IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 RSA.No. 350 of 2011() --------------------- AS.182/2009 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.259/2004 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS 2 TO 4 ------------------------------------------------------ 1. ANNIE SEBASTIAN,D/O.LATE ABRAHAM, MOONJELI HOUSE,CHERAI,NOW RESIDING AT PATHIPURAYIDOM,KARUMALLOOR. 2. MARY CYRIAC,D/O.LATE ABRAHAM, CHIRAKKAL HOUSE,THAMARAYOO P.O, KOTTAPPADI P.O., GURUVAYOOR. 3. CICILY JOSE,D/O. LATE ABRAHAM, KANDAYIKKODAN HOUSE,NJARAKKAL. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): RESPONDENTS/DEFENDANT & IST PLAINTIFF ---------------------------------------------------- 1. HARI,S/O.JANAKI,KANNATHUSSERY, CHERAI,PALLIPPURAM VILLAGE.PIN-688541 2. MERCY ANTONY,D/O.LATE ABRAHAM, MENACHERY HOUSE,KARUMALLOOR, PIN-688541 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.350 OF 2011 --------------------------------------------- Dated 15th March, 2011 JUDGMENT Appellants are plaintiffs 2 to 4 in O.S.259/2004 on the file of Munsiff's Court, North Paravur. First plaintiff is the second respondent. First respondent is the defendant. The suit was filed for permanent prohibitory injunction. Plaint A schedule property is 29.90 cents in survey No.167/2 of Pallippuram village. It is excluding 6.918 cents granted as kudikidappu out of 37 cents, originally belonged to the plaintiffs. Plaint B schedule property is shown as the constructions made on the southern side of the plaint A schedule property including 800 sq.ft. Foundation, shed, latrine and the land occupying the said structures. 37 cents was allotted to the share RSA 350/11 2 of K.V.Abraham under Ext.A1 partition deed. The plaintiffs are claiming right from K.V.Abraham as his legal heirs. Case of the appellants is that out of 37 cents, in lieu of the kudikidappu right available to Raghavan, who was permitted to reside in a hut on executing Ext.A2 coolie charthu in 1117 M.E, 6.918 cents was given as kudikidappu. Plaint A schedule property is the remaining property. It is also contended that while Raghavan was occupying the hut, his brother Kumaran with his Janaki were also living with Raghavan. Later Raghavan shifted his residence. So kudikidappu right was granted to Janaki. It is the case that thereafter with their permission Raghavan had constructed a shed and later without the knowledge of the appellants, additional structures were also constructed. Suit is filed RSA 350/11 3 seeking a decree for permanent prohibitory injunction in respect of the entire plaint A schedule property contending that plaint A schedule property is in their possession and also for a decree for mandatory injunction directing surrender of plaint B schedule property. The trial court on the evidence found that appellants are not in possession of the plaint A schedule property and therefore, are not entitled to the decree for permanent prohibitory injunction or mandatory injunction. Appellants challenged the judgment before Additional District Court, North Paravur in A.S.182/2009. Learned Additional District Judge on re-appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA 350/11 4 2. Learned counsel appearing for the appellants was heard. 3. Argument of the learned counsel appearing for the appellants is that as relief B appellants had in fact sought recovery of possession on the strength of title and courts below omitted to take note of the said relief and proceeded, as if the suit is for mandatory injunction and therefore, the suit is to be remanded for fresh disposal. Learned counsel made available the copy of the plaint. A reading of the plaint discloses that specific contention in paragraph 8 of the plaint is that excluding 6.918 cents which was given as kudikidappu to Janaki, plaint A schedule property has been in their actual possession and respondent is not entitled to trespass into that property and therefore, a decree is to be RSA 350/11 5 granted. First relief sought for is a decree for permanent prohibitory injunction in respect of plaint A schedule property. True, it could be said that relief B could also be interpreted as recovery of possession. But court fee paid was not paid under Section 30 of Kerala Court Fees and Suit Valuation Act and instead under Section 25 and 27(c) of the Act. Section 25 could only be the court fee payable for a suit for declaration and not for recovery of possession. Section 27 is for court fee payable for a suit for injunction. The details of the court fee paid shown in the plaint discloses that court fee was paid for mandatory injunction and not for the relief of recovery of possession. In such circumstances, courts below cannot find fault for treating the suit as a decree of mandatory RSA 350/11 6 injunction alone, especially when there is no case for the appellants in the plaint that first respondent trespassed into plaint C schedule property and plaint C schedule property is in his possession of the plaintiff. What was contended was that entire plaint A schedule property has been in their possession. In such circumstances, I find no substantial question of law involved in the appeal. But as the claim was based on title, which was not settled by the courts below, dismissal of the suit will not disentitle the plaintiffs from seeking a decree for recovery of possession based on their title. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.