IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 RSA.No. 931 of 2011() --------------------- AS.20/2010 of SUB COURT, PERUMBAVOOR OS.406/2007 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/RESPONDENT IN A.S/PLAINTIFF IN THE O.S --------------------------------------------------------------------- RAIGAN GEORGE,S/O. GEORGE, EDAPPULAVAN HOUSE,RAYONPURAM P.O., VALLAM KARA,CHELAMATTOM VILLAGE. BY ADV. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI RESPONDENT(S): APPELLANT IN AS/DEFENDANT IN O.S --------------------------------------------------------------------------------- VINCENT C.K, S/O. KOCHU VAREETH,CHAKKIYATH HOUSE, KANJIRAKKAD KARA,PERUMBAVOOR VILLAGE, PIN 683542. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 931 OF 2011 =========================== Dated this the 9th day of August,2011 JUDGMENT Plaintiff in O.S.406/2007 on the file of Munsiff Court, Perumbavoor is the appellant. Defendant is the respondent. Suit was instituted seeking a decree for permanent prohibitory injunction contending that plaint A schedule property belongs to the appellant under Ext.A1 sale deed and plaint B schedule property belongs to the respondent and it lies to the east of plaint A schedule property. On the western side of the plaint A schedule property there is a thodu and further west of the thodu is M.C. road and road poramboke and respondent attempted to construct a way from the M.C road through the plaint A schedule property to plaint B schedule property and he has no right to do so and therefore he is to be RS No.931/2011 2 restrained by a permanent prohibitory injunction. Respondent resisted the suit contending that appellant did not obtain any right over plaint A schedule property under Ext.A1 sale deed and the property covered under Ext.A1 is in R.S.No.561/6 with old survey No.387/10 and 387/11 and the property mentioned in Ext.A1 is in R.S.No.561/15 with old survey No.387/8 and 387/9B and the assignor under Ext.A1 had no title to the plaint A schedule property and the appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence granted a decree in favour of the appellant. The respondent was restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property which is identified as plot 1 in Ext.C2 plan. Respondent challenged the judgment before Sub Court, Perumbavoor in A.S.20/2010. Learned Sub Judge on reappreciation of the evidence found that though no issue of title was framed and a suit is only one for injunction, as RS No.931/2011 3 the appellant is claiming right based on Ext.A1 and the respondent raised a contention that appellant did not derive any right under Ext.A1 or to the plaint A schedule property, it is necessary to consider the right claimed by the appellant. Learned Sub Judge based on Ext.A11 which shows that old survey numbers as well as their corresponding resurvey numbers found that under Ext.A1 appellant obtained the property from George who in turn obtained it under Ext.B1 from Ummer Haji who in turn obtained it from Pathumma under Ext.B4 and Pathumma obtained right under Ext.A17 settlement deed. Relying on Ext.A11 it was found that the property covered under Ext.A17, B4, B1 and A1 is not the plaint A schedule property. Learned Sub Judge also found that though appellant subsequently obtained Ext.A18 termed as a relinquishment deed from Pathumma, no validity could be attached to that document and held that appellant is not entitled to the decree sought for. It is challenged in the appeal. RS No.931/2011 4 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that when no issue regarding title was framed by the trial court and the suit is only one for injunction instituted paying court fee only under section 27 (c) of the Kerala Court Fees and Suits Valuation Act, first appellate court was not justified in going deep into the question of title. Learned counsel argued that when there is mistake in the survey number, shown in the documents, as is clear from the title deeds produced by the appellant as well as the respondent, first appellate court was not justified in interfering with the decree. Learned counsel argued that in any case an opportunity is to be granted to the appellant to prove the case based on title and for that purpose the suit is to be remanded. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. RS No.931/2011 5 6. Though an issue of title was not framed, appellant sought the decree based on Ext.A1 assignment deed executed by George. It was contended that the old survey number and the resurvey number shown in Ext.B1 the assignment deed executed by George, was a mistake and the property covered under Ext.A1 is in R.S.No.561/15 with old survey No.387/9B. Ext.A11 shows that the corresponding resurvey of old survey No.387/8 is R.S. No.561/14 and old survey No.387/9B is R.S.No.561/15. Ext.B1 by which George obtained the right shows that the property is in R.S.No.561/6 with old survey No.387/10 and 387/11. Ext.A11 shows that the corresponding resurvey of old survey No.387/10/1 is R.S.No.561/16 and that of O.S 387/11 is R.S.No.561/6. The assignor under Ext.B1 obtained the right under Ext.B4 which shows R.S.No.561/16 and 561/6 with old survey No.387/10/1 and O.S.387/10/2. That assignor under Ext.B4 obtained the right under Ext.A17, the settlement deed, whereunder plaint C schedule was allotted to RS No.931/2011 6 the assignor Pathumma. Though in 2009, more than 15 years after execution of Ext.B4 assignment deed whereunder she had parted with her right in the property obtained under Ext.A17, she had relinquished the right in favour of the appellant under Ext.A18 on 8.10.2009, first appellate court was fully justified in holding that based on Ext.A1 appellant cannot claim right to the plaint schedule property. The property was also not identified with reference to the boundaries. In such circumstances, I do not find any substantial question of law involved in the appeal. But as an issue regarding title was not framed, dismissal of the suit will not operate as a bar against a suit based on title. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006