IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 SA.No. 276 of 1997(Y) --------------------- AS.29/1992 of SUB COURT, PAYYANNUR OS.30/1989 of MUNSIFF COURT, PAYYANNUR APPELLANTS/APPELLANTS/DEFENDANTS: ------------------ 1. KUNHIPURAYIL NARAYANI, D/O.LATE KUNHATHI, RESIDING AT KUTTUR AMSOM, DESOM IN TALIPARAMBA TALUK 2. KORAN, S/O.KUNHATHI, RESIDING AT -DO- -DO- 3. KANNAN, S/O.KUNHATHI, RESIDING AT -DO- -DO- 4. KARTHIYAYANI, D/O.KUNHATHI, RESIDING AT -DO-- -DO- 5. CHATHU, S/O.KUNHATHI, RESIDING AT -DO- -DO- BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.K.P.SANTHI RESPONDENT/RESPONDENT/PLAINTIFF: ------------------- ANJANAPURA KACHERI LAKSHMI AMMA, D/O.CHIRUTHAYI, RESIDING AT KUTTUR AMSOM, DESOM, TALIPARAMBA TALUK. BY ADV. SRI.CIBI THOMAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.276 OF 1997 ------------------------------- DATED THIS THE 16TH DAY OF AUGUST, 2010 JUDGMENT Defendants in O.S.No.30/89 on the file of the Munsiff's Court, Payyannur are the appellants. The appeal is directed against the judgment and decree in A.S.No.29/97 on the file of the Sub Court, Payyannur. The suit was filed for permanent prohibitory injunction. The trial court decreed the suit granting injunction restraining the defendants or their men from trespassing into the plaint A and B schedule properties or in any way obstructing the plaintiff's peaceful possession and enjoyment over the property. The Appellate Court confirmed the judgment and decree and dismissed the appeal. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaintiff claimed title and possession over plaint A and B schedule properties. The Defendants denied the -2- S.A.No.276/97 title of the plaintiff and contended that they have got right, title ad interest over 73 cents of property in Sy.No.119/1A 1C. The plaintiff claimed title as per Ext.A9 assignment deed and Ext.A10 certificate of purchase. Exts.A1, A19 and A20 are the prior title deeds. 3. The defendants disputed the identity of the property. The plaintiff took out a commission to identify the property. The Commissioner's report and plan were marked as Exts.C3 and C4. Exts.C1 and C2 are the sketch and mahazar prepared earlier to Exts.C3 and C4. The Commissioner in Ext.C3 plan identified and located the non-disputed plots. The trial court compared the boundaries of the property with the title deeds and the report of the Commissioner. 4. The Commissioner has marked plots F, B, C, G as the property in dispute between the parties. The plaint schedule property was marked as A, F, B, C, G, D, E. The trial court, after comparison of the title deeds, commission report, plan and the documents produced by either side, on facts held -3- S.A.No.276/97 that the plaint B schedule property, which is the disputed property, forms part of plaint A schedule property and that the plaint A and B schedule properties are identifiable. The court also examined and discussed the documents produced by the defendants and considered their contentions. The defendants produced Exts.B1 to B5 documents and Exts.B6 to B9 tax receipts in support of their case that 73 cents of property in R.S.No.119/1A 1C is in their possession and enjoyment. The court below compared the documents of the plaintiff and defendants and concluded that the plaint A and B schedule properties are in the possession and enjoyment of the plaintiff. The trial court as well as the Appellate Court did not rely on the oral evidence of the defendants and their witnesses. The courts below held that the evidence on record probabilise the contention of the plaintiff that he is in possession of the property. 5. The suit was filed for permanent prohibitory injunction. The question gone into and decided is as to whether the plaintiff is in possession of the plaint schedule property and -4- S.A.No.276/97 whether she is entitled to get prohibitory injunction. The question of title was not decided. It is not necessary to decide the question of title in a suit for permanent prohibitory injunction. Therefore, it is made clear that the discussion on the question of title is only for the purpose of deciding as to which party is in possession of the property. There was no sue regarding title and the question of title is left open to be decided in appropriate proceedings. Since the facts finding court decided the case on merits solely based on the oral and documentary evidence, I find that no valid grounds are made out by the appellants for interference in the second appeal. No question of law much less any substantial questions of law arise for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.