E.N CHANDRAN Vs. VALSAN MATATHIL

JUDGEMENT

(1.) Concurrent findings by the courts below in a suit for declaration and consequential permanent prohibitory injunction reliefs are challenged in this second appeal. Both the courts below found in favour of the plaintiff's case and decreed the suit. The defendant is in appeal. For the sake of convenience and clarity, the parties are hereinafter referred to as the plaintiff and defendant.

(2.) Relevant facts, in nutshell, are as follows: Plaint schedule property, inclusive of an aided school, by name Poomangalam U.P.School, originally belonged to M.P.Kunhikannan. On his death the property devolved on his wife Lakshmi and children, Indira, Madhusoodanan, Saraswathi and others. Deceased Kunhikannan's children released their entire rights over the property and school to their mother Lakshmi on 09.06.1981. Lakshmi thereby became the absolute owner in possession of the plaint schedule property. Lakshmi thereafter gifted the plaint schedule property to her daughter Indira as per a registered gift deed dated 03. 11.1999 (Ext.A3). Having accepted the gift, the property devolved on Indira. Later, Indira's brother Madhusoodanan caused Lakshmi to execute a registered sale deed on 15.11.2002 in his favour in respect of the very same property. Ext.B1 is that document. It was also realised by Indira that Lakshmi had executed another deed on 26.10.2002 (Ext.B11), purporting to cancel Ext.A3 gift deed.

(3.) Indira, then filed O.S.No.157 of 2003 before the Munsiff's Court, Taliparamba for a permanent prohibitory injunction relief against her siblings,viz., Madhusoodanan and Saraswathi. In the suit, she had obtained an interim order of injunction. In the written statement, one of the defendants, Madhusoodanan, raised a counter claim seeking prohibitory injunction against the plaintiff. Subsequently, the suit was dismissed for default and the counter claim set up by Madhusoodanan was decreed exparte. Meanwhile, Madhusoodanan executed a registered sale deed on 02.07.2005 (Ext.B2) transferring the plaint schedule property and the school to the defendant. According to the plaint averments, Madhusoodanan had no right, title or possession over the property and therefore, the sale deed executed by him is of no legal consequence. The defendant thereafter applied for transfer of ownership and managership of the school representing himself as the Chairman, Malanad Educational and Charitable Trust (in short, "the Trust") by submitting an application before the authorities concerned without complying with the procedure under the Kerala Education Rules,1959 (in short, "KER"). The plaintiff contended that the so-called Trust is not an educational agency, permitted to establish and maintain a school. While so, Indira transferred all her rights and interests over the plaint schedule property to the plaintiff as per a sale deed dated 02.08.2005 (Ext.A4). The plaintiff would contend that after the assignment, he became the absolute owner in possession of the plaint schedule property. The plaintiff approached the authorities in the Revenue Department as well as the Kerala Education Act, 1958 and KER, claiming right over the property. Mutation effected to the name of defendant by the revenue authorities was kept in abeyance when they understood that a mutation in respect of the property had already been effected in the name of Indira on the basis of Ext.A3. The plaintiff approached the Tahsildar, Taliparamba complaining refusal by the Village Officer to accept basic tax from him. Tahsildar cancelled the possession certificate, site plan, basic tax receipt, etc. issued to the defendant and directed the parties to approach a civil court for a proper adjudication of the disputes. On 27.05.2006, Lakshmi executed a power of attorney in favour of the plaintiff appointing him as a correspondent as provided in KER to manage the day today affairs of the school. Subsequently, the Director of Public Instructions (in short, "DPI") issued an order dated 16.12.2006 according sanction to transfer management of the school in favour of the defendant as Chairman of the Trust. The plaintiff challenged the order of DPI before the Government of Kerala. Government passed an order permitting the plaintiff to continue as manager of the school. The defendant thereafter tried to trespass into the property raising false claims. Therefore the suit was filed.