(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the Judgment and Decree dated 18.11.2015 in A.S.No.16 of 2013 on the file of the II Additional District Judge, Puducherry allowing the appeal and reversing the Judgment and Decree dated 08.03.2013 in O.S.No.30 of 2011 on the file of the Sub Court, Mahe.)

1. This Second Appeal has been preferred as against the Decree and Judgment passed by the learned II Additional District Judge, Puducherry. The appellant is the defendant. The respondent has filed the suit in O.S.No.30 of 2011 on the file of learned Subordinate Judge, Mahe for the relief of permanent injunction restraining the defendant from trespassing into the ‘A’ schedule property or doing any work in the ‘B’ schedule property or is no way obstruct the plaintiff from exercising their religious no way disturbing or the secures right in plaint schedule property. The said suit was dismissed by the trial court on 8-3-2013. Aggrieved by the said decree and judgment, the plaintiff has preferred an appeal in AS No. 16 of 2013, on the file of learned II Additional District Judge, Pondicherry, in AS No. 16 of 2013, and the same was allowed on 18-11-2015 by setting aside the judgment and decree passed by the trial court and decreed the suit. Aggrieved by the said decree and judgment, the defendant has preferred this Second Appeal.

2. For the sake of convenience and brevity, the parties are referred as plaintiff and defendant as referred before the trial court.

3. The case of the plaintiff before the trial court is that plaintiff is Karanavan of the Kakkottidathil Tharawad of erstwhile Naluthara amsom, Pallor desom, senior most male member of Tharawad, is the Karanavan. The properties of the Tharawad were in the management of Karanavan of the Tharawad. Now, as the Karanavan, plaintiff is in possession and enjoyment of the schedule property, the Tharawad had large number of properties and time to time of Karanavans were used to allot the properties for maintenance of the members of Tharawad, but such members have no special rights over such items, except that conferred by the Karanavan. The Plaint A schedule property was being looked after by Narayanan Nambiar, one among the junior member, as directed by the then Karanavan, as other members including the Karanavan were residing away. The said Narayanan Nambiar was having properties near to the ‘A’ schedule property and he was residing there.

                   3.1. The plaint ‘A’ schedule property, consists of tharawad house, the temples and other shrines and deities scattered in the property. As per the entrustment, Narayanan Nambiar was required to look after the plaint ‘A’ schedule property for the benefit of tharawad. While so, the said Narayanan Nambiar issued a notice to the then Karanavan of the tharawad claiming that the property belongs to them. In the said notice, they claimed that father of Narayanan Nambiyar was the lessee and he was looking after the performance of the poojas and thereafter, Devaki Amma and Savithri Amma were performing the same as entrusted by Narayanan Nambiar. The said averments are false. In fact, the property was entrusted to Narayanan Nambiar only to look after the property as member of tharawad. Further, no lease can be created in the plaint ‘A’ schedule property as there are temples, shrine, as well as deities scattered in the property. The said Narayanan Nambiyar did not have any independent possession over the property and there was no lease in respect of the plaint ‘A’ schedule property. None of the Karanavan had recognised Narayanan Nambiar as a lessee of the property.

                   3.2. Already a suit in O.S. No. 62 of 1995 was filed and the same is pending. In the suit, the daughters of Narayananambiar claiming lease hold rights. Thereafter, the plaintiff and others have noticed that the defendant is doing some spade work in the plaint ‘B’ schedule property, which is a part of the plaint ‘A’ schedule property. On inquiry by the members of tharawad it has came to the knowledge that the defendant filed an application before Planning Authority, Mahe for construction of residential house in the plaint ‘B’ schedule. However, defendant is making claim over plaint ‘B’ schedule property on the strength of sale deed in the year 2006 executed by Savithri Ammal, daughter of Narayanan Nambiar. The said Narayanan Nambiar had no any title over the property and only he has leasehold rights, and based on that right, the daughter of Narayanan Nambiar cannot sell the property. Therefore the plaintiff filed the suit.

4. The defendant had filed a written statement stating that the suit is not maintainable, without a praying for recovery of possession of plaint ‘B’ schedule property, a mere permanent injunction is not maintainable, and the suit is bad for non-joinder of necessary parties, as all the necessary parties were not impleaded. There is no proof that the said Karanavan of Kakkothidathil tharawad of Naluthara amsom palloor desom is still exists. The plaint schedule property, originally belonged to Kakkothidathil tharawad in the year 1945. The then Karanavan of the Tharawad, Raman Nambiar orally leased the property to Kakkothidathil Narayana Nambiar. The same was later reduced in writing and executed written registered lease deed on 29-4-1948. Through that lease was granted for a period of 12 years. Thereafter Narayanan Nambiar raised improvements in the plaint schedule property and paid land revenue, etc., to the Government. None of the members of the Tharward challenged the possession of plaint schedule by Narayanan Nambiar till the year 1973.

                   4.1. Already Narayanan Nambiar filed a suit in O.S. No. 21 of 1973 on the file of District Munsif, Mahe, as against one Govinda Nambiar. In the said suit, the possession of the Narayanan Nambiar was confirmed and no appeal was filed as against the decree and judgment. The defendant purchased an extent of two ares of land and property situated in O.S. No. 592, RS 141/16 Palloor, as per sale deed dated 27.12.2006 from one Raveendran. The said property is in direct possession and enjoyment of the defendant. After purchase of the property, the defendant obtained a building plan for construction of building from the Planning Authority and constructed compound wall and retaining wall and he is constructing residential building as per plan. Already Narayanan Nambiar gifted an total extent of 20 ares in respect of plaint ‘B’ schedule property to his daughter Savithri Amma through gift deed dated 01.9.1980, and thus the said Savithriammal was in possession and enjoyment of the property. Thereafter, the said Savithri Amma assigned her right on the plaint ‘B’ schedule property to one Joyamma John through assignment deed dated 11.8.1983. The said Joyamma John assigned the ‘B’ schedule to Mepilat Thazhe Kuniyil Rajan through sale deed dated 20.12.1989. The said Rajan also assigned the property to Cheriya muthoor babu through sale deed dated 2.1.1992. The said Babu also assigned the property to Kuttiyinta Parmbath Purushu through sale deed dated 25.10.1996. Again the said Purusu, assigned the property to Chathpth Raveendran through sale deed dated 5.5.1997. The said Raveendran assigned the property to this defendant. Therefore the defendant is entitled to the property. The defendant is a bonafide purchaser for valuable consideration. Therefore, the suit is liable to be dismissed. The plaintiffs are not in possession and enjoyment of the property and the defendant is in possession and enjoyment of the property. Therefore, the suit is liable to be dismissed.

5. Based on the above said pleadings and after hearing both sides, the trial court has framed the following issues for trial:-

                   “1. Whether Kakkottidathil Tharawad of Naluthara Amsom Palloor is still existing and whether plaintiff Kunhikrishnan Nambiar is the Karanavan of the Tharawad?

                   2. Whether the plaintiff as Karanavan had allotted ‘A’ schedule property to Narayanan Nambiar to look after the same?

                   3. Whether the Narayanan Nambiar is enjoying the plaint schedule property as tenant on the strength of lease deed dated 1948 and whether his tenancy right were conferred in O.S.No.21/1973?

                   4. Whether it is true that Narayanan gifted 20 acres in ‘B’ schedule to his daughter through document no.413/1980?

                   5. Whether the it is true that the property got transferred to Joyamma John in 1983 to Thazhe Kuniyil Rajan in 1989 to Cheriya Mothoor Babu in 1992 to Parambath Purushu in 1996 to Chathoth Raveendran in 1997 and finally to defendant?

                   6. Whether the plaintiff’s right is lost by adverse possession and limitation?

                   7. Whether the Judgment in O.S.No.62/95 is binding on the defendant?

                   8. Whether the defendant is a bonafide purchaser of ‘B’ schedule property?

                   9. Whether the plaintiff is in possession of the suit property and whether the plaintiff shall seek the relief for recovery of possession?

                   10. Whether the defendant is attempting to destroy the sankalpam structural of temples in the plaint schedule property?

                   11. Whether the plaintiff is entitled for injunction as prayed for?

                   12. To what other reliefs? The issues were recasted as follows:

                   1. Whether Kakkottidathil Tharawad of Naluthara Amsom Palloor is still existing and whether plaintiff Kunhikrishnan Nambiar is the Karanavan of the Tharawad?

                   2. Whether the plaintiff as Karanavan had allotted ‘A’ Schedule property to Narayanan Nambiar to look after the same?

                   3. Whether Narayanan Nambiar is enjoying the plaint schedule property as tenant on the strength of lease deed dated 1948 and whether his tenancy right were conferred in O.S.No.21/1973?

                   4. Whether the defendant is a bonafide purchaser of ‘B’ schedule property?

                   5. Whether the plaintiff is entitled for injunction as prayed for?

                   6. To what other relief?

Before the trial court, on the side of the plaintiff, witnesses, PW1 was examined and Exhibits A1 to A17 were marked. On the side of the defendant, witness, D.W.1 was examined and Exhibits B1 to B11 were marked. The Court documents, viz., Commissioner reports and photos, viz., Ex.C1 and C2 were marked. The trial court, after considering the evidences adduced on both sides, dismissed the suit on 8.3.2013.

6. Aggrieved with the said decree and judgment, the plaintiff has preferred the A.S. No. 16 of 2013 on the file of the learned II Additional District Judge, Puducherry on various grounds. The First Appellate court has framed the following point for determination:

                   “Whether the appeal has to be allowed or not?”

The First Appellate Court, after considering the evidences on both sides, set aside the decree passed by the trial court and allowed the appeal and decreed the suit.

7. As against the said decree and judgment of the First Appellate Court, the defendant has preferred the present Second Appeal. This Court, at the time of admitting the Second Appeal on 28.03.2016, has formulated the following Substantial Questions of Law:

                   “a. Whether the lower Appellate Court is right in holding that the respondent / plaintiff has possession and title to the suit property in the absence of any proper documentary or oral evidence in respect of title or possession?

                   b. Whether the lower Appellate Court is right in decreeing the suit without the relief of declaration and recovery of possession especially even as per admission of the plaintiff that their prior Karanavan had filed the suit for recovery in respect of very same schedule A property under O.S.No.62 of 1995?”

8. The learned counsel appearing for the appellant would submit that the appellant is the defendant, the plaintiff has filed the suit for permanent injunction and the plaintiff has not proved his case, and the plaintiff himself admitted that the defendant is in possession and enjoyment of the property. In fact, the suit property was leased out to one Narayanan Nambiar and thereafter the said Narayanan Nambiar gifted the property to his daughter, Savithriamma through gift deed dated 1-9-1980. Thereafter, the said Savithriamma assigned her right to Joyama john. Thereafter, several sale deeds have been executed, and lastly this defendant purchased the property from Chathoth Raveendran through sale deed dated 27.12.2006.The plaintiff has no right over the property and the plaintiff has not filed any suit for declaration and recovery of possession and only filed the suit for permanent injunction and no documents have been filed by the plaintiff to prove that plaintiff is in possession and enjoyment of the property. Already the said Narayanan nambiar filed the suit in O.S. No. 21 of 1993 for permanent injunction as against the Govinda Nambiar and the said suit was decreed in favour of Narayana Nambiar by holding that the Narayana Nambiar is the lawful tenant and thereby the property never enjoyed by the plaintiff. The trial court, after considering the evidences in a proper perspective manner, correctly dismissed the suit. But the first appellate court, without considering the evidences in a proper perspective manner, erroneously held that the defendant admitted that the property belongs to Tharawad and once admitted the right of the property, the lessee has no right to sell the property, and without considering that no declaratory relief sought for by the plaintiff and no prayer for recovery of possession, without proving the possession by the plaintiff, decreed the suit. Therefore, the first appellate court, without appreciating facts and the oral and documentary evidences in respect of possession, granted decree. Therefore, the decree and the judgment passed by the first appellate court are perverse and liable to be set aside.

9. The learned counsel appearing for the 3rd respondent would submit that the respondent is the plaintiff who filed the suit for permanent injunction. Originally, the suit property belonged to Kakkottidathil Tharawad and the plaintiff is the Karanavan of the Kakkottidathil of erstwhile Naluthara amsom, Palloor desom. The suit property belongs to Kakkottidathil Tharawad and the said properties were in the management of the Karanavan of the Tharawad. The plaint ‘A’ schedule properties consists of Tharawad house, temple, shrines, and deities scattered in the property. The said Narayanan Nambiar was authorized to manage the properties of the Tharawad and he has no any right over the properties to alienate. Already one Anandan nambiar filed a suit O.S. No. 62 of 1995 and the same is pending. While so, the defendant was doing some spade work in the plaint ‘B’ schedule property, which forms part of ‘A’ schedule property. Thereafter, the plaintiff came to know that the defendant purchased property through sale deed dated 27.12.2006 and he purchased the property from Raveendran, but they traced the title through Savithri Amma, daughter of Narayanan Nambiar by way of the gift deed dated 01.09.1980. In fact, Narayan Nambiar had no right over the property to transfer title, as the property belongs to Tharwad. Therefore, the sale deed executed by third parties, including the lease holder, will not be binding upon Tharwad. Before the trial court, on the side of the plaintiff, witness, P.W.1 was examined and marked Exhibits A.1 to A.17. Without considering the evidences in a proper perspective manner and without appreciating the facts and law, the trial court erroneously dismissed the suit by holding that the defendant is not a trespasser and he is a bonafide purchaser.

                   9.1. In fact, the property of Tharwad cannot be sold by third parties without any rights. Therefore, the trial court has rendered perverse findings and erroneously dismissed the suit. Further, the First Appellate Court, after considering the evidences in a proper perspective manner, set aside the decree and judgment of the trial court by holding that the defendant has not denied the ownership of the property. The said Narayanan Nambiyar was only a lessee, and he had no any right to sell the property, thereby the sale deed executed by third parties in respect of suit properties are not binding upon the plaintiff. Therefore, the First Appellate Court has correctly decreed the suit and there is no perversity or illegality in the order passed by the First Appellate Court. There are no substantial questions of law involved in this case and the Second Appeal is liable to be dismissed.

10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3rd respondent and perused the entire documents placed on record.

11. In this case, the appellant is the defendant and the respondent, who is the plaintiff has filed the suit before the trial court for permanent injunction restraining the defendant from trespassing into the ‘A’ schedule property or doing any work in ‘B’ schedule property or is no way obstruct the plaintiff from exercising their religious or the secures right in plaint schedule property. According to the plaintiff, originally the property belonged to Kakkottidathil Tharwad of the erstwhile Naluthara Amsom, Palloor Desom and the plaintiff is Karanavan of the Kakkottidathil Tharwad and the properties belonged to Tharawad. In the ‘A’ schedule property, temples, shrines as well as deities are scattered, and the properties were entrusted to one Narayanan Nambiar and he was authorised to manage the properties. While so without any rights, the said Narayanan Nambiar transferred the properties in name of his daughter and in turn, his daughter sold the properties to the third parties. The defendant is also one of the purchasers, therefore, the defendant has no any right or title over the property and hence the plaintiff has filed the suit.

                   11.1. The defendant also admitted that the property belongs to Tharawad, however, the said Narayanan Nambiar was a leasee and he assigned the lease hold rights to his daughter through gift deed dated 01.09.1980 thereafter the properties were assigned to so many persons, lastly the defendant purchased the property from one Chathoth Raveendran. Therefore, the defendant has been in possession and enjoyment of the property and the plaintiff has filed the suit only for permanent injunction, and without seeking declaration and recovery of possession, the suit is not maintainable. With the above said pleadings, the trial court has framed proper issues and before the trial court on the side of the plaintiff, witness, PW1 was examined and Exhibits A1 to A17 were marked. On the side of the defendant, witness, D.W.1 was examined and Exhibits B1 to B11 were marked.

12. The plaintiff admitted that the said Narayanan Nambiar was lessee and the property was under his possession and enjoyment even in the year 1973. While so there is no evidence on the side of the plaintiff to show that whether the suit property is under possession and enjoyment of the plaintiff on the date of filing of the suit. There is no evidence to show that the property was under possession and enjoyment of the plaintiff on the date of presentation of the plaint, whereas the defendant's documents and evidences shows that the property was under possession and enjoyment of the said Narayanan Nambiar and thereafter the property was subjected for so many alienations and lastly defendant has been in possession and enjoyment of the ‘B’ schedule property to an extent of two ares through sale deed dated 27.12.2006. Since the suit is only filed for permanent injunction, the Court has to see the possession and enjoyment of the plaintiff, and the plaintiff has failed to prove his possession.

13. As far as title is concerned, the plaintiff has not sought for any relief for declaration. When the defendant is claiming that he has purchased the property through sale deed and thereby claiming title of the property, it is the duty of the plaintiff to seek for relief of declaration and since the property is not under the possession of the plaintiff, he ought to have sought for relief of recovery of possession from the defendant. The Plaintiff already came to know that the defendant purchased the property through sale deed dated 27.12.2006. Therefore, the plaintiff ought to have sought for relief of declaration and recovery of possession. Without seeking declaration and recovery of possession, the plaintiff has filed the suit for permanent injunction, that too without filing any documents to show the possession of the property. In this context, the trial court has correctly appreciated the facts and law and dismissed the suit as the plaintiff has not filed any suit for declaration and recovery of possession and the plaintiff without possession of the property, filed the suit for permanent injunction. Further, the First Appellate Court, without considering the evidences on the defendant’s side, merely taking note of the admission of defendant that originally the suit property belongs to Tharawad decreed the suit. Further, without documents to show the possession of the plaintiff and without seeking declaration relief and recovery of possession, the suit for bare injunction is not maintainable. The First Appellate Court failed to consider that the plaintiff has not filed any documents to show his possession through proper documents or any evidence in respect of the properties, and failed to consider that without seeking relief of declaration and recovery of possession filed the suit for permanent injunction. Though the defendant has not purchased the properties from the original owner and his predecessor Narayana nambiar had no title over the property, this Court need not go into the aspect of title as the suit has been filed only for permanent injunction.

14. It is an admitted fact that already a suit O.S. No. 62 of 1995 was filed by the then Karanavan, Narayanan Nambiar and the senior most anandaravan, Anandan Nambiar for recovery of possession and the same is pending. The present suit for bare injunction without seeking declaration and recovery of possession is not maintainable and there is no records to show that the plaintiff is the karanavan of Kakkottidathil Tharwad. Therefore, the judgment and decree passed by the First Appellate Court are based on no evidence and irrelevant materials. Therefore, the First Appellate Court is not right in holding that the respondent/plaintiff has possession and title in the suit property in the absence of proper documentary or oral evidence in respect of title, possession. Also the First Appellate Court is not right in decreeing the suit without relevant relief of declaration, and recovery of possession, especially even as per the admission of the plaintiff, that the then Karanavan Narayanan Nambiar and the senior most anandaravan, Anandan Nambiar had filed the suit for recovery of possession in respect of the very same ‘A’ schedule property under O.S. No. 62 of 1995. The First Appellate Court has not framed proper points for declaration and without framing proper points for declaration and without appreciating the evidences in a proper and perspective manner rendered perverse findings. Therefore, the judgment and decree passed by the First Appellate Court in the Appeal are liable to be set aside. The substantial questions of law are answered in favor of the appellant and as against the respondents.

15. In view of the above discussions and the answers to the substantial questions of law, the present Second Appeal is allowed and the decree and judgment passed in A.S.No.16 of 2013 dated 18.11.2015 on the file of the learned II Additional District Judge, Puducherry are set aside and the decree and judgment passed by the learned Subordinate Judge, Mahe in O.S.No.30 of 2011 dated 08.03.2013 are restored. Consequently, connected miscellaneous petition is closed. No costs.