IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 SA.No. 69 of 2001() ------------------- AS.171/1997 of PRL.SUB COURT, KOZHIKODE OS.456/1995 of PRL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT(S): -------------------- 1. PULIYOLI AMBUJAKSHY AMMA, RESIDING AT AMBUJAM NIVAS, THALAKKULATHOOR AMSOM DESOM, KOZHIKODE TALUK. 2. EDAVALATH USHA AMMA, “USHAS”, THALAKKULATHOOR P.O, KARUVATTUR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENT(S): --------------------- MUTHIRAKKAL KOVILAKATH AMBADEVI, D/O AMBIKA DEVI THAMPURATTI, RESIDING AT NARIKKOTT PARAMBIL HOUSE, KARUVATTUR AMSOM DESOM, KOZHIKODE. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R SMT.PRABHA R.MENON FOR R SRI.PUSHPARAJAN KODOTH FOR R SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES) FOR R SRI.K.JAYESH MOHANKUMAR FOR R THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 69 of 2001() 2 ORDER IN C.M.P NO.140/2001 DISMISSED. 17/12/2010 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A to Judge S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.69 OF 2001 -------------------------------- Dated this the 17th day of December 2010 JUDGMENT The defendants in a suit for injunction have filed this appeal. Concurrent decision rendered in favour of the respondent/plaintiff decreeing her suit as applied for granting her a decree of perpetual prohibitory injunction restraining the appellants/ defendants from interfering with her possession and enjoyment over plaint 'C' schedule property, is challenged in this appeal. 2. Plaintiff executed an agreement of sale in respect of 45 cents described as 'B' schedule in favour of the defendants. The defendants filed a suit for specific performance of that agreement and by virtue of the decree passed obtained symbolic possession of 'B' schedule property. Plaint 'C' schedule is the remaining property in 'A' schedule after excluding 'B' schedule property. Plaintiff claiming to be the sole legatee under the will executed by late Ambalikadevi Thampuratty, admittedly, the previous owner of 'B' and 'C' schedules, laid the suit for injunction alleging that the defendants are attempting to trespass upon 'C' schedule property as if it formed part of the decree scheduled property obtained by them in their suit for specific performance. Claim of S.A No.69 OF 2001 - 2 - the plaintiff was resisted by the defendants disputing her status as the sole legatee of the original acquirer and also her possession over 'C' schedule. The trial court, on the materials placed, found merit in the case of the plaintiff and decreed the suit in her favour negativing the challenges raised by the defendants. In appeal, the lower appellate court, after reappreciating the materials tendered, confirmed the decree of injunction. Feeling aggrieved, the defendants have preferred this appeal. 3. At the time of hearing, the learned counsel for the appellants submitted that both the courts below have not taken note of the serious challenges raised impeaching the entitlement of the plaintiff to obtain a decree of injunction against them in respect of that property. Plaintiff has not produced the will, not proved her legal right over the property, according tot he counsel, and so much so, both the courts below went wrong in passing a decree in her favour. On the other hand, the learned counsel for the respondent/ plaintiff contended, in the execution proceedings in the suit for specific performance over 'B' schedule property, the present plaintiff had been impleaded as the legal representative of late Ambalikadevi Thampuratty and the registeration of sale deed over such property and delivery was obtained by the defendants S.A No.69 OF 2001 - 3 - with her in the party array. The materials produced in the case, according to the counsel, clearly establish her possession and enjoyment over 'C' schedule property as the sole legal heir of late Ambalikadevi Thampuratty and as such, no interference with the decree concurrently passed by the two courts below is called for. 4. Perusing the judgments with reference to the submissions made by the counsel on both sides and taking note that the suit was only for injunction, I find that the concurrent finding entered that the plaintiff is in possession of plaint 'C' schedule property and as such, she is entitled to a decree of injunction as against the defendants, does not call for any interference. As the present suit was concerned, only with possession over the suit property no issue was raised nor considered whether the plaintiff is a sole legatee of late Ambalikadevi Thampuratty and the will, if any, executed by the testator is genuine or not. In case the defendants have any claim of title over the 'C' schedule property either as a legal heir of late Ambalikadevi Thampuratty or otherwise, it is open to them to seek for appropriate reliefs as provided by law. So far as the conclusive finding entered by the two courts below concurrently on the question of possession over 'C' schedule property and decree of injunction granted in favour of the plaintiff, a reexamination of the materials by this court is impermissible unless it is shown that that S.A No.69 OF 2001 - 4 - finding is perverse. Having regard to the totality of the facts and circumstances established in the case by the materials tendered, it is seen, the courts below have concurrently held that the plaintiff is in possession of 'C' schedule and it was not decided solely accepting her claim as a legatee under the will executed by late Ambalikadevi Thampuratty. The defendants, under the decree passed in the previous suit could claim right only over 'B' schedule property. I find, the decree granted by the court below in favour of the plaintiff in respect of 'C' schedule property recognizing her possession does not suffer from any infirmity, whatsoever. There is no merit in the appeal, and it is dismissed directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv