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KAITHAPRATH MANIKKAM versus THAYYAKATHIL DEVI AND ORS

High Court of Kerala

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KAITHAPRATH MANIKKAM v. THAYYAKATHIL DEVI and Ors - SA No. 293 of 1993 [2007] RD-KL 5453 (15 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 293 of 1993()

1. KAITHAPRATH MANIKKAM
... Petitioner

Vs

1. THAYYAKATHIL DEVI & OTHERS
... Respondent

For Petitioner :SRI.PARTHASARATHY

For Respondent :SRI.K.P.DANDAPANI

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :15/03/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... S.A.No. 293 OF 1993 ............................................

DATED THIS THE 15th DAY OF MARCH, 2007



JUDGMENT

Petitioners are plaintiffs in O.S.129/87 on the file of Sub Court, Vadakara. Respondents are defendants. Suit was filed for a permanent prohibitory injunction restraining respondents from trespassing into the plaint B schedule property which is alleged to be a portion of plaint A schedule property belonging to appellants. The case of appellants was that plaint A schedule property was part of a larger extent of property originally belonging to Mandan, father of first appellant and he assigned the property in favour of first appellant and her sister Narayani and the landlord had filed O.S.446/1953 for eviction and as per Ext.C2 report submitted in that suit (marked as Ext.A2 in the present suit) plot A and A1 are the properties belonging to first plaintiff and Narayani and plot B and B1 are the properties belonging to defendants. According to appellants, rights of Narayani was assigned in favour of second appellant as per Ext.A1 assignment deed 1362/83 and they are thus in possession of the entire plaint A schedule property and respondents are claiming right over plaint B schedule property which is part of plaint A schedule property and they have no SA 293/1993 2 right over the property and therefore they are to be restrained by a decree for injunction. Respondents filed a written statement contending that the disputed property is not part of the property belonging to appellants and instead, it is part of plot B and B1 marked in Ext.A2 plan referred to in the plaint and they are in possession of the said property and therefore appellants are not entitled to the decree sought for.

2. Learned Munsiff framed the necessary issues. A Commission was appointed to demarcate the property. Commissioner submitted Ext.C1 report and C2 plan. The reports were subsequently remitted back to the Commissioner and Commissioner submitted Ext.C3 and C4 reports. The husband of second appellant was examined as PW1 and Exts.A1 to A3 and B1 to B8 and C1 to C4 were marked. On the evidence, learned Munsiff found that appellants did not establish that the disputed plaint B schedule property is part of plot A and A1 under Ext.A2 plan and appellants did not establish their possession over the said property and hence held that they are not entitled to the decree for injunction sought for. The suit was dismissed. The decree and judgment was challenged before Sub Court, Vadakara in A.S.18/92. Learned Sub Judge, on re-appreciation of evidence, confirmed SA 293/1993 3 the findings of learned Munsiff and dismissed the appeal. It is challenged in this second appeal. The second appeal was admitted formulating the following substantial questions of law. i) Have the courts below gone wrong in ignoring the title of the plaintiffs to plaint B schedule property while deciding the suit for injunction as the disputed plots are narrow strips of land in between the admitted properties of plaintiffs and defendants. ii)Has the courts below gone wrong in ignoring plaintiffs' title deed and relied on irrelevant materials while deciding the suit.

3. The learned counsel appearing for appellants and respondents were heard. The argument of the learned counsel appearing for the appellants was that there is no dispute between the parties with regard to the respective plots as demarcated in Ext.A2 plan and plots A and A1 are the plots belonging to appellants and B and B1 are the plots belonging to respondents. It was argued that the disputed portion forms part of plot A and A1 as demarcated in Ext.A2 and therefore courts below should have found that appellants are in possession of the property especially when the disputed portion are only narrow strips of land lying in between the properties of appellants and respondents. True, the parties are bound by SA 293/1993 4 Ext.A2 plan. It cannot be disputed that the property belonging to appellants is plot A and A1 and properties belonging to respondents is plot B and B1 shown in Ext.A2. But the suit is only for injunction. The question is whether appellants have established their possession over the disputed portion of the property. In Ext.C2 plan, Commissioner has shown the disputed portion of the property as red shaded portion. It is the property lying in between the admitted properties of appellants and respondents, both on the north and west. The argument of the learned counsel appearing for appellants is that as it forms part of plots A and A1, courts below should have granted the decree sought for. If the Commissioner has demarcated plot A, A1 and B and B1 correctly in Ext.C2 plan as shown in Ext.A2 plan and if the disputed portion of the property forms part of plot A and A1, arguments of the learned counsel for the appellants could have been accepted. Unfortunately, that is not the case herein. A perusal of Ext.A2 plan and Ext.C2 plan establish that the properties are not identified and demarcated as shown in Ext.A2 plan by the Commissioner in Ext.C2 plan. Therefore on the basis of Ext.C2 plan it is not possible to hold that the disputed portion forms part of plots A and A1 as demarcated by earlier Commissioner SA 293/1993 5 in Ext.A2 plan. If that be so, on the basis of Ext.C2 plan, it is not possible to grant a decree in favour of appellants. Learned Munsiff and learned Sub Judge on analysing the evidence, found that appellants did not establish that the disputed portion of the property forms part of plaint A schedule property and that they are in possession of the property. That finding of fact cannot be interfered in exercise of the powers of this court under Section 100 of the Code.

4. Learned counsel appearing for the appellants then submitted that the suit may be remanded for proper identification of the properties with reference to Ext.A2 plan. It is seen that appellants have not disputed the identity of the property as demarcated by the Commissioner in Ext.C2 plan. Though two applications were filed to remit the report back to the Commissioner and learned Munsiff remitted the reports and plan back to the Commissioner and the Commissioner submitted Ext.C3 and C4 reports, no objection was filed to the final Ext.C4 report. In the absence of a case for the appellants that opportunity was not granted by courts below for proper identification of the property, I do not think that it is in the interest of justice to remand the suit again. It is more so because the suit is only for injunction. When the evidence SA 293/1993 6 establish that appellants did not establish their possession of the disputed property, the concurrent findings of the courts below cannot be interfered. There is no merit in appeal. It is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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