IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 RSA.No. 1253 of 2004() ---------------------- AS.119/1995 of I ADDL. DISTRICT COURT, PALAKKAD OS.253/1994 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/DEFENDANT --------------------------------------- HAMEED, S/O.PANAMVECHA PARAMBIL SAITHU, MUHAMAMED RAVUTHAR, MERCHANT, PALAKKAD TALUK, MANGAURSSI AMSOM. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- SUDHEER, S/O.KAKKOTTIL BALAKRISHNAN, STUDENT, PALAKKAD TALUK, MANGURUSSI AMSOM. ADV. SRI.T.C.SURESH MENON FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1253 of 2004 ............................................ DATED THIS THE 19th DAY OF NOVEMBER, 2011 JUDGMENT Defendant in O.S.253 of 1994 on the file of Munsiff Court, Palakkad is the appellant. Plaintiff is the respondent. Suit was filed for a permanent prohibitory injunction restraining appellant from trespassing into the plaint schedule property. Plaint schedule property is 1 acre 56 cents in R.S.107/1, 18 cents in R.S.107/2 and 18 cents in R.S.108B/12 of Mangrussi Village of Palakkad Taluk. Plaint schedule property absolutely belonged in jenmom to Poomulli mana. Respondent contended that it was outstanding in the possession of Assanumma @ Ammalumma on kanom right and O.S.57 of 1946 before Sub Court, Ottapalam was filed for partition of the property and a final decree was passed based on Ext.A1 report, whereunder plaintiffs 5,6, defendants 1, 2, 4 and 7 therein were permitted to take water from the tank and the property was alloted to Assanumma @ Ammalumma. She thereafter gifted the property, under Ext.A2 in 1959, in favour of Ayissumma and her husband Chand RSA 1253/2004 2 Muhammed Rawther. Under Ext.A4 partition deed, properties were divided and 5/6 share was alloted to Abdul Jabbar, who pruchased jenmom right from the Land Tribunal and later assigned the property in favour of the respondent under Ext.A5 sale deed. Respondent would claim right and possession of the property based on Ext.A5. Contending that appellant is attempting to trespass into the property, a decree for injunction was sought for. 2. Appellant resisted the suit contending that plaint schedule properties were outstanding in the possession of Thalapotta Narayanan and in Meenam 1936, he granted verumpattom lease in favour of Sydumohammed, father of the appellant and later he executed Ext.B7 agreement to sell the property in favour of the appellant and he has been in possession of the property and respondent is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence finding that respondent has right and possession to the plaint schedule property, granted a decree for injunction restraining the respondent by a permanent prohibitory injunction from causing any damage to RSA 1253/2004 3 the bunds around the plaint schedule tank, pumping out water in such a manner as to dry the tank and from catching fishes from the tank and causing obstruction to the respondent from catching fishes. Appellant challenged the decree before Additional District Court, Palakkad in A.S.119 of 1995. Learned Additional District Judge, on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Appeal was admitted formulating the following substantial questions of law. “1)Did the courts below act in accordance with law in the matter of interpreting and construing Ext.A6 purchase certificate and Ext.B6 application as well as Exts.A3 and A5 assignment deeds ? 2) Did the courts below act in accordance with law in the matter of construing the pleadings in O.S.57 of 1946? Do those pleadings and the finality of that suit impair the right of the defendant in claiming possession over the tank in question ? “. 5. Learned counsel appearing for appellant and respondent RSA 1253/2004 4 were heard. The suit is only one for injunction. No issue on title was raised and no court fee was paid under Section 27(a) of Kerala Court Fees and Suit Valuation Act. In such circumstances, the only question is whether respondent has established possession of the plaint schedule property. The question of title claimed by the respondent or the right claimed by the appellant need not be settled in the suit. In such circumstances, though substantial questions of law are formulated, both the counsel submitted that the substantial questions of law need not be answered in the second appeal and appeal be disposed based on the finding of fact. 6. Trial court, on proper appreciation of the evidence found that the properties were originally divided under the final decree in O.S.57 of 1946 and as per the final decree, the plaint schedule property was alloted to Assanumma @ Ammalumma and right to take water from the tank was also granted to plaintiffs 5, 6, D1, D2, D4 and D7 in that suit. It was also found that later Assanumma transferred that right in favour of her daughter Ayissumma and under Ext.A4 partition deed, it vests with Abdul Jabbar, who purchased the jenmom right from the Land Tribunal RSA 1253/2004 5 and later transferred it in favour of the respondent under Ext.A5. Learned Munsiff entered a factual finding that respondent established possession of the plaint schedule property. First appellate court re-appreciated the evidence and confirmed the factual finding. On going through the evidence, I find no reason to interfere with that factual finding, exercising the powers under Section 100 of Code of Civil Procedure. The question of title is not being settled as the suit is only one for injunction. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk