Second Appeal from judgment dismissing suit for permanent prohibitory injunction. Court held that for an injunction suit, only possession matters. Evidence showed respondents in possession of the disputed ridge. Appeal dismissed as no substantial question of law arose.
Second Appeal dismissed; no relief granted to the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931
RSA.No. 887 of 2009()
--------------------AS.196/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.102/1997 of MUNSIFF COURT, CHITTUR
APPELLANT(S)/APPELLANT/PLAINTIFF:
MADHAVAN, S/O. PONNAN
RESIDING AT PAPPACHALLA, MUTHALAMADA AMSOM, CHITTUR TALUK,
PALAKKAD DIST.
BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE
SRI.S.SUJIN
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
THOMAS P. JOSEPH, J.
R.S.A.No.887 of 2009
Dated this the 14th day of September, 2009.
JUDGMENT
Substantial questions of law attempted to be raised in this Second Appeal
are:
i. Are the courts below justified in holding that the plaintiff is not in possession of the disputed ridge when a major portion of the ridge lies in the survey sub-division in which the plaint schedule property lies?
ii. Whether fixation of boundaries by the authorities under the Survey and Boundaries Act is final and conclusive of the same is subject to the suit legally instituted in the competent civil court?
iii. Whether the fixation made under the Survey and Boundaries Act without effecting mutation with regard to the properties which are allotted as per the valid partition deed is valid under the provisions of the Survey and Boundaries Act?
RSA No.887/2009
2
partition deed No.583 of 1969, a certified copy of which is marked as Ext.A1. B schedule in Ext.A1 was allotted to the appellant which is described as schedule property in the plaint. Property on the east belonged to respondents as per Ext.A1, partition deed. Appellant/plaintiff alleged that he is in possession and enjoyment of plaint schedule property which has specific boundaries on all sides. Respondents cut down trees from the said property and is attempting to remove the same. Appellant sued for permanent prohibitory injunction against trespass. Respondents contended that they have no claim over B schedule property in Ext.A1. Respondent No.1 claimed that E schedule of Ext.A1 is the property allotted to him as per Ext.A1 and that the said property is situated on the east of plaint schedule property. These properties are separated by ridge north-south and the property on the east belonged to respondent No.1. Ridge belonged to respondent No.1. He claimed that he had cut and removed the trees standing on the ridge. On the application of respondent No.1, Taluk Surveyor measured properties on 27.1.1997 in the presence of appellant as well as respondent No.1 and fixed boundary. Appellant gave evidence as PW1 and proved Ext.A1. Respondent No.1 gave evidence as DW1 and proved Exts.B1 to B4. DW2 is a witness examined by respondent No.1. Exts.C1 and C2 are report and plan prepared by the advocate commissioner. Appellant when examined as PW1 claimed that he is in possession of the suit property. DWs 1 and 2 stated that the disputed ridge formed part of the property of respondent
RSA No.887/2009
3
No.1 and that the latter is in possession thereof. In Ext.C2, plan disputed ridge is shown in green colour. Courts below found that the northern and southern portions of the ridge came within the survey boundary line of appellant but the major middle portion of the ridge came in the survey boundary line of property belonging to respondent No.1. It also came in evidence that property admittedly belonging to the appellant is situated on the west of the ridge about two feet lower in level from the property belonging to respondent No.1. Learned Munsiff observed that suit is merely for a decree of prohibitory injunction as if the disputed ridge is in the possession of the appellant and that contention cannot be accepted.
RSA No.887/2009
4
law as urged in the appeal memorandum arises for a decision. Proper remedy of the appellant is to sue for title and such other reliefs if he is otherwise entitled as per law.
Resultantly, this Second Appeal fails. It is dismissed.
THOMAS P.JOSEPH, Judge.
cks
3 issues framed by the court
Whether courts were justified in holding that the plaintiff is not in possession of the disputed ridge when a major portion lies in the survey sub-division of the plaint schedule property.
Whether fixing of boundaries by authorities under the Survey and Boundaries Act is final and conclusive without prior suit legally instituted.
Whether fixation under the Survey and Boundaries Act without effecting mutation for properties allotted by a valid partition deed is valid.
1 provisions across 1 enactments
MADHAVAN, S/O. PONNAN
CHITHAMBARAN, S/O. PONNAN
BALAN, S/O. PONNAN
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
