Thomas VY Case

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Page 1 Thursday, June 15, 2023

Printed For: 2150112 DEON DYLAN FERNANDES, School of Law Christ University
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2020 SCC OnLine Ker 25966 : (2020) 3 KLJ 574 : (2020) 4 KLT
640 : (2021) 222 AIC (Sum 2) 4
In the High Court of Kerala

(BEFORE B. SUDHEENDRA KUMAR, J.)
Thomas V.Y. alias Sajimon

Versus
Joseph V.Y.
C.R.P. No. 868 of 2019*
Decided on March 9, 2020
Page: 576
The Order of the Court was delivered by

B. SUDHEENDRA KUMAR, J.:— The petitioner in these revision
petitions is the defendant in O.S. No. 160 of 2019 on the files of the
court below. The plaintiff filed the above suit praying for a decree of
permanent prohibitory injunction restraining the defendant and others
under him from trespassing into the plaint schedule property and
forcibly setting up residence therein and making any threat or
challenge to the plaintiff. Along with the suit, the plaintiff filed I.A. No.
868 of 2019 praying for an interim prohibitory injunction inter alia
restraining the defendant from trespassing into the plaint schedule
property and interfering with the peaceful enjoyment of the property by
the plaintiff. After the appearance of the defendant, the defendant filed
I.A. No. 1501 of 2019 praying for an order of interim prohibitory
injunction, restraining the plaintiff ‘and his men from interfering with
the peaceful living of the defendant and his family in the plaint
schedule property and from evicting the defendant from the plaint
schedule property forcibly without recourse to due process of law.
2. The learned Munsiff as per common order dated 10.04.2019.,
dismissed I.A. No. 866 of 2019 and partially allowed I.A. No. 1501 of
2019, against which the plaintiff filed appeals. As per common
judgment dated 18.11.2019. in CMA Nos. 3/2019 and 4/2019, the
Appellate Court allowed the appeals setting aside the order passed by
the Munsiffs court. Aggrieved by the said common judgment, these
revision petitions have been filed by the defendant.
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Page: 577
3. Heard both sides.

4. It is not disputed that the plaintiff is the younger brother of the
defendant. The plaintiff is a priest, working in Italy. He used to come to
India regularly. While so, the plaintiff and the defendant together
purchased the plaint schedule property in the year 2008 as per Ext. Al
sale deed. Thereafter, as per Ext. A2 release deed, the defendant
released his right over the above said property in favour of the plaintiff
for a total consideration of Rupees Eight lakh.
5. The contention of the plaintiff is that after the execution of Ext. A2
release deed on 12.09.2014. also, one of the keys of the house was
entrusted with the defendant, as a care taker of the said building, being
the brother of the plaintiff. Thereafter, on 23.01.2019., the plaintiff was
informed from the diocese that a complaint was filed against the
plaintiff by the defendant claiming right over the plaint schedule
property. It is contended by the plaintiff that even though the
defendant had tried to trespass into the plaint schedule property in
January, 2019, the attempt of the defendant could not be succeeded
due to the timely intervention by the plaintiff and others.
6. It is not disputed that at the time of purchasing, there was no
building in the property. The plaint schedule property, having an extent
of 3. 80 ares was purchased in the name of the plaintiff and the
defendant for a total consideration of Rupees Four Lakh. The plaintiff
would contend that the said amount was paid by the plaintiff and it was
only for the purpose of doing necessary things in the property in the
absence of the plaintiff that the property was purchased in the joint
name of the plaintiff and the defendant. Thereafter, the building was
constructed by the plaintiff in the said property. The defendant was
entrusted with one of the keys of the building, as a care taker, to do
necessary things in the absence of the plaintiff.
7. The defendant, on the other hand, would contend that the
defendant has been residing in the building in the plaint schedule
property ever since its construction in the year 2013 and hence the
defendant cannot be evicted from the said building without the
authority of law. It has been further contended by the defendant that
Ext. A2 document was a sham document, as the said document was
executed only for the purpose of availing loan from the bank and that
the parties never intended to act upon the said document. Since it was
contended by the defendant that the defendant did not receive any
amount as stated in Ext. A2, the learned Counsel for the plaintiff
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produced the passbook of the bank of the plaintiff showing the payment
made by the plaintiff to the defendant, for the perusal of this Court.
Thereafter, the learned
Page: 578
Counsel for the defendant consulted with his client and submitted that
the defendant received the amount.
8. Since the question to be considered is the question of granting

interim order of injunction, the paramount consideration must be the
possession of the parties over the plaint schedule property.
9. As per Ext. Al, the plaintiff and the defendant were the joint
owners of the plaint schedule property, having an extent of 3. 80 ares,
excluding the building therein. Thereafter, the building was constructed
in the said property. The construction was over in the year 2013. It is
borne out from Ext. Al that the plaintiff became the absolute owner in
possession of the plaint schedule property having an extent of 3. 80
ares and the building therein after the execution of the release deed by
the defendant. The plaintiff also produced Ext. A3 Memo issued from
the Municipality, Ext. A4 tax receipt and Ext. A5 receipt issued from the
Municipality, showing that the plaintiff is in possession of the plaint
schedule property.
10. In order to prove the possession of the plaint schedule property,
the defendant produced Exts. Bl to B3 bills issued from the Kerala
Water Authority, Ext. B4 receipts issued from KSEB and Ext. B5
receipts issued from the cable TV. It is admitted by the plaintiff that
the defendant and other members of his family used to come and stay
in the plaint schedule property till 23.01.2019. along with the plaintiff,
whenever, the plaintiff was in India. The plaintiff used to reside in the
building whenever he came to Alappuzha, is the contention of the
plaintiff. Thus the plaintiff came to the plaint schedule building on
23.01.2019. for a short stay on his arrival from Italy. At that time, the
plaintiff was summoned by the Bishop of Alappuzha to enquire about a
complaint made by the defendant against the plaintiff. The complaint
was to the effect that the plaintiff prevented the defendant from
residing in the plaint schedule building. On enquiry, the defendant
stated that he would continue to reside in the building. The defendant
and his wife prevented others from entering into the house proclaiming
their intention to’ keep the house in their exclusive possession.
However, due to the timely intervention by the plaintiff and others, his
attempt could not be succeeded. At present, the plaintiff is in exclusive
possession of the plaint schedule building, contended by the plaintiff.
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11. The first question to be considered is as to whether the

defendant is having possession over the building in the plaint schedule
property or not. Exts. Bl to B5, would not, in any way, show that the
defendant was in possession of the plaint schedule building at any time
after January, 2019. This Court asked the learned Counsel for the
defendant as to whether the defendant was having any electricity bill or
water bill
Page: 579
pertaining to the year 2019, the learned Counsel answered in negative.

The defendant also did not produce any document like Aadhar Card,
Voters ID card etc to show the prima facie possession of the defendant
over the plaint schedule building.
12. The learned Counsel for the defendant has argued that since
there is a finding in the report submitted by the Advocate
Commissioner that the defendant is residing in the plaint schedule
building with his family, this Court has to hold that the defendant is in
possession of the plaint schedule building. It is true that the
Commissioner had reported that the defendant was in possession of the
plaint schedule building at the time of his visit to the property. The
Commissioner also noted computer code, revolving chair and dresses in
the upstair portion of the building. The plaintiff's dresses, compute
code, revolving chair etc were also found in the building by the
Commissioner. Now the question to be considered is as to whether the
report of the Commissioner that one party is in possession of the
property can be accepted by the Court.
13. Rule 9 of Order 26 CPC provides for local investigation by the
Commission, which is extracted hereunder:—
“Commissions to make local investigations - In any suit in which
the Court deems a local investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, or of ascertaining the
market-value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to
such person as it thinks fit directing him to make such investigation
and to report thereon to the Court”.
14. The opening line of Order 26 Rule 9 of CPC would show that it is
the Court, which deems fit for the purpose of elucidating any matter in
dispute, may issue a Commission directing the Commission to make
local investigation. It is clear from Order 26 Rule 9 CPC that the
Commission can be appointed when the Court thinks it necessary for
conducting any local investigation. The very wording is local
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investigation and the purpose of local investigation is to elucidate any

matter in dispute, which itself indicates permissibly of collection of
evidence, in respect of matters which cannot be effectively proved, like
measurement, demarcation, identity of the property, the physical
features etc., by oral evidence.
15. In a suit for permanent prohibitory injunction, the burden is
entirely on the plaintiff to bring convincing evidence to show his
possession over the plaint schedule property and for so doing, it is not
permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is
Page: 580
intended for a different purpose. In a matter relating to the

investigation into the disputed question of fact of possession, the power
of appointment of Commissioner for local investigation cannot be
exercised by the Court to assist the party to collect evidence, where the
party can collect evidence by itself. If a party claims that, that party is
in possession of the disputed property and if the other party denies the
same by filing the written statement, the disputed fact can be
adjudicated by the Court after framing of issues and recording the
evidence of the parties. So many articles may be found in the building
at the time of local inspection by the Commissioner. Even clothes and
other articles may be found in the building. The Commissioner has to
just make an inventory of the items found in the building. The
Commissioner cannot report about the ownership of the articles found
in the premises, as the said aspect is a matter for evidence. If at all the
Commissioner makes any such report, the Court shall not accept the
report, even for primary satisfaction without any other convincing
material. If the Advocate Commission is deputed for the purpose of
ascertaining the possession of the party over the property, the said
aspect can be done only after gathering information from the people in
the locality, which amount to fishing out the evidence or gathering of
evidence and hence the same is only hearsay information. The party
can even otherwise examine the persons, with whom the Commissioner
makes enquiry, before the Court to prove the possession of the person
over the property in question. The fishing out of information is to make
a local enquiry collecting hearsay materials from the persons gathered
there or the like, which is different from’collection of materials which he
finds at the scene. That apart, if that task is left to be decided by the
Advocate Commissioner, any fraudulent litigant can create evidence
and with the assistance of the Commissioner, he will be able to prove
that he is in possession of the property, which is hot the purpose for
which Order 26 was enacted. Therefore, it is always advisable not to
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appoint an Advocate Commissioner, as in the present case, to find out

the possession of the property, which has to be decided only from oral
and documentary evidence to be adduced by the parties. The High
Court of Madras in Mr. D. Kuttiyappan v. Meemkshiammal Polytechnic
Unit, (2005) 4 Mad LJ 592 : 2005 ICO 1116 held that the Advocate
Commissioner cannot be appointed to note down the factum of
possession or the enjoyment. I respectfully agree with the view of the
High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law.
that the power of appointment of Commissioner for local investigation
cannot be exercised by the Court to enable any party to collect
evidence through the Commissioner to prove the factum of possession
or enjoyment. This being the situation, the argument of the learned
Counsel for the defendant that the report of the Commissioner would
show the
Page: 581
possession of the defendant in the plaint schedule property cannot be

accepted even for the prima facie satisfaction of the Court.
16. The Three - Judge Bench of the Apex Court in Rame Gowda
(Dead) By LRS. v. M. Varadappa Naidu (Dead) By LRS., (2004) 1 SCC
769 : 2003 ICO 160 held in para 8 thus:—
“It is thus clear that so far as the Indian law is concerned, the
person in peaceful possession is entitled to retain his possession and
in order to protect such possession he may even use reasonable
force to keep out a trespasser. A rightful owner who has been
wrongfully dispossessed of land may retake possession if he can do
so peacefully and without the use of unreasonable force. If the
trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law;
he cannot take the law in his own hands, and evict the trespasser or
interfere with his possession. The law will come to the aid of a
person in peaceful and settled possession by injecting even a rightful
owner from using force or taking law in his own hands, and also by
restoring him in possession even from the rightful owner (of course
subject to the law of limitation), if the latter has dispossessed the
prior possessor by use of force. In the absence of proof of better
title, possession or prior peaceful settled possession is itself evidence
of title. Law presumes the possession to go with the title unless
rebutted. The owner of any property may prevent even by using
reasonable force a trespasser from an attempted trespass, when it is
in the process of being committed, or is of a flimsy character, or
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recurring, intermittent, stray or casual in nature, or has just been

committed, while the rightful owner did not have enough time to
have recourse to law. In the last of the cases, the possession of the
trespasser, just entered into would not be called as one acquiesced
to by the true owner”.
17. Truth is the foundation of justice. It must be the endeavour of all
the judicial officers and judges to ascertain truth in every matter and
no stone should be left unturned in achieving this object. The Court
must give greater emphasis on the veracity of pleadings and
documents in order to ascertain the truth rather than merely relying on
the report of the Commissioner.
18. The possession is important when there is no title document or
other relevant record before the court. However, once the document of
title comes before the court, it is the title which has to be looked at first
and due weightage be given to it. The possession cannot be considered
in vaccum.
Page: 582
19. There is a presumption that possession of a person, other than

the real owner, if at all it is to be called possession, is permissive on
behalf of the titleholder. Further, the possession of the past is one thing
and the right to remain or continue in future is another thing, if is the
latter which is usually more in controversy than the former, and it is the
latter which has been much abused and misused before the Court. ‘
20. The person averring a right to continue in possession shall, as far
as possible, give a specific pleading along with the documents to
support his claim and details of subsequent conduct which establish his
possession.
21. The Three - Judge Bench of the Apex Court in Maria Margarida
Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370 :
2012 ICO 295 held in paragraph 70 thus:—
“It would be imperative that one who claims possession must give
all such details as enumerated hereunder. They are only illustrative
and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;,
(e) the date of entry into possession;
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(f) how he came into possessionwhether he purchased the

property or inherited or got the same in gift or by any other
method;
(g) in case he purchased the property, what is the consideration;
if he has taken it on rent, how much is the rent, licence fee or
lease amount;
(h) if taken on rent, licence fee or lease-then insist on rent deed,
licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise
living with him, in what capacity; as family members, friends
or servants, etc.;
(j) subsequent conduct i. e any event which might have
extinguished his entitlement to possession or caused shift
therein; and
(k) basis of his claim that not to deliver possession, but continue
in possession.”
Page: 583
22. While dealing with the civil suit, at the threshold, the court must
carefully and critically examine the pleadings and documents. All those
documents would be relevant which come into existence after the
transfer of title or possession claimed. The Court will examine the
pleadings for specificity as also the supporting materials for sufficiency
and then pass appropriate orders.
23. The Apex Court, further held in Maria Margarida Sequeira
Fernandes (supra) thus:—
“In pleadings, whenever a person claims right to continue in
possession of another property, it becomes necessary for him to
plead with specificity about who was the owner, on what date did he
enter into possession, in what capacity and in what manner did he
conduct his relationship with the owner over the year till the date of
suit. He must also give details on what basis he is claiming a right to
continue in possession. Until the pleadings raise a sufficient case,
they will not constitute sufficient claim of defence”.
24. It is a settled principle of law that no one can take the law in his
own hand. Even a trespasser in settled possession cannot be
dispossessed without recourse to law. The Apex Court in Maria
Margarida Sequeira Fernandes (supra) observed in paragraph 79 thus:
—
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“Due process of law means that nobody ought to be condemned

unheard. The due process of law means a person in settled
possession will not be dispossessed except by due process of law.
Due process means an opportunity to the defendant to file pleadings
including written statement and documents before the court of law.
It does not mean the whole trial. Due process of law is satisfied the
moment rights of the parties are adjudicated upon by a competent
court.”
25. The Apex Court in Ramrameshwari Devi v. Nirmala Devi, (2011)
8 SCC 249 : 2011 ICO 802 observed that unless wrong-doers are
denied profit from frivolous litigation, it would be difficult to prevent it.
In order to curb uncalled for and frivolous litigation, the courts have to
ensure that there is no incentive or motive for uncalled for litigation.
26. Grant or refusal of an injunction in a civil suit is the most
important stage in the civil trial. Due care, caution, diligence and
attention must be bestowed by the judicial officers and judges while
granting or refusing injunction. In most cases, the fate of the case is
decided by grant or refusal of an injunction. Experience has shown that
Page: 584
once an injunction is granted, getting it vacated would become a

nightmare for the defendant. In order to grant or refuse injunction, the
judicial officer or the judge must carefully examine the entire pleadings
and documents with utmost care and seriousness. The safe and. better
course is to give a short notice on the injunction application and pass
an appropriate order after hearing both sides. In case of grave urgency,
if it becomes imperative to grant an ex-parte ad interim injunction, it
should be granted for a specified period, such as, for’two weeks : In
those cases, the plaintiff will have no inherent interest in delaying
disposal of injunction application after obtaining an ex-parte ad interim
injunction. It appears that in a large number of cases, honest litigants
suffer and dishonest litigants get undue benefit by grant or refusal of
an injunction because the courts do not critically examine
pleadings’and documents on record.
27. In this case, it appears that the plaintiff is the owner of the
plaint schedule property as is seen from Ext. Al sale deed and Ext. A2
release deed. Exts. A3 to A5 would also indicate that the plaintiff is
having possession over the said property. Thus the plaintiff has prima
facie proved his title and possession over the property. Exts. Bl to B5
produced by the defendant are not at all sufficient to show that the
defendant was ever in possession of the plaint schedule property after
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January, 2019. This Court had already found that the report of the
Commissioner alone cannot be acted upon, to indicate the possession of
a person over the plaint schedule property. It is not discernible as to
why the defendant could not produce any document to prove his
possession over the plaint schedule building after January, 2019. Even
though the defendant contended that Ext. A2 release deed was
executed by the defendant to enable the plaintiff to obtain a loan, it is
not disputed that no loan has been so far availed by the plaintiff,
mortgaging the plaint schedule property. There is absolutely no
material before the Court to show the possession of the defendant over
the plaint schedule property after January, 2019. The document
produced by the defendant would not show that the defendant was ever
in possession of the plaint schedule property after January, 2019. The
address of the defendant in the plaint, in these revision petitions and
also in the vakalath filed before this Court and the court below would
indicate that the defendant is residing in House No. 51/271. However,
the building in the plaint schedule property is having the No. 1/271.
The above fact would also lead to the prima facie inference that the
defendant is not residing in the plaint schedule building as contended
by the defendant. From the materials on record and the pleadings
available, the contention of the plaintiff appears to be correct. It is true
that the plaintiff is working in Italy as a priest. However, he used to
come to the plaint schedule property frequently. Merely
Page: 585
because the plaintiff is working as a priest in Italy, it cannot be said

that the plaintiff is not having possession over the building. Therefore,
the observation in this regard by the Munsiffs Court cannot be correct.
28. The above discussion would lead to the prima facie inference
that the plaintiff is the owner in possession of the plaint schedule
property and the defendant had no possession over the plaint schedule
property as on the date of the suit and in the said circumstances, the
common judgment passed by the appellate court, dismissing the prayer
of the defendant and allowing the prayer of the plaintiff in part, does
not want any interference by this Court.
29. In the result, these Revision Petitions stand dismissed.
———
* Equivalent citation : 2020 ICO 745
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Thursday, June 15, 2023

In the High Court of Kerala

Thomas V.Y. alias Sajimon

The Order of the Court was delivered by

3. Heard both sides.

8. Since the question to be considered is the question of granting

11. The first question to be considered is as to whether the

pertaining to the year 2019, the learned Counsel answered in negative.

investigation and the purpose of local investigation is to elucidate any

intended for a different purpose. In a matter relating to the

appoint an Advocate Commissioner, as in the present case, to find out

possession of the defendant in the plaint schedule property cannot be

recurring, intermittent, stray or casual in nature, or has just been

19. There is a presumption that possession of a person, other than

(f) how he came into possessionwhether he purchased the

“Due process of law means that nobody ought to be condemned

once an injunction is granted, getting it vacated would become a

because the plaintiff is working as a priest in Italy, it cannot be said

this text must be verified from the original source.

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