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2019 DIGILAW 20 (KER)

Xavier Thomas v. K. P. Johnson

2019-01-09

P.SOMARAJAN

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JUDGMENT : A suit for injunction in O.S.No.578/1998 of Sub Court, Thrissur ended in dismissal. It was taken up in appeal wherein the First Appellate Court reversed the finding of the Trial Court and decreed the suit granting injunction against trespass and causing obstruction to the peaceful possession of the plaint schedule property. Aggrieved by the said reversal by the First Appellate Court, the 2nd defendant came up with this appeal. 2. The subject matter of the suit comes to 5 acres and 2 cents. Before its amendment, 4 cents takes in from Re-Survey No.1272/1, 2 acres 85 cents from 1272/2, 1 acre 63 acres from 1277/1 and 49 ½ cents from 1277/2. An application was filed to amend the plaint schedule description so as to suit with the extent in various survey numbers reported by the Commissioner on measurement. But it was not allowed. The property comprised in old Survey No.539 is having a large extent of more than 600 acres, which were divided into more than 124 plots in various re-survey numbers. Based on which it was argued by appellant that the property claimed by the plaintiff is unidentifiable and the decree passed by the First Appellate Court is liable to be set aside. 3. Inter alia another contention was also raised that the plaintiff has acquired possession from one Bukhari based on an unregistered agreement. At that time, he was only a minor and for and on behalf of him, his father took possession in the year 1981 and after attaining majority, he is possessing the property and enjoying the same. The right and possession obtained by Bukhari is also under challenge. 4. According to the plaintiff, he had obtained possessory right over the property by virtue of a court sale conducted in DROP No.71/76 of the Sub court, Thrissur. It was originally in possession of one Sri.Madhavan. It is a government land. In order to recover the amount due from the above said Madhavan, his assets were sold in DROP, in which item No.2 was the plaint schedule. Sri.Madhavan was in unauthorised possession and enjoyment of the property and the title and ownership of the property was vested with the Government at that time. It is a government land. In order to recover the amount due from the above said Madhavan, his assets were sold in DROP, in which item No.2 was the plaint schedule. Sri.Madhavan was in unauthorised possession and enjoyment of the property and the title and ownership of the property was vested with the Government at that time. Based on which, it is submitted by the learned counsel for the respondent that there is nothing left over the property at the time of DROP proceeding and the court sale over the property. What is held by Sri.Madhavan over the property cannot even brought under the purview of settled possession and if it is assumed for a moment that he was in settled possession, it cannot brought under the purview of any alienable rights or transferable right over the immovable property with the person, who was in possession of the property. 5. Exts.A2 to A5 were brought to the notice of this Court besides the oral testimony of PW2 to PW6 by the plaintiff so as to show acquisition of possession over the property. Exts.A2 to A5 are the documents relating to the proceedings in the DROP. PW2 is the witness to the unregistered agreement alleged to have been executed between Bukhari in favour of minor plaintiff. PW4 is none else the Bukhari, who alleged to have obtained possession of the property from the receiver in a court auction in the DROP proceedings against the original possessor, Sri.Madhavan. PW5 is the document writer, who prepared the unregistered agreement in favour of the plaintiff. PW8 is the Advocate Commissioner, who prepared Ext.C2 plan pertaining to the plaint schedule property and PW9-Taluk Surveyor, who was examined by the plaintiff, to show the identity of the property, besides the examination of PW6, one of the neighbouring property owner. Based on which, it was argued that the item No.2 in DROP proceedings in execution is the plaint schedule property and it was rightly located by the Advocate Commissioner in Ext.C2 plan. 6. The first question raised is (1) what actually the right, if any, enjoyed by the plaintiff over the property?. Is it a possessory right or possessory title? If not, whether he can maintain a suit for injunction for protecting his possession, either being a person in possession or as a person, who is in settled possession of the property. 6. The first question raised is (1) what actually the right, if any, enjoyed by the plaintiff over the property?. Is it a possessory right or possessory title? If not, whether he can maintain a suit for injunction for protecting his possession, either being a person in possession or as a person, who is in settled possession of the property. (2) what would be the general principle governing a person in possession or a person in settled possession of a property having no title or ownership over the property, either in maintaining a suit under Section 6 of the Specific Relief Act, 1963 are a regular suit? (3) Can the principle governing Section 6 of the Specific Relief Act, 1963 be applied in a regular suit based on settled possession of the property?. 7. The decision rendered by the Apex Court in Nair Service Society Ltd. v. Rev.Fr. K.C. Alexander [ 1968 KLT 182 ] and Gangadharan v. Janaki Amma [1969 KLT SN (not given) page no.31, case no.2] by this Court brought to the notice of this Court show that, what actually amounts to a right to possess property and right to protect possession. 8. Before going into these two decisions, it is necessary to appreciate what actually obtained by the plaintiff by virtue of the unregistered document alleged to have been executed by Bukhari and the oral evidence tendered by PW2 to PW6. Admittedly, Sri.Madhavan was an unauthorised occupant/ possessor of Government land scheduled in the plaint. In so far as a tress passer/unauthorised occupant/unauthorised possessor is concerned, (1) he can be a person merely occupying or possessing the property, or (2) he can be a person in settled possession of the property or (3) he would be a person who had perfected title over the property by possessory right by way of adverse possession and limitation. In so far as a possessor or a person in settled possession is concerned, it cannot be said that he had acquired/obtained any right or interest over the property, though he may be in the pursuit of acquiring right or interest over the property by lapse of time by holding property adverse to the interest of the owner, and hence, he is amenable to eviction by due process of law, but till that time, the possession can be protected by means of an injunction. But it cannot be treated as a right over the immovable property, though, he can maintain a right to be evicted by due process of law even against a lawful owner. In the instant case, the plaintiff admittedly would fall under the first two categories. 9. On coming into the decision drawn by the Apex Court in Nair Service Society Ltd. (supra) and the decision of this Court in Gangadharan v. Janaki Amma (supra), principally, these two decisions were rendered with respect to the application of Section 9 of Specific Relief Act,1877. Though Section 9 not pari materia, with that of Section 6 of the Specific Relief Act, 1963, the principle embodied therein are one and the same and a statutory remedy provided under Section 6 of the Specific Relief Act, 1963 [Section 9 of the Specific Relief Act,1877] to enable a person unauthorisedly dispossessed, to get back possession of the land, irrespective of whether he was holding any right, title or interest over the property, provided that he should come before the court, within a period of six months. It is really something special given to a person in possession, who was unauthorisedly dispossessed, but the principle behind it cannot be applied to a regular suit based on possession or possessory title and thus the proposition laid down under these two decisions cannot be directly applied to the present case at hand. But in Nair Service Society Ltd's case (Supra), discussions were made as to what would be the legal consequences and remedies attached to a person, to exhaust the remedy under Section 9 of the Specific Relief Act, 1877 (old Act.). 10. Another decision rendered by this Court in Ishwara Bhat v.Annappa Naika [ 1997 (1) KLT 420 ] was also brought to the notice of this Court, wherein in a suit for declaration of title and permanent prohibitory injunction, the relief of declaration was rejected, but this Court granted prohibitory injunction based on possession. The legal position was very much settled by another decision of the Apex Court regarding the right of persons having settled possession of the property and entitlement to protect the property in Rame Gowda (Dead) by Lrs v. M.Varadappa Naidu (Dead) by Lrs and Another [ (2004) 1 SCC 769 ]. Mere possession is something else; holding a possession is not always amounts to interest over the property or right over the property. Mere possession is something else; holding a possession is not always amounts to interest over the property or right over the property. There was no alienable right or interest over the property to be sold in court auction at the time of execution proceedings in DROP and as such no right or interest obtained by Bukhari over the property. But the receiver was examined to show that he had given possession of the property to the plaintiff in furtherance of the Court sale in execution in the DROP for recovery of the dues from Sri.Madhavan, the unauthorised possessor of the property. If he is the possessor or he is a trespasser or came into possession unlawfully or otherwise and once it has become settled, he is entitled to be evicted by due process of law even in the absence of creation of any right or interest over the property. The said entitlement is really “a right to be evicted by due process of law”, and “not amounts to any right over the property”. His possession can be protected till he was evicted by due process of law by its lawful owner or any person claiming under any lawful owner or derived interest or right over the property. 11. Yet another argument was also advanced by the respondent that the commissioner, who submitted the plan, had admitted that he could not locate the property in reference to the description and non-production of the delivery receipt and the sale certificate in court auction in DROP were taken up in that behalf. The Commissioner, who visited the property has located some property as that of the plaintiff. But the plan prepared by the Commissioner is not really in accordance with the plaint description. 12. The claim of defendant is based on Ext.B1 document of the year 1997, executed by one Joseph. In that document, how the property was acquired not mentioned or recited. It was simply executed without specifying the nature of possessory right held by him. The document was executed only on 4.12.1997. It is at the stage of evidence, Ext.B2 and Ext. B4 documents of the year 1980 were produced, but suffer the very same defect being unregistered agreements and it will not create or convey any interest over the property. As such, the case advanced by the defendant cannot be accepted. The document was executed only on 4.12.1997. It is at the stage of evidence, Ext.B2 and Ext. B4 documents of the year 1980 were produced, but suffer the very same defect being unregistered agreements and it will not create or convey any interest over the property. As such, the case advanced by the defendant cannot be accepted. The plaintiff is in a better position than that of the defendant. The Commissioner, who visited the property has also reported a building situated in the property, an outhouse and as such, I am of the view that, whatever may be the extent of area covered by or possessed by the plaintiff, since the defendant has no adjoined property and no boundary dispute involved in the suit, his possession can be protected and hence the decree granted by the First Appellate Court, deserves no interference and the appeal deserves only a dismissal. I do so, but without cost. It is made clear that it will not in any way affect the right of the Government to initiate any proceedings against the parties.