MOHAMMED KOYA Vs. BICHIKOYA
LAWS(KER)-2003-11-153
HIGH COURT OF KERALA
Decided on November 11,2003

MOHAMMED KOYA Appellant
VERSUS
Bichikoya Respondents

JUDGEMENT

- (1.) THIS second appeal is filed by the plaintiff in a suit for injunction.The suit was decreed by the Trial Court;but in appeal the decree was set aside and the suit was dismissed.
(2.) ACCORDING to the plaintiff,the plaint schedule property belonged to Kesava Menon.Kuttiassan was the lessee under Kesava Menon.After his death,in a partition,the plaint schedule property was partitioned among his legal heirs.The plaint schedule property was allotted to the defendant.The defendant orally entrusted the property to Veerankutty Mulla in 1976 and Veerankutty Mulla assigned the property to the plaintiff in 1986.He also obtained certificate of purchase from the Land Tribunal.Since the defendant and his men attempted to trespass into the plaint schedule property,the suit was filed. The defendant contended that the oral entrustment in favour of the father inlaw of the plaintiff in 1976 is untrue.The plaintiff has no possession of the property and the plaintiff did not get any right on the basis of the assignment from his father inlaw.Before the Land Tribunal,the defendant was not a party.The Trial Court did not believe the oral evidence on either side.According to the Trial Court,since the defendant did not take any step to get himself impleaded in the proceedings before the Land Tribunal and on the basis of the tax receipts produced by the plaintiff,the suit was decreed.The appellate court reversed the Judgment of the Trial Court on the ground that there was no oral assignment of the right of the 1st defendant and plaintiff did not succeed in proving possession as on the date of suit.
(3.) IN this second appeal,it is contended that the appellate court went wrong in discussing title in a suit for injunction.It is also contended that the purchase certificate was issued after getting a report from the Revenue Inspector which showed possession of the property with the plaintiff.The learned Counsel for the appellant also relied on the decision of this Court in Lakshmi v.Viswanathan(1999(2)KLT 621 ).In that decision it is held that certificate of purchase is conclusive proof of possession as well and unless the certificate is set aside by a competent authority or in a Court of law,statutory enforcement in terms of S.( 2)has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties.The certificate of purchase was obtained pending the suit.A Full Bench of this Court in Kesava Bhat v.Subraya Bhat(1979 KLT 766)has held that in a simple suit for injunction the court is concerned with the question of possession and the nature and character of the possession is immaterial.Following the Full Bench decision,a Division Bench of this Court in Eldho v.Alias(ILR 2003(3)Ker.604)has held that in a suit for injunction,possession only is relevant.Even if there is a statutory prohibition under S.4(2)of the Benami Transactions(Prohibition)Act,and no defence based on any right under benami claim or action by or on behalf of a person claiming to be the real owner of such property shall be allowed in any suit,the plaintiff will not get a decree for injunction unless he proves possession of the suit property as on the date of suit.In this case as on the date of suit no certificate of purchase was obtained by the plaintiff.Moreover,what S.72K of the Land Reforms Act states is that the certificate of purchase is conclusive proof of assignment to the tenant of the "right,title and interest of the landowner and intermediary " ;.It does not say that the certificate of purchase is conclusive proof of possession of the person to whom the certificate is issued.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.