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2025 DIGILAW 1354 (KER)

Yesodha D/o Late Ponnu v. State of Kerala

2025-05-22

EASWARAN S.

body2025
JUDGMENT : EASWARAN S., J. The appeal is preferred by the plaintiffs aggrieved by the dismissal of OS No.306/2012 on the files of Munsiff Court, Alathur and confirmed by the First Appellate Court in AS No.81/2017 on the files of District Court, Palakkad. 2. The plaintiffs-appellants filed the suit for mandatory and permanent prohibitory injunction directing the respondents 1 to 3 to correct the entries in the registry of records. According to the plaintiffs, the property originally belonged to late Ponnu, who is the mother of plaintiffs 1 to 6 and grand mother of the 7 th plaintiff. The plaint schedule property was acquired by a registered Sale Deed No.457/1970 of Alathur SRO executed in her favour by the husband’s brother late Vasu, who was having half right over the same. Earlier, the plaintiffs filed OS NO.133/2008 for a permanent prohibitory injunction, which was withdrawn with the permission of the Court. In the aforesaid suit, a survey commission was taken out and the Advocate Commissioner filed a report stating that the ownership of the plaint schedule property has been recorded in the name of late Arumughan, father of the 4 th defendant. On an application filed on 22.09.2012 before the 2 nd defendant to rectify the mistake in the revenue records, no steps were taken. While so, a resurvey was conducted and a mistake crept into revenue records, whereby the ownership of the plaint schedule property has been wrongly recorded in the name of late Arumughan, the father of the 4 th defendant, instead of late Ponnu. Since it was only an inadvertent mistake which has crept into the revenue records, the suit was instituted for mandatory injunction. The defendants 1 to 3 entered appearance and objected to the maintainability of the suit inasmuch as no notice under Section 80 of the Code of Civil Procedure, 1908, (CPC) was issued. The defendants 4 to 5 filed a separate written statement contending that the plaintiffs are not entitled to any reliefs as regards the property, which are in the actual possession and ownership of the defendants. In support of their contention, they relied on Exts.B1 and B2, which are the Purchase Certificate and Jenmam Assignment Deed issued in their favour. On behalf of the plaintiffs, Ext.A1 to A3 series were produced. On behalf of the defendants 4 and 5, Exts.B1 to B13 documents were produced. In support of their contention, they relied on Exts.B1 and B2, which are the Purchase Certificate and Jenmam Assignment Deed issued in their favour. On behalf of the plaintiffs, Ext.A1 to A3 series were produced. On behalf of the defendants 4 and 5, Exts.B1 to B13 documents were produced. The report of the Advocate Commissioner and survey plan was produced and marked as Ext.C1 and C1(a). PW1 was examined on behalf of the plaintiff and DW1 on behalf of the defendants. The Trial Court on consideration of the material documents and pleadings framed the following issues: 1. Whether the suit is maintainable? 2. Whether plaintiff has got any right over plaint schedule property? 3. Whether the plaintiff is entitled to get mandatory injunctions as prayed? 4. Whether the plaintiff is entitled to get permanent prohibitory injunction as prayed? 5. Reliefs and costs ? 3. On appreciation of evidence, the Trial Court found that the suit preferred by the plaintiffs is not for a declaration of title and that the denial by the defendant to the plaintiffs title raised a cloud on the title of the plaintiffs and no steps have been taken by the plaintiffs to prove the title of the property and therefore, the mandatory injunction cannot be granted. 4. On appeal before the First Appellate Court, the First Appellate Court found that no notice under Section 80 of the CPC was issued and that the said defect being material in nature would entail the dismissal of the suit. The First Appellate Court also concurred with the findings of the Trial Court that the plaintiffs have not sought for a declaration of title. As regards the extent of property, the First Appellate Court noticed that as per Ext.C1 and C1(a), the extent of property held by the plaintiffs is only 10.29 cents of land whereas in the plaint schedule property, the extent shown is 16.5 cents. Therefore, the First Appellate Court concluded that the Trial Court was justified in dismissing the suit. 5. Aggrieved by the dismissal of the suit as confirmed by the First Appellate Court, the plaintiffs are before this Court in the present appeal. 6. Heard, Sri.Rajesh Sivaramankutty – learned counsel for the appellants. 7. Therefore, the First Appellate Court concluded that the Trial Court was justified in dismissing the suit. 5. Aggrieved by the dismissal of the suit as confirmed by the First Appellate Court, the plaintiffs are before this Court in the present appeal. 6. Heard, Sri.Rajesh Sivaramankutty – learned counsel for the appellants. 7. The learned counsel for the appellants submitted that the Trial Court ought to have granted the decree as prayed for, since the prayer was only to correct the entries in the registry of records. The finding of the First Appellate Court that no notice was issued to defendants 1 to 3 is also incorrect inasmuch as there was an application preferred for dispensing the notice under Section 80 and which was allowed. According to the learned counsel, the defendants have not denied the title of the plaintiffs specifically in the written statement and therefore the question of seeking declaration of title does not arise in the light of the nature of the relief sought for in the suit. 8. I have heard the submissions raised on behalf of the appellants. 9. It is indisputable that defendants in the written statement have denied the title of the plaintiffs by producing Exts.B1 and B2. Once the defendants 4 and 5 have denied the title, it was incumbent upon the plaintiffs to have sought for declaration of title. The prayer for seeking mandatory injunction will have to be judged in the light of the contentions raised by the defendants as regards title of the property and also the extent of property available in the hands of the plaintiffs. When the Advocate Commissioner has reported that the extent of land in possession of the appellants is only 10.29 cents, under no stretch of imagination, the plaintiffs - appellants can claim a mandatory injunction to correct the entries in the registry of records for the entire extent of 16.5 cents. Since the appellants has not sought for any relief or declaration of title, this Court does not find any perversity and infirmity in the judgment of the Trial Court as confirmed by the First Appellate Court. Hence no substantial question of law arises for consideration in the present appeal. Accordingly, the appeal is dismissed.