Dismissed

Mavila Krishnan Nambiar v. K.P.Radha

Kerala HC7 Mar 2008RSA/984/2007

Case brief

AI extract

What is this about?

In a regular second appeal from a Sub Court, the High Court of Kerala dismissed the appeal. The suit was for a permanent prohibitory injunction regarding property possession. The lower courts found the respondent was in possession and the appellant was not. The High Court held this finding was not perverse and no substantial question of law arose, dismissing the appeal. Title was not decided.

What did the court decide?

The appeal was dismissed, the judgment below was upheld, and the injunction decree stands affirmed.

Mavila Krishnan Nambiar Vs K.P.Radha — Property and Title | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929

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RSA.No. 984 of 2007() --------------------AS.10/2003 of SUB COURT, KASARAGOD OS.350/2001 of ADDL.MUNSIFF, KASARAGOD

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: APPELLANT/APPELLANT/DEFENDANT:

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----------------------------------------------MAVILA KRISHNAN NAMBIAR, S/O. KUNHIRAMAN NAIR, RESIDING AT NELKARLE OF KARADKA VILLAGE, P.O. KARADKA (VIA), MULLERIA, KASARAGOD TALUK AND DISTRICT.

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BY ADV. SRI.K.SHRIHARI RAO

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RESPONDENTS: RESPONDENT/PLAINTIFF:

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K.P. RADHA, W/O. P.K. LOHITHAKSHAN AND D/O.M.KRISHNAN NAIR, TEACHER, RESIDING AT AMARAVATHI HOUSE, KARADKA VILLAGE AND POST, KASARAGOD TALUK AND DIST BY ADV. SRI.K.JAJU BABU SRI.T.S.SHYAM PRASANTH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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M.SASIDHARAN NAMBIAR,J.

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===========================

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R.S.A. NO. 984 OF 2007

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===========================

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Dated this the 7^th day of March, 2008

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JUDGMENT

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Appellant is the Defendant in O.S.350/2001 on

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the file of Munsiff Court, Kasaragod . Respondent

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is the plaintiff. She instituted the suit for permanent prohibitory injunction. Case of the respondent is that plaint A schedule property is in her actual possession and enjoyment and it was purchased by respondent under Ext.A1 sale deed in 2001 and even prior to the sale deed she has been in possession of the property along with other properties and appellant has no manner of right or possession over the same and he is attempting to trespass into the plaint schedule property based on fradulent document and he is to be restrained by a

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permanent prohibitory injunction. Appellant resisted the suit contending that description of the plaint A schedule property is defective and boundaries given are not correct and respondent is

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not in possession of plaint A schedule property and Ext.A1 sale deed is not genuine and her assignor Krishnan Nair was not in possession of the property as Derman Nair, father of Krishnan Nair sold his entire property in R.S.No.486/3A as per sale deed dated 23.12.1942 and thereafter Derman Nair was not in possession of the property and respondent did not obtain any right under Ext.A1 and she is not in possession of the property and suit is to be dismissed. Respondent got the plaint amended in accordance with Ext.C2 plan after the Commissioner submitted Ext.C1 report and C2 plan identifying the property.

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Learned Munsiff on the evidence of PW1, Dws.1 and 2, Exts.A1 to A8, Exts.B1 to B9, Exts.C1 and C2 found that plaint schedule property is as identified by the Commissioner in Ext.C2 and as plaint was amended in accordance with Ext.C2, identity of the plaint A schedule property is established. Learned Munsiff on the evidence also

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found that respondent has established her

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possession of the property and appellant is not

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in possession of the property and he is not entitled to trespass into the property. A decree for permanent prohibitory injunction was granted restraining appellant from trespassing into any portion of A schedule property or interfering with her peaceful possession and enjoyment of the A schedule property. Appellant challenged the judgment before Sub Court, Kasaragod in A.S.10/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

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Learned counsel appearing for appellant was heard.

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The argument of the learned counsel is that though respondent claimed right under Ext.A1 she did not get any right under Ext.A1 as assignor was not having any right as the father sold the property much prior to the assignment under Ext.A1 and courts below did not properly appreciate the

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evidence and it should have found that respondent is not in possession of the plaint schedule

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property. Learned counsel also argued that plaint schedule property was not properly identified and

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in such circumstance the decree granted is not sustainable.

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On hearing the learned counsel I do not

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find that any substantial question of law is involved in the appeal.

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The suit being only one for an injunction

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simpliciter, question is with regard to

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possession of the plaint schedule property. No issue of title was either raised or considered by the courts below. The courts below also decided

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the suit based on possession. Trial court on appreciation of evidence entered a factual finding that respondent has proved her possession of the

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plaint schedule property and appellant is not in possession of the property. First appellate court reappreciated the evidence and confirmed that factual finding. The question is whether that

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factual finding arrived at by the courts below, on the basis of appreciation of evidence is to be interferd in exercise of the powers of this court under section 100 of Code of Civil Procedure. On going through the judgments of the courts below, it cannot be said that appreciation of evidence was perverse warranting reappreciation of evidence. In such circumstance, in the light of the factual finding that respondent has established her possession of the plaint schedule property appeal is dismissed. It is made clear that the question of title is not decided in the suit.

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M.SASIDHARAN NAMBIAR JUDGE

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tpl/-

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M.SASIDHARAN NAMBIAR, J.

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--------------------W.P.(C).NO. /06

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JUDGMENT

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SEPTEMBER,2006

Mavila Krishnan Nambiar v. K.P.Radha

Case brief

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Mavila Krishnan Nambiar v. K.P.Radha

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