PARAMBATH KOKKODAN CHATHU Vs. CHERIAYA KUZHIMBIL ROHINI

JUDGEMENT

(1.) Plaintiff is the appellant. Concurrent decision rendered by both the courts below dismissing his suit for injunction is challenged in the appeal. Two items of properties, described as item No.1 and 2, are scheduled in the plaint, over which the appellant/plaintiff sought for a decree of perpetual prohibitory injunction against the respondents/defendants. So far as item No.1 property, there was practically no challenge from the defendants/respondents and that was not a matter of dispute for adjudication in the suit. Item No.2 property comprising a temple was claimed by the plaintiff as belonging to his thavazhy alone and over that property the defendants who are admittedly the members of a different thavazhy under the common tharavad have no right, was the basis for the injunction applied for. Both the courts below, on the materials placed, concluded that the plaintiff failed to prove the claim set up over item No.2 property comprising the temple as exclusively belonging to the members of his thavazhy, and in that view of the matter, dismissed the suit.

(2.) Plaintiff and defendants are admittedly members of two different Thavazhies of a tharavad known as Kokkadan Tharavad. As between the members of the thavazhy of the plaintiff, there was a suit for partition and in the final decree proceedings thereof, except item No.2 property, the rest was divided among its members, and item No.2 was kept in common for the thavazhy, is the case of the plaintiff to sustain the relief of injunction against the defendants, members of another thavazhy of the tharavad. The defendants in their written statement, repudiating the claim of the plaintiff, set up a rival claim over item No.2 property contending that property comprising the temple belong to their thavazhy.

(3.) The edifice of the case set up by the plaintiff in his plaint was built upon the final decree passed in a partition suit between the members of his thavazhy whereunder the property comprising the temple was kept in common and excluded from the division effected under the decree. Ext.A9 is the final decree passed in the above suit. The defendants, members of a different thavazhy, not being parties to the suit, are not bound by the decree nor by whatever statement made under the commission report or any other material covered by that suit is not disputed. Being a suit for injunction, irrespective of the question whether possession was claimed on the basis of title, burden was cast upon the plaintiff to show his exclusive possession in presenti, at the time of institution of the suit, to sustain such equitable relief. Though no mention was made of the title of the plaintiff's thavazhy in the plaint to claim right over item No.2 property exclusively as against the defendants in the suit, it is seen, the relief of injunction applied for was attempted to be sustained by producing prior title deeds by which plaintiff's thavazhy obtained right over the property. Exts.A1 to A3 were produced to canvass a case that the property wherein the tharavad members carried out worship was alloted to the thavazhy of the plaintiff. At the point of time when a partition was effected among the members of the thavazhy, admittedly, no temple was in existence. The defendants, members of the another thavazhy, under the partition effected in the tharavad got only the southern property alloted to the thavazhy of the plaintiff was the case attempted to be projected in evidence to show that the property comprising the temple, item No. 2, formed part of the allotment made in favour of their thavazhy. The questions canvassed with reference to the rival claims of title on the basis of the prior deeds, by which a division over the properties of tharavad was effected among the members of the tharavad, needless to point out have no significance in the present suit, which was only for injunction, especially where no particulars of the prior title deeds were stated in the plaint. As already indicated, the decree of injunction was claimed on the footing that item No.2 property belong to the members of the thavazhy of the plaintiff alone, for which, in the plaint, reliance was solely placed on Ext.A6 (final decree) passed in the suit for partition between the members of that thavazhy. At the time when the advocate commissioner appointed in the final decree proceedings visited the suit property, the parties thereto agreed for having a division excluding the property comprising the temple is the sheet anchor of the case of the plaintiff to contend that the allotment effected by them, as stated in the report of the commissioner, would demonstrate that the plaintiff's thavazhy alone got right over item No.2 property. The first appellate court, examining the commissioner's report in the above case (Ext.A16) has rightly and correctly reached the conclusion that the statement made in the report at the most only indicate that the property comprising the temple was kept in common and was not alloted to the parties in Ext.A6 suit. The relevant portion in the report of the commissioner has been recorded in its judgment by the first appellate court which would show that the plaintiff in that case had canvassed a case that the property comprising the temple belong to his thavazhy but it was disputed by the defendant in that suit, who was also a member of that thavazhy. It is also seen that when the commissioner conducted such visit over the property, persons having properties on the south of the suit property were also present. Admittedly, the defendants were holding the property on the south of the suit property covered by Ext.A6 suit. Evidently, accepting the objections raised by the defendant in the previous suit, division of the whole property covered under the preliminary decree was not proceeded with. The report of the commissioner (Ext.A16) further indicate that division was effected as agreed to by the parties to the suit excluding the property comprising the temple. There is nothing in the report of the commissioner to indicate that such excluded area comprising the temple was left in common for the members of the plaintiff's thavazhy or to them alone. On the contrary, the statements in the report of the commissioner reflect that even the defendant in the suit, a member of the thavazhy of the plaintiff, asserted that the property comprising the temple was not liable to be partitioned under the terms of the preliminary decree. The excluded area from division, and allotment to the parties, comprising the temple, has an extent of 19 cents, which is item No.2 property in the present suit. On the materials produced in the case both the courts have concurrently reached the conclusion that the claim of exclusive right of the plaintiff over item No.2 property cannot be accepted. When the foundation of the case set up by the plaintiff built upon Ext.A6 final decree with reference to Ext.A16 commission report prepared in that suit, previous suit for partition between the members of the thavazhy, crumble down, the claim for injunction sought to be sustained by the plaintiff on prior title deeds with reference to the allotment made to his thavazhy, has no significance, and, in fact, not germane for consideration at all. The dismissal of the suit in the circumstances involved and on the materials produced does not suffer from any infirmity. No substantial question is involved in the appeal, and the concurrent finding entered by the courts below on the established facts by the materials tendered is unassailable. The appeal is dismissed directing both sides to suffer their costs.