571 (FB)). There the Full Bench was considering the correctness of the earlier decisions whether in a suit for injunction also, a reference to the Land Tribunal was necessary. The Full Bench held that it was necessary since a question of tenancy was indirectly involved and this overruled the two earlier Division Bench decisions. 1973 Ker LT 937 and 1973 Ker LT 983. All these questions again fell for consideration before a Fuller Bench in Kesavan Bhat v. Subraya Bhat (1979 Ker LT 766) : (AIR 1980 Ker 40). The Fuller Bench has now given its seal of approval to the principles earlier enunciated. The Fuller Bench overruled 1976 Ker LT 571 and held that the decision in 1973 Ker LT 937 : (AIR 1974 Ker 100) and 1973 Ker LT 983 were rightly decided.

7. The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession.

8. On a consideration of the various aspects of the case, I hold that the Appellate Court erred in setting aside the decree granting injunction to the plaintiffs. The question formulated in the Second Appeal has therefore to be answered in favour of the appellants. I allow this Second Appeal, but, in the circumstances of the case, I direct the parties to bear their costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //