IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 RSA.No. 353 of 2010() --------------------- AS.51/2006 of PRINCIPAL SUB COURT, THALASSERY OS.656/2004 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- PAYYAN VALAPPIL SOBHA, D/O.KUNHIRAMAN NAIR, AGED 53 YEARS,RESIDING AT RAM CHIRAKKAL AMSOM DESOM,P.O.CHIRAKKAL, KANNUR - 11, REP.BY POWER OF ATTORNEY HOLDER,POUTHYIYA VEETTIL REJENDRAN, S/O.LATE KELU NAIR, AGED 63 YEARS, RESIDING AT RAM,CHIRAKKAL P.O.,KANNUR-11. BY ADV. SRI.KISHORE B. RESPONDENT(S)/RESPONDENT/DEFENDENT: ------------------------ CHANDROTH MINEESH., S/O.NARAYANAN NAIR, AGED 32 YEARS, CHIRAKKAL AMSOM DESOM,P.O.CHIRAKKAL, KANNUR - 11. ADV. SRI.SUNIL NAIR PALAKKAT FOR R1 SRI.K.N.ABHILASH FOR R1 SMT.LEELA.R FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON 07/12/2010 DELIVERED THE FOLLOWING: ORDER IN I.A.NO.882/2010 IN R.S.A.NO.353/2010 DISMISSED. 07/12/2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.353 OF 2010 (A) ----------------------------------- Dated this the 7th day of December, 2010 J U D G M E N T Plaintiff is the appellant. Her suit for injunction, both prohibitory and mandatory, was negatived by both the courts below, and hence, this appeal. 2. Plaintiff claimed that the suit property belong to her and other co-owners and they are in joint possession of the same. She is managing the property on behalf of all the co-owners was her claim for laying the suit for discretionary reliefs of injunction, both prohibitory and mandatory against the defendant, alleging that he had trespassed upon the eastern portion of the plaint schedule property, demolished the fence and constructed a compound wall taking a portion of the plaint property, and also threatened to demolish a portion of the building situated in the plaint property. R.S.A.NO.353/2010 2 3. Plaint property is covered by the bequest made under Ext.A1 Will by one Pokkan Nair in favour of his two sons, Kunhambu Nair and Kunhiraman Nair. Plaintiff is the daughter of Kunhiraman Nair, who under the will got item No.10 property described therein. A portion of that property was gifted by Kunhiraman Nair in favour of one Prabhakaran and the remaining property is scheduled in the suit, in respect of which, the injunctions are applied for. The defendant, by way of assignment deed (Ext.B1) from the legal heirs of late Kunhambu Nair, who was given item No.6 in Ext.A1 will, setting up a claim over item No.9 in the Will, had demolished a portion of the compound wall of the plaint property as stated above and also attempted to trespass upon the rest of the property was the case of the plaintiff. Item Nos.9 and 6 in Ext.A1 Will are two different properties, and by virtue of Ext.B1 assignment deed, the defendant had not obtained right over any portion adjoining to the plaint property is the case of the plaintiff. Suit claim was resisted by the defendant contending that both item Nos.9 and 10 under Ext.A1 Will were lying contiguously, in which, company R.S.A.NO.353/2010 3 building were put up by Kunhambu Nair and Kunhiraman Nair together. After the death of Kunhambu Nair, his legal heirs had sold their rights over the property including a portion of the company building in such property in favour of the defendant. The defendant is in possession and enjoyment of the property conveyed under the assignment deed (Ext.B1) and according to him, the plaintiff has laid the suit to grab a portion of his property. 4. On the materials placed by both sides, which consisted of PW1 and Exts.A1 to A4 for the plaintiff, DW1 and Exts.B1 and B2 for the defendants and a report and plan prepared by an Advocate Commissioner, the trial court concluded that the plaintiff has not established her exclusive possession over the plaint property as identified by the Advocate commissioner, and further, her case as to trespass into a portion of the plaint property by the defendant is not substantiated by materials, and on such finding, negatived the claims raised by her for injunction, both prohibitory and mandatory. The appeal preferred by the plaintiff impeaching the correctness of the R.S.A.NO.353/2010 4 decree of dismissal of her suit was turned down by the lower appellate court confirming the finding of the trial court. Feeling aggrieved, plaintiff has preferred this appeal. 5. Notice being given before admission the respondent/defendant has entered appearance. I heard the counsel on both sides. Though the learned counsel for the appellant/plaintiff assailed the concurrent decision rendered by the courts below impeaching the correctness of the finding entered to decline the decree sought for in the suit, I find that all the challenges mooted pertain to disputed questions of facts based on the materials tendered in the case. Though the plaintiff had a case that the defendant, under Ext.B1 assignment deed from the legal heirs of Kunhambu Nair, who was one of the two legatees under Ext.A1 Will, obtained right only over item No.6 described in that Will, and as such, under the above assignment deed he could not claim any right over item No.9 property under the Will it has come out from the materials tendered in the case, more particularly, from the identification made by the advocate commissioner, that the defendant is in possession of a portion of R.S.A.NO.353/2010 5 item No.9 property as well. The commissioner has identified that the property purchased under Ext.B1 by the defendant covered item No.9 of Ext.A1 Will also. It was also noted that a portion of the plaint property having an extent of 0.61 cents is already under the possession and enjoyment of the defendant. PW1, the husband of the plaintiff when examined before the court admitted that there was an exchange between the legatees who were allotted item Nos.6 and 9, Kunhambu Nair and Kunhiraman Nair, pursuant to the bequests made in their favour under Ext.A1 Will. So much so, where Ext.B1 assignment deed taken by the defendant related to item No.9 property under Ext.A1 Will also and he has been found to be in possession of that property on the identification made by the commissioner, which remained unchallenged as noticed by the trial court, the conclusion formed that in the given facts of the case, the plaintiff is not entitled to the relief of injunction, both prohibitory and mandatory, cannot be found fault with. The trial court has also taken note that the plaintiff had no objection to the identification made by the commissioner locating the property covered by Ext.B1 title deed of the defendant as item No.9 in Ext.A1 Will. It R.S.A.NO.353/2010 6 is also noticed that the plaintiff has not objected to such identification made by the commissioner with reference to Ext.B1. A portion of the company building put up by the predecessors of the parties, falls within item No.9, and that comes under Ext.B1 assignment deed of the defendant, according to the identification of that property by the advocate commissioner. Identification so made with respect to property under Ext.B1 remained unimpeached. When that be so, the claim of the plaintiff that the company building falls entirely within the plaint property and there is an encroachment over the plaint property, demolition of fence, construction of a compound wall etc. in that property by the defendant was rightly turned down by both the courts below. There is no merit in the appeal and it does not involve any question of law leave alone any substantial question of law. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE prp //true copy//