IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 RSA.No. 1261 of 2009 ----------------------------------- AS.33/2008 of SUB COURT, KOYILANDY CS.50/2003 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... APPELLANT/APPELLANT/PLAINTIFF: MEKKUNNANKANDI VELLIYOTTU IBRAYI, S/O.SOOPPI HAJI, AGED 63, TRADER, RESIDING AT PALAMADATHIL, IRINGATH AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/RESPONDENT/DEFENDANT: MEKKUNNANKANDI VELLIYOTTU ABDULLA, S/O.SOOPPI HAJI, AGED 63, TRADER, RESIDING AT MURICHANDI, VILAYATTUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY SR. ADV. SRI.T.P.KELU NAMBIAR SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.1261 of 2009 --------------------------------------- JUDGMENT Plaintiff in O.S.No.50/2003 on the file of Munsiff-Magistrate Court, Payyoli is the appellant. Defendant is the respondent. The suit was instituted for permanent prohibitory injunction contending that plaint schedule property is the property belonging to the appellant and is in his possession, after alienating sixty six cents, having obtained as Item No.3 of D schedule of Exhibit A1 partition deed. Respondent filed a written statement disputing the claim of the appellant contending that entire property is in his possession, having obtained it under Exhibit B28 and admitting that under Exhibit A1 partition deed, the properties shown in E schedule therein were allotted to him. 2. Learned Munsiff, on the evidence, dismissed the suit finding that appellant is not entitled to the decree for injunction. Appellant challenged the judgment before Sub Court, Koyilandy in A.S.No.33/2008. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. Second appeal is filed challenging the RSA 1261/09 2 concurrent findings of the courts below. 3. Learned counsel appearing for the appellant and respondent, who appeared as notice before admission was ordered, were heard. 4. On hearing the learned counsel appearing for the appellant and respondent, I do not find any substantial question of law involved in the appeal. Case of the appellant is that the property claimed by him is Item No.3 of D schedule of Exhibit A1 partition deed and respondent is only having right over the properties shown under E schedule thereto and when respondent was a party to Exhibit A1 partition deed, he is not entitled to dispute the title of the appellant over the properties obtained under Exhibit A1 or to claim any right under Exhibit B28 in respect of the properties covered under Exhibit A1. It was also argued that respondent is not entitled to plead jesterti in a suit for injunction and relied on the decision of this Court in Damodaran v. Varghese (1986 KLT 319). 5. The suit is only one for injunction. The court fee paid was under Section 27(c) and not under Section 27(a) of Court Fees and Suits Valuation Act. No issue regarding title was also RSA 1261/09 3 framed. In such circumstances, it is not necessary to decide the question of title canvassed by the learned counsel appearing for the appellant. Being a suit for injunction, appellant is entitled to the decree only on establishing his possession. Even if, under Exhibit A1, he has title, unless possession is established, he cannot succeed in the suit. It is the case of the appellant that out of the properties obtained as Item No.3 of Schedule D of Exhibit A1, sixty six cents were sold and the balance is the plaint schedule property. Respondent would contend that properties covered under Exhibits B1 to B5 and B17 are the properties obtained as Item No.3 of Schedule D of Exhibit A1. Case of the appellant is that reference in Exhibits B1 to B5 and B17 about the anterior title is a mistake and the properties are different. These are all matters which could be settled in a title suit. It is submitted by the learned counsel appearing for the respondent that O.S.No.84/2008 is instituted by the appellant himself before Munsiff Court, Payyoli and it is a comprehensive suit for fixation of the boundaries of the properties obtained under Exhibit A1 partition deed and though the suit was dismissed for default, it was subsequently restored and it is pending. In such RSA 1261/09 4 circumstances, I do not find it necessary to remand the suit as sought for by the learned counsel appearing for the appellant granting liberty to amend the plaint claiming a decision on the question of title by paying court fee under Section 27(a) of Court Fees and Suits Valuation Act. As O.S.No.84/2008 is pending for fixation of the boundaries based on the right claimed by the appellant in this suit under Exhibit A1 partition deed, necessarily, the question of title of the appellant as well as the right of the respondent, raised in this suit, are to be settled in O.S.No.84/2008 untrammelled by the observations in the judgments of the courts below. In such circumstances, granting liberty to the appellant to raise all the contentions in O.S.No.84/2008, including a right to amend the plaint, if necessary, appeal is dismissed. 23rd March, 2011 (M.Sasidharan Nambiar, Judge) tkv