IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 RSA.No. 35 of 2008() -------------------- AS.60/2000 of DISTRICT COURT,KOZHIKODE OS.117/1996 of PRL.M.C.,KOZHIKODE-II .................... : APPELLANTS/RESPONDENTS/LEGAL REPRESENTATIVES OF ORIGINAL PLAINTIFF ------------------------------------------------- 1. REMANI, S/O KAKKADATH RAMACHANDRAN, AGED 50 YEARS, RESIDING AT KAKKADATH HOUSE P.O., BEYPORE, CALICUT-15. 2. RAJANI, D/O KAKKADATH RAMACHANDRAN, AGED 29 YEARS, RESIDING AT MATHURANGAD HOUSE, ST. VINCENT COLONY ROAD, P.O.ERANHIPALAM, CALICUT. 3. RANJITH, S/O KAKKADATH RAMACHANDRAN, AGED 25 YEARS, RESIDING AT KAKKADATH HOUSE, P.O.BEYPORE, CALICUT-15. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENTS: APPELLANT/DEFENDANTS 2 & 3 ------------------------------------------------------- 1. KAKKADATH BIJUNATH, S/O RAMDAS, AGED 43 YEARS, REPRESENTED BY P/A HOLDER, KAKKADATH RAMADAS, S/O SANKARAN, AGED 76 YEARS, RESIDING AT KAKKADATH HOUSE, BEYPORE AMSOM AND DESOM OF KOZHIKODE TALUK. 2. KAKKADATH RAMADAS, S/O SANKARAN, AGED 80 YEARS, RESIDING AT KAKKADATH HOUSE, BEYPORE AMSOM AND DESOM OF KOZHIKODE TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.104/2008 IN R.S.A.NO.35 OF 2008 4.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.35 OF 2008 =========================== Dated this the 4th day of February, 2008 JUDGMENT The legal representatives of plaintiff in O.S.117/1996 on the file of Munsiff Court, Kozhikode are the appellants. Second defendant and legal heir of deceased first defendant are the respondents. Deceased plaintiff instituted the suit for permanent prohibitory injunction restraining defendants from trespassing into the plaint schedule property. Plaint schedule property consists of two thaks. Thak one with a measurement of 14x43 and thak two 15x8 both 6 feet koles. Both properties are in R.S.No.58/7 of Beypore Village. According to appellants, under Ext.A1 the property originally belonged to deceased Subramanian, first respondent and deceased Imbichekkan. Plaintiff is the son of Subramaian. It is contended that on the death of Imbichekkan his legal heirs under Ext.A2 assignment deed dated R.S.A.35/2008 2 3.5.1975 released their rights in favour of plaintiff and subsequently in the partition between plaintiff and first respondent, under Ext.A3 partition deed, plaint schedule property was allotted to plaintiff and he has been in possession and enjoyment of the property and respondents have no right or possession over the same and they attempted to trespass into the property and so they are to be restrained from trespassing into the property by a permanent prohibitory injunction. Defendants in their written statement contended that identity of the plaint schedule property is not correct and it is for plaintiff to take out a Commission to identify the plaint schedule property. Respondents are contending that appellants have no right or possession to thak No.1 of the property. It was contended that the said property having a measurement of 17x25 by name Kunnummal paramba is having an extent of 35 cents in R.S.No.58/7 and it was mortgaged to first respondent and subsequently R.S.A.35/2008 3 he obtained Ext.B3 purchase certificate from the Land Tribunal as per the order in S.M.1283/1975 and under Ext.B4 he settled in favour of second defendant/first respondent and he has right and title to the property. It was contended that subsequently first defendant settled the property in favour of first respondent in 1975 and by mistake the survey number was shown as R.S.No.58/3 instead of 58/7 and while the mistake was found out on measurement, Ext.B6 correction deed was entered into in 1996. It was also contended that appellant is not in possession of the plaint schedule property and therefore he is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1 to A28 and Exts.B1 to B8 granted a decree for permanent prohibitory injunction holding that appellant established possession of the plaint schedule property. Defendants challenged the judgment before District Court, Kozhikode in A.S.60/2000. Learned District Judge on elaborate R.S.A.35/2008 4 reappreciation of the evidence found that defendants in their written statement contended that identity of the plaint schedule property is not correct. Learned District Judge also found that even when examined as PW1 appellant asserted that there is a fence on the northern side of the property which separates the southern 35 cents claimed by respondents and if a Commission is taken out, identity of the plaint schedule property could have been established. Holding that appellant is now claiming 1 acre 57 cents of the property and under Ext.A1 the extent is less than 1 acre 85 cents, learned District Judge found that the identity of the plaint schedule property is not established and without a proper identification of the property a decree for injunction cannot be granted. Learned District Judge set aside the decree granted by the trial court and dismissed the suit granting liberty to the appellant to institute a fresh suit on establishing the identity of the plaint schedule property. The legal R.S.A.35/2008 5 representatives of original plaintiff are challenging the judgment in this second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that in Ext.A3 partition deed entered into between the appellant and deceased first defendant were parties and first respondent is not entitled to dispute the identity of the plaint schedule property and therefore first appellate court was not justified in interfering with the decree. Learned counsel argued that in any case if the identity was not established, first appellate court should have remanded the suit back to the trial court granting an opportunity to identify the property and dismissal of the suit was not justifiable. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Being a suit for injunction, a decree could be granted only in respect of the ascertainable and R.S.A.35/2008 6 identifiable plot. In the written statement itself defendants contended that plaint schedule properties are not identifiable and appellant is bound to take out a Commission to identify the property. Learned District Judge on reappreciating the evidence found that the identity of the plaint schedule property was not established. It was also found that as PW1 appellant himself deposed that there is a fence demarcating the plaint schedule property from the property of respondents which lies to the south and if a Commissioner goes to the property the fence could be fixed. Learned District Judge in the facts and circumstances of the case found that in such circumstnce appellant cannot be granted a further opportunity to take out a Commission or to remand the suit for that purpose. As the factum of identification of the property, was brought to the notice of the appellant by respondents even in the written statement, and it was not availed of by appellant . It is in such circumstance, the suit was dismissed R.S.A.35/2008 7 granting liberty to the plaintiff to institute a fresh suit, so that he could identify the property. The fact that deceased first defendant was a party to Ext.A3 is not a valid or sufficient ground to hold that appellant is not to identify the plaint schedule property in order to get a decree for injunction. When the decree sought for is injunction and appellant sought to restrain respondents from trespassing into the plaint schedule property, it is for the appellant to identify the property. In such circumstance, when the property is not identified, first appellate court was justified in holding that appellant is not entitled to the decree sought for. As first appellate court has already granted opportunity to the appellants, to institute a fresh suit, I do not find any reason to interfere with the judgment. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.35/2008 8 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006