IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 RSA.No. 1200 of 2008() ---------------------- AGAINST THE ORDER DATED 11/04/2008 IN CROSS APPEAL.4289/04 IN AS.327/2004 of ADDL.DISTRICT COURT, KOZHIKODE OS.205/2002 of PRINCIPAL MUNSIFF COURT-I, KOZHIKODE. .......................... APPELLANT/CROSS APPELLANT/ DEFENDANT --------------------------------------------------- KAMALA, AGED 61 YEARS,W/O.KOLIPPURATH KRISHNAN, KOLIPURATH HOUSE, KOTTOOLI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS/APPELLANTS/PLAINTIFFS ---------------------------------------------- 1. THAZHATHUVEETTIL SARALA, AGED 68 YEARS, D/O IMBICHI, KOTTOOLI AMSOM DESOM, KOZHIKODE. 2. KANANGOTTU SARASU, AGED 64 YEARS, D/O.IMBICHI, KOTTOOLI AMSOM DESOM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 1200 of 2008 ========================== Dated this the 9th day of January, 2009. JUDGMENT The sole defendant in O.S. No. 205 of 2002 on the file of the court of the Principal Munsiff-I, Kozhikode is the appellant in this Second Appeal. The said suit was instituted by the respondent herein who are the youngest two daughters of one Imbichi and his wife Janu. The parties are Thiyya of Calicut. Imbichi referred to above died in the year 1944 and his wife who survived him died only in the year 1987. They had a son by name Krishnan who died in the year 2001 and five daughters by name Devaki, Chandramathi, Devi, Sarala (1st plaintiff) and Sarasu (2nd plaintiff). The two plaintiffs who are two out of the 5 daughters of the said Imbichi filed the suit on behalf of their sisters seeking a perpetual injunction in respect of the plaint schedule property. The plaintiff proceeded on the basis that the appellant/defendant was a total stranger. 2. The suit was resisted by the appellant contending inter alia that she was the widow of Krishnan and the plaint schedule R.S.A. No. 1200/2008 : 2: property was the ancestral property of the Imbichi on whose death it devolved on Krishnan, the coparcener as the parties were followers of Makkathayam system of inheritance which was the pristine Hindu Law modified by custom. 3. Even though the suit was one for injunction, the trial court framed as many as 6 issues for trial. The suit was tried along with another suit (O.S. No. 753 of 2002) filed by the very same plaintiffs with regard to the self acquired properties of Imbichi. Both the suits were jointly tried and disposed of as per common judgment dated 30.07.2004. The trial court dismissed the suit holding that the plaint schedule property was in possession of the appellant/defendant. This is how the trial court concluded:- “Therefore it is found that the defendant is in possession and enjoyment of the property and the contention of the plaintiffs that the defendant is not having any right over the property is not a probable case. If the court find that defendant is in actual physical possession of the property and residing in the house and the property, court cannot grant any injunction against the defendant. The question as to whether she is the widow of Kolippurath Krishnan is not much relevant here. The remedy of the plaintiff, if at all, is to establish the exclusive title over the property and to seek a recovery of possession. But the suit is only for injunction and no amendment is so far made in the suit.” R.S.A. No. 1200/2008 : 3: 4. It was on the above premise that the trial court dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiff filed A.S. No. 327 of 2004 before the District Court, Kozhikode. The appellant/defendant filed a memorandum of cross objection as Cross Objection No. 4289/2004 assailing the finding by the trial court that Janu, the wife of Imbichi had half right over the plaint schedule property. When the appeal came up for hearing, the plaintiffs/appellants got the appeal dismissed as not pressed. Thereafter, what survived was the memorandum of cross objection filed by the appellant herein. Even though the lower appellate court observed in paragraph 7 of the judgment that being a suit for injunction, the legal status of the defendant was irrelevant, that court considered the evidence adduced by the appellant to hold that there was no acceptable evidence to prove the customary marriage between the appellant and the deceased Krishnan. Consequently, the lower appellate court came to the conclusion that there was no evidence to show that the appellant/defendant is keeping possession of the plaint schedule property as the legally wedded wife of Krishnan. That R.S.A. No. 1200/2008 : 4: court, however, took note of the fact that another case has been filed to declare the status of the appellant as the legally wedded wife of Krishnan and observed that these points need not be adjudicated in the cross objection which was however dismissed. Hence this Second Appeal. 5. In as much as the suit was dismissed by the trial court holding that the appellant herein was in possession of the plaint schedule property and the said dismissal became final with the plaintiffs/appellants getting the appeal filed as A.S. No. 327 of 2004 dismissed as not pressed, it was unnecessary for the lower appellate court to consider the contention raised in the cross objection filed by the appellant herein as cross objection No. 4289 of 2004. Any finding regarding the title of the defendant in a suit for injunction is wholly irrelevant particularly when the suit had been dismissed in her favour. So, the finding regarding the defendant's legal status or title over the plaint schedule property, apart from being irrelevant could not also bind the defendant since the decree of the trial court was wholly in her favour. Therefore, the observations and findings as well as the dismissal R.S.A. No. 1200/2008 : 5: of the cross Appeal No. 4289 of 2004 by the lower appellant court cannot bind the appellant and she will not be precluded from agitating the question of her marital status and title over the property in a properly instituted suit. Clarifying this position, this Second Appeal is dismissed. Dated this the 9th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1200/2008 : 6: