IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 RSA.No. 486 of 2007 --------------------- AS.25/2003 of SUB COURT, QUILANDY OS.97/1998 of MUNSUFF.COURT, PERAMBARA .................... APPELLANT/APPLLANT/PLAINTIFF --------------------------------------------- CHUNDAYIL C.T.THOMAS, S/O THOMAS, AGED 33 YEARS, CHEMBANODA VILLAGE, P.O.CHEMBANODA, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.ZUBAIR PULIKKOOL RESPONDENTS: RESPONDENT/DEFENDANT --------------------------------- PARAYIL KOCHU BALAN, S/O MADHAVAN, AGED 40 YEARS, CHEMBANODA VILLAGE, POST CHEMBANODA, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.S.SUJA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ================================ R.S.A. NO. 486 OF 2007 ================================== Dated this the 19th day of February 2008 JUDGMENT Plaintiff in O.S.No.97/1998 on the file of Munsiff Court, Perambra is the appellant. Defendant is the respondent. Appellant instituted the suit for permanent prohibitory injunction contending that plaint schedule property belongs to him and is in in his possession under Ext.A1 gift deed executed by his father and there is a shop in the property where plaintiff is doing stationary business and respondent has no manner of right or possession to property and he is attempting to trespass the property and therefore he is to be restrained from trespassing into the property. 2. Respondent resisted the suit contending that the plaint schedule property is not identifiable and boundaries shown are incorrect and appellant has no title or possession to the property and his father had also no right in the property. It was contended that the disputed property as shown in the margin to R.S.A.NO. 486/2007 -2- the written statement belongs to his father and his father gave licence to the plaintiff's father to put up a petty shop where plaintiff's father was doing business and appellant is not entitled to the relief sought for. Subsequent to the submission of Exts.C1 to C3 report and plan, by the Commissioner, appellant got the plaint amended as per order in I.A.No.589/2002. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A4, B1 and B2 and Exts.C1 to C3, dismissed the suit holding that appellant did not establish either the identity or possession of the property. Appellant challenged that judgment before Sub Court, Koyilandi in A.S.No.25/2003. Leaned Sub Judge on reappreciation of evidence confirmed the finding of the learned Munsiff and dismissed the appeal. It is challenged in the Second Appeal. 4. Learned counsel for the appellant argued that in Ext.C2 plan the red marked plot which lies to the east of the public road is the plaintiff's property and the shop building is within that property and the property of the respondent is to its east and south and respondent has no manner of right or possession to the plaint schedule property and therefore, a decree for R.S.A.NO. 486/2007 -3- injunction should have been granted. It was argued that the property of the respondent is in R.S. No.312/4 and that of the appellant is R.S.No.312/2 and under Ext.A3 appellant was directed to pay tax in respect of the plaint schedule property and therefore a decree for injunction should have been granted. 5. On hearing the learned counsel and on going through the judgments of the courts below, I do not find any substantial questions of law involved in the appeal. 6. Suit being one for injunction simplicitor, the question is only regarding the identity and possession of the plaint schedule property. The courts below also considered only those questions. Appellant is entitled to get a decree for injunction only on establishing the identity of the property as well as possession. Appellant claimed possession of the property based on Ext.A1. As per Ext.A1, the property, which lies to east and north of the plaint schedule property, are remaining properties of appellant and to the south is the public road and to the west is Kochubaby's property. When the Commissioner inspected the property, he could not identify any such property shown in Ext.A1. Commissioner has drawn Ext.C2 plan after marking the R.S.A.NO. 486/2007 -4- property, as shown by the appellant. It is thereafter the plaint was amended . Under the amended plaint, pliant schedule property is the one which lies to the west of the public road and on all other three sides, east, south and north are Government land. This property has no connection whatsoever with the property claimed by appellant under Ext.A1. Courts below on appreciating the evidence found that appellant did not establish the identity or possession . The question of title was not agitated or considered. The question whether the appellant is in possession of the property is a finding of fact. Both the courts on appreciating the evidence found that appellant did not establish his possession. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE ks. R.S.A.NO. 486/2007 -5- The 8th defendant in O.S.No.419/1971, petitioner in I.A.No.4142/1984 in O.S.No.419/71 on the file of the Ist Additional Munsiff Court, Neyyattinkara is the appellant. A preliminary decree was passed in O.S.No.419/1971 on 8-11-197. Under the preliminary decree, 8th defendant was allotted to 51 ½ cents, though he claimed ¼ share which originally due to Mallan Raman and sold to Omana which was purchased by the appellant. The preliminary decree was challenged in A.S.No.46/75 by the plaintiffs. As per judgment dated 30-9-1977, the first appeal was allowed modifying the preliminary decree with regard to the right of the plaintiffs. It was found that the plaintiffs are entitled to redemption partition and recovery of ½ share less 3 and 3.4. cents assigned to 9th defendant from A schedule property. With regard to the shares of the defendants it was found that the shares of the defendants will be fixed by the lower court. It is pursuant to the observations, the appellant as well as some of the other defendants filed different petitions for passing a supplementary preliminary decree. The learned Munsiff as per order dated 19-8-1991 dismissed that applications holding that they will not be prejudiced by the final decree by the final R.S.A.NO. 486/2007 -6- fixation of the share of the plaintiffs. It was challenged before the Sub Court, Neyyattinkara in A.S.No.510/1994 and A.S.No.846/1994. The appellant filed A.S.No.846/1994 against the final decree and A.S.No.510/1994 against the dismissal of I.A.No.4142/1984. The learned counsel appearing for the appellant heard. The appeal is filed only against A.S.No.510/1994 and the final decree as confirmed in A.S.No.846/1994 has become final. The argument of the learned counsel was that in view of the observations by the first appellate court in A.S.No.46/75 granting liberty to the defendants to apply for fixation of the shares, the courts below should have decided the question without directing the parties to file a fresh suit. On hearing the learned counsel, I do not find any substantial questions of law involved in the appeal. In the preliminary decree which was modified by the first appellate court in A.S.No.46/75, the claim of the plaintiff was upheld and they were granted ½ share that was granted rejecting the claim of the defendants and that share was not available for the plaintiffs. The learned Munsiff and the learned R.S.A.NO. 486/2007 -7- District Judge consequent to the filing of petitions by the appellant as well as other defendants found that the question of their claim has to be decided in a separate suit. It was also submitted by the learned counsel that some of the defendants have already filed a suit. In such circumstances, the appeal is dismissed granting liberty to the appellant to agitate his claim in the suit or by a separate suit. M. SASIDHARAN NAMBIAR, JUDGE ks. R.S.A.NO. 486/2007 -8- M. SASIDHARAN NAMBIAR, J. ================================ R.S.A. NO. OF 2004 ================================== Dated this the 19th day of February 2008 ORDER This petition is filed to condone the delay of 35 days in filing the appeal. The case of the petitioners is that the first petitioner who was prosecuted in appeal was suffering from acute rheumatic complaint and therefore, the delay was caused. For the reasons stated in the petition, the delay will stand condoned on the petitioner paying or depositing a cost of Rs.750/- to the respondent within three weeks from today, failing which the petitioner will stand dismissed. M. SASIDHARAN NAMBIAR, JUDGE ks.