IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RSA.No. 107 of 2011() --------------------- AS.421/2009 of II ADDL. DISTRICT COURT, PALAKKAD OS.25/2008 of MUNSIFF COURT, ALATHUR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- M.D.ANIL KUMAR, BUSINESS, AGED 49 YEARS, S/O.MAMPULLY DAMODARAN, RESIDING AT `NISAGANDHI', 15/89/4, HARITHA NAGAR, 2ND STREET, PUZHAKKAL DESOM, POONKUNNAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): DEFENDANTS ------------------------- 1. DEVU, COOLIE, AGED 52 YEARS, D/O.ARU (LATE), POONTHANGAL VEEDU, POOSARI MEDU, THENKURISSI VILLAGE, ALATHUR TALUK. 2. RADHAMANI, AGED 50 YEARS, COOLIE, RESIDING AT DO. DO. 3. KAMALAKSHI, AGED 48 YEARS, RESIDING AT DO. DO. 4. PANKAJAM, AGED 46 YEARS, RESIDING AT DO. DO. 5. RADHAKRISHNAN, AGED 27 YEARS, S/O.KAMALAKSHY RESIDING AT DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.107 OF 2011 --------------------------------------------- Dated 17th February, 2011 JUDGMENT Plaintiff in O.S.25/2008 on the file Munsiff's Court, Alathur filed this appeal challenging the judgment of Additional District Court, Palakkad in A.S.421/2009 whereunder the decree granted by the learned Munsiff was set aside and the suit was dismissed. Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that item No.1 of plaint schedule property was acquired by the appellant under Ext.A1 assignment deed dated 16/10/2006 and item No.2 was obtained under Ext.A2 assignment deed and since then the property has been in the exclusive RSA 107/11 2 possession and enjoyment. Subsequently, he established an industrial company in the name and style of ANB Plastic Private Ltd. Respondents have no manner of right or possession over the plaint schedule property and therefore, they are to be restrained by a permanent prohibitory injunction from trespassing into plaint schedule property. It is also contended that PWD road is separating the plaint schedule property and the property of respondents. 2. Respondents resisted the suit contending that plaint schedule property is not lying within the boundary referred to in the plaint and the compound of the company referred to in the plaint is situated in a hilly area without definite boundary fencing and the allegation that PWD road separates plaint RSA 107/11 3 schedule property from the property of respondents is not correct and plaint schedule property is on the east-south of said road whereas property of the respondents is north- west of said road and appellant is not in possession of the said property and therefore, suit is to be dismissed. 3. Learned Munsiff on the evidence of PW1 and Exts.A1 to A5 granted a decree finding that plaintiff established his possession of plaint schedule property. Respondents challenged the judgment before District Court in A.S.421/2009. Learned Additional District Judge on re-appreciation of the evidence found that even as per the evidence of PW1, appellant is not the owner of the property and it belongs to the company. Learned District Judge on that basis found that RSA 107/11 4 appellant is not entitled to institute the suit or claim the decree as the property is in the possession of the company. Learned District Judge also found that in spite of the dispute regarding identity of the property, no commission was taken out and in such circumstances, decree cannot be granted. The appeal was allowed. The judgment in A.S.421/2009 is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Learned counsel pointed out that I.A.412/2011 was filed to implead the company and Managing Director of the company as additional appellants and for permission to continue the appeal and it should have been allowed or the suit is to be remanded for impleading them. Learned counsel finally RSA 107/11 5 submitted that in any case, dismissal of the suit shall not affect the right of the company to institute a suit for appropriate relief in accordance with law. 6. As fairly submitted by the learned counsel appearing for the appellant evidence of PW1 shows that it is not the plaintiff who is the owner or in possession of the plaint schedule property but ANB Plastic Private Ltd. is the owner and the suit was not instituted by the said company and instead instituted by the appellant. Appellant is not even the Managing Director of the company. But the plaint allegation is that plaint schedule property belongs exclusively to him and he is in possession of the property. The first appellate court was perfectly correct in finding that appellant is not entitled to institute the RSA 107/11 6 suit or the decree granted by the trial court as even according to PW1, the only witness examined on behalf of the appellant deposed that the property belongs to the company and admittedly appellant is not even the Managing Director of the company and the plaint allegations are proved to be incorrect. More over, even otherwise when the identity of the plaint schedule property is disputed, it is upto the plaintiff to take out a commission and established the identity of plaint schedule property. In such circumstances, I find no substantial question of law involved in the appeal. Learned counsel appearing for the appellant submitted that though company is not a party observation in the judgment against company that with the evil design, company is proceeding against the real owner is to be RSA 107/11 7 removed. When company is not a party in the suit any such observation against the company is unwarranted. Appeal is dismissed making it clear that dismissal of the suit will not affect the right of the company to seek appropriate remedy. M.SASIDHARAN NAMBIAR, JUDGE. uj. The words “not even” occurring in the 8th and 19th lines in paragraph 6 of the judgment dated 17/2/2011 in R.S.A.107/2011 are deleted and substituted with the word “only” as per order dated 23/3/2011 in I.A.645/2011. Sd/- Registrar (Judicial)