Dismissed

Sarojini Raghavan & Others v. K.Nandanan

Kerala HC12 Apr 2012RSA/1198/2008

Case brief

AI extract

What is this about?

High Court in regular second appeal dismissed the appeal against dismissal of a suit filed for a permanent injunction regarding trespass into scheduled properties. The appellant, plaintiff in the suit below, sought to restrain his brother from entering government land. The appeal was dismissed as no substantial question of law arose from the findings on possession.

What did the court decide?

Second Appeal dismissed; all pending interlocutory applications dismissed.

Sarojini Raghavan & Others Vs K.Nandanan — Partition | Kerala HC (2012)

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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 THOMAS P.JOSEPH

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THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934

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RSA.No. 1198 of 2008 ( )

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AS.75/2005 of SUB COURT, KASARAGOD OS.204/2004 of ADDL.MUNSIFF COURT, KASARAGOD

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APPELLANT(S)/APPELLANTS/APPELLANTS/PLAINTIFFS:

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SAROJINI RAGHAVAN, AGED 71 YEARS,

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W/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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ASHOKAN, AGED 51 YRS,

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S/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE,KASARAGOD TALUK AND DISTRICT.

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LALITHA, AGED 48 YEARS,

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D/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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BHANU, AGED 46 YEARS,

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D/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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KANCHANA, AGED 44 YEARS,

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D/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE,KASARAGOD TALUK AND DISTRICT.

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PRAKASHAN, AGED 42 YEARS,

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S/O..(LATE)K.RAGHAVAN, KASARAGOD KASABA, KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE KASARAGOD KASABA VILLAGE,KASARAGOD TALUK AND DISTRICT.

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CHITRA, AGED 39 YEARS,

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D/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA, KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE

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KASARAGOD KASABA VILLAGE,KASARAGOD TALUK AND DISTRICT.

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RSA NO.1198/2008

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SHAKEELA, AGED 34 YEARS,

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D/O.(LATE)K.RAGHAVAN,KASARAGOD KASABA KADAPPURAM BEACH ROAD, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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RAGINI, AGED 35 YEARS, D/O.(LATE)K.RAGHAVAN, KASARAGOD KASABA KADAPPURAM BEACH ROAD,KASARAGOD KASABA VILLAGE,KASARAGOD TALUK AND DISTRICT.

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BY ADVS.SRI.P.K.MUHAMMED

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SRI.M.ABDUL RASHEED

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RESPONDENT(S)/RESPONDENT/ DEFENDANT:

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(*)K.NANDANAN, AGED 69 YEARS, S/O.(LATE)KRISHNAN, RESIDING AT NEAR SUNIL LODGE ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.(DIED. LRS. IMPLEADED)

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ADDL.RESPONDENTS 2 TO 6:

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SAROJINI, W/O.NANDANAN, RESIDING AT NEAR SUNIL LODGE, ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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SUNIL, S/O.NANDANAN, RESIDING AT NEAR SUNIL LODGE, ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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SUSIL, S/O.NANDANAN, RESIDING AT NEAR SUNIL LODGE, ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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SUHAS, S/O. S/O.NANDANAN, RESIDING AT NEAR SUNIL LODGE, ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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SUNITHA, D/O.NANDANAN, RESIDING AT NEAR SUNIL LODGE, ANANGOOR, KASARAGOD KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT.

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(*)LRS OF DECEASED RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 6 AS PER ORDER DATED 12.04.2012 ON IA NO.435/2009.

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BY ADV. SRI.K.LAKSHMINARAYANAN BY ADV. SMT.SATHYA SHREEPRIYA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.1198 of 2008

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Dated this the 12^th day of April, 2012.

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JUDGMENT

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Plaintiff in O.S.No.204 of 2004 of the Munsiff's Court, Kasaragod is aggrieved by the dismissal of the suit as confirmed by the Sub Court, Kasaragod in A.S.No.75 of 2005. Parties are referred plaintiff and defendant, as in the suit.

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Plaintiff sued the defendant, his brother for a decree for prohibitory injunction against trespassing into plaint A and B schedules. Plaint A schedule is the property which plaintiff got as per the final decree in O.S.No.89 of 1979 of the Sub Court, Kasaragod. Plaint B schedule is Government land comprised in R.S.No.4/1 which plaintiff claimed, was leased out to him as per Ext.A3, order dated 24.10.1983 for two years. According to the plaintiff, plaint B schedule was in his possession and enjoyment since several years and while so, in the year, 1983, he constructed a temple in the said property. The Government did not renew the lease but, appellant continues to be in possession of plaint B schedule. He alleged that defendant made attempts to trespass into plaint B schedule. Hence the suit.

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Defendant contended that property on the south of plaint A schedule was allotted to him and the property on the further south of his property was allotted to another brother, Vijayan as per the final decree in O.S.No.89 of 1979. Defendant started construction of compound wall in his property. Dispute

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RSA No.1198/2008 2

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regarding boundary of plaint A schedule was settled by mediation on 05.03.2004. As per the compromise, defendant was to collect materials for construction of the boundary wall. Defendant contended that plaintiff has no possession of plaint B schedule and that portion of plaint B schedule measuring about 12 cents lies contiguous to the property allotted to him and Vijayan as per the final decree in O.S.No.89 of 1979 and that the said 12 cents is necessary for the beneficial enjoyment of property allotted to the defendant and Vijayan in the said partition. It is further contended that plaintiff obtained lease of plaint B schedule pending the partition suit. The temple in plaint B schedule is constructed towards the west of property of defendant. Defendant denied that the temple was constructed by the plaintiff.

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Trial court dismissed the suit holding that plaintiff failed to show that he is in possession of any portion of plaint B schedule. That was confirmed by the first appellate court and hence this second appeal.

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Notice before admission was given to the respondent who appeared through counsel.

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So far as plaint A schedule is concerned, there is no dispute between the parties and it is admitted that plaint A schedule was allotted to the plaintiff as per final decree in O.S.No.89 of 1979. Since defendant does not make any claim over plaint A schedule, courts below are justified in refusing relief with respect to plaint A schedule.

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RSA No.1198/2008

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Ext.A3 is the order dated 24.10.1983 passed by the Tahsildar granting lease of plaint B schedule to the plaintiff. It is not disputed that Ext.A3 was for 1984-85 and that the said lease was not renewed thereafter. Several years thereafter, appellant filed application for renewal of the lease which the Tahsildar rejected as per Ext.B8, order and that was confirmed by the appellate authority as well. In Ext.B8, order the Tahsildar while rejecting the application for renewal of lease says that the application for renewal was made after several years of the period mentioned in Ext.A3 and that plaint B schedule was let out to the plaintiff for beneficial enjoyment of the entire property of the family (which was the subject matter of the partition suit - O.S.No.89 of 1979). It is revealed from Ext.X3 that pursuant to Ext.B8, order the Village Officer resumed possession of B schedule on 07.12.2004.

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Plaintiff produced Ext.A8, order dated 07.12.2004 of the appellate authority to show that Ext.B8, order was stayed. But there is nothing on record to show that possession of plaint B schedule resumed by the Village Officer on 07.12.2004 was re-conveyed to the plaintiff. True that Ext.A9, order shows that Ext.B8, order was set aside and the case was remitted to the District Collector (appellate authority) for decision. It is admitted by both sides that the District Collector dismissed the appeal and that was confirmed by the Commissioner of Land Revenue. It is evident that plaintiff had no possession of plaint B schedule as on the date of the suit. Hence courts below are justified in not granting relief to the appellant.

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RSA No.1198/2008

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On going through the judgments under challenge and hearing learned counsel on both sides I do not find any substantial question of law involved in the appeal requiring admission of the appeal.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Sarojini Raghavan & Others v. K.Nandanan

Case brief

What is this about?

What did the court decide?

Sarojini Raghavan & Others v. K.Nandanan

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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