VELLAKUTTY Vs. KARTHYAYANI
LAWS(KER)-1967-5-9
HIGH COURT OF KERALA
Decided on May 29,1967

VELLAKUTTY Appellant
VERSUS
KARTHYAYANI Respondents

JUDGEMENT

- (1.) THIS motion has arisen in an interlocutory proceeding for a temporary injunction to restrain the defendants from entering the suit properties Along with the institution of the suit, the plaintiff moved for and the Munsif ordered interim injunction on April 7, 1965 On receipt of notice thereof the 2nd defendant entered appearance and prayed for cancellation of the interim injunction as regards plaint items 1 to 5 to which alone she claimed title and possession. The Munsif allowed that prayer and limited the injunction to concern plaint Items 6 to 9 On appeal by the plaintiff the District Judge, Palghat held the lower court to have gone "wrong in vacating the interim injunction with regard to Items 1 to 5", and finding the crocs on the properties to have been raised by the 2nd defendant directed the lower court to "make suitable arrange- ments for harvesting the crops" The 2nd defendant has come up for a revision of that order.
(2.) THE facts are thus: The plaintiff is the first wife, and the 2nd defendant is the second wife of one Karuman who is no more. 1st defendant is the mother of the 2nd defendant and does not claim any interest in the suit properties The contest is between the plaintiff and the 2nd defendant only. Karumar had executed on december 1, 1949 a hypothecation in favour of the plaintiff over the plaint properties 9 in number and on December 23, 1949, a gift of plaint properties Nos. 1 to 5 with transfer of possession to the 2nd defendant Ext B- 3 order, dated July 21. 1958 shows that in a proceeding moved by the plaintiff with Karuman and the 2nd defendant on the array of parties the plaintiff set up possession of the present suit Item No 5 but it was repelled by the Court which found possession with the 2nd defendant as per the gift of December 23. 1949 Thereafter the plaintiff instituted a suit in 1962 (O S. No. 183 of 1962) to enforce the hypothecation in her favour -- The 2nd defendant was not made a party to that suit --and in execution of the decree obtained therein the plaintiff purchased in court-auction the suit properties. Ext. A-3 is a copy of the delivery report dated August 1, 1964 in that case. It shows that the delivery excluded the standing crops and buildings on the properties. On the above facts, which are not in dispute, the plaintiff claims title and possession as per the court sale and delivery had in O. S. No 183 of 1962, and the 2nd defendant claims title and possession as per the gift of 1949.
(3.) INDEED, Karuman was party to the court-sale and delivery proceedings had in o. S No. 183 of 1962 and had subscribed in Ext A-3 acknowledging to have surrendered possession of the properties but, he had Rifted plaint Items Nos. 1 to 5 to the 2nd defendant as early as December 23, 1949; and in Ext. B-3 order of 1958 to which he end the plaintiff and the 2nd defendant were parties' the Court has declared the gift to have come to operation in possession. It is surprising that in spite of that declaration the plaintiff did not make 2nd defendant a party to her suit instituted in 1962 to enforce the hypothecation on the gifted properties. The equity of redemption was vested in the 2nd defendant. She alone could represent it in the suit. It, is trite law that an alienee-after- mortgase would not be affected by the decree and execution proceedings in a mortgage-suit to which he was no party. In Hargu Lal Singh v. Gobind Rai (1897) ILR 19 All 541 (FB), the plaintiff obtained a simple mortgage in 1879 and the defendants purchased the property in 1886 from the mortgagor. In the suit to enforce the mortgage only the original proprietor, but not his assignees, was made a party The property was brought to sale and purchased by the mortgagee in execution of his decree. He then brought the suit to enforce possession against the assignees of the mortgagor. Though the munsif allowed it, the District Judge reversed him and dismissed the suit. On appeal, Edge C. J. , speaking for a unanimous Full Bench of five Judges said: "his simple mortgage did not entitle him to possession as against any one. His decree for sale being in a suit to which these defendant' were not parties had no effect as against them, and his purchase at the sale held under the decree conferred on him no title as against these defendants The result is that the plaintiff had no title to possession at the commencement of the suit against these defendants. " It follows that the proceeding had in O S No 183 of 1962 are incapable of affecting the title to or possession of the 2nd defendant. The Munsif held that the acknowledgment of surrender by Karuman were not binding on the 2nd defendant that actual possession did not follow the delivery proceedings and that the 2nd defendant's possession got under the gift Ext B-1, continued undisturbed by the court-sale and delivery to which she was no party. The District Judge relying on Madhava Kurup Velayudha Kurup v. State 1953 Ker lt 31: AIR 19r3 Trav-Co. 340 and State of Kerala v. Sadasivan Pillai, 1959 Ker LT 501: 1959 Ker LJ 489 held "that it is well settled law that where a Court effects delivery, the Court really puts such a person in physical possession of the property delivered and the aggrieved persons will have to seek re-delivery or to bring a fresh suit From this it follows that the Court has to find prima facie possession with the plaintiff by virtue of the delivery. So it is not necessary to consider the other documents produced by the parties to prove possession of the properties" I am afraid that in excluding consideration of the documents produced and relied on by the 2nd defendant, the District Judge has acted in the exercise of his jurisdiction illegally or at least with material irregularity and his order merits revision under Section 115 C. P. C. "the granting of an in junction being a very serious matter in that it restrains the opposite parties from the exercise of then rights, the court does not issue the injunction unless it is thoroughly satisfied that there is a prima facie case in favour of the applicant". (Abdul Qadeer v. Municipal Board, Moradabad. AIR 1955 All 414) It is also clear that a prima facie case implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction.;


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