Dismissed

Nellikaparambath Mariyam v. Karuvankandi Thazha Kuni Achuthan

Kerala HC21 May 2012RSA/340/2012

Case brief

AI extract

What is this about?

This regular second appeal was dismissed as it did not involve a substantial question of law. The High Court held that the appellant failed to prove ownership of the disputed land to the Panchayat and had no right to lay pipes across the road to discharge water.

What did the court decide?

The second appeal and all pending interlocutory applications were dismissed.

Nellikaparambath Mariyam Vs Karuvankandi Thazha Kuni… — Property and Title | 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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MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934

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RSA.No. 340 of 2012 ()

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AS.3/2010 of SUB COURT, QUILANDY OS.33/2008 of MUNSIFF-MAGISTRATE COURT, PAYYOLI

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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NELLIKAPARAMBATH MARIYAM,

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“THASMINA”, D/O.MOIDEEN, 68 YEARS, SWASTHAM, MEPPAYUR AMSOM DESOM, KOYILANDY TALUK.

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BY ADVS.SRI.N.L.KRISHNAMOORTHY

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SRI.K.LAKSHMINARAYANAN

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SMT.SATHYA SHREEPRIYA

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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KARUVANKANDI THAZHA KUNI ACHUTHAN, FATHER'S NAME NOT KNOWN, 68 YEARS, AGRICULTURE, MEPPAYUR AMSOM DESOM, MEPPAYUR P.O,

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KOYILANDY TALUK - 673 524.

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SON, KARUVANKANDI THAZHAKUNI KELAPPAN, 48 YEARS, WORKING IN MEDICAL SHOP, MEPPAYUR AMSOM DESOM, MEPPAYYUR P.O.

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KOYILANDY TALUK - 673 524.

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MEPPAYYUR PANCHAYATH, MEPPAYYUR P.O.

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MEPPAYYUR - 673524(REPRESENTED BY ITS SECRETARY).

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-05-2012, 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.340 of 2012

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Dated this the 21^st day of May, 2012.

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JUDGMENT

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Plaintiff in O.S.No.33 of 2008 of the court of learned Munsiff-Magistrate, Payyoli is aggrieved by the concurrent finding entered by that court as well as the first appellate court and negation of the right claimed by her.

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According to the appellant/plaintiff, plaint A schedule belongs to her as per Ext.A1, assignment deed dated 27.04.2005. She produced Ext.A2, receipt for payment of revenue for the said property and claimed that property on the north belongs to respondents 1 and 2. On the northern boundary of the plaint A schedule there is a granite wall while on the southern boundary of the property of respondents 1 and 2 there is a mud wall of six feet height. It is the further case of appellant that there is an old water chal between the granite and mud walls at a width of one metre and depth of one metre. According to the appellant, the water chal does not belong to herself or respondents 1 and 2. There is a Panchayat road on the western side of plaint A schedule and another water chal running parallel to the said road, from north to south. That water chal passes through the property of respondents 1 and 2. Property of respondents 1 and 2 is at a higher level from plaint B schedule water chal. Grievance of the appellant is that stagnation of water in plaint B schedule damages crops in plaint A schedule. In the presence of the Panchayat authorities it was decided to

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RSA No.340/2012

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install pipes across the road and accordingly, appellant installed five pipes. While she was attempting to install pipes further, there was obstruction from the respondents. It is further alleged that respondents have put up mud and stone in plaint B schedule, water chal. Hence appellant prayed for prohibitory and mandatory injunction.

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Respondents 1 and 2 contended that plaint B schedule is part of property belonging to the wife of 1^st respondent (and mother of the 2^nd respondent) and that when the wall was constructed on the northern boundary of the suit property, a water chal at a width of one foot was provided. That water chal got widened due to sliding of land from the property of 1^st respondent's wife due to flow of water. Respondents 1 and 2 denied contention of appellant that plaint B schedule belongs to the Panchayat and that the Panchayat authorities had taken a decision to lay pipes.

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Trial court framed issue whether appellant has right over plaint B schedule and any right to install pipes to discharge water as alleged, whether respondents 1 and 2 filled up any portion of plaint B schedule and whether appellant has any cause of action to seek the reliefs prayed for.

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Answering the issue against the appellant, she was non-suited. Learned Sub Judge, Koyilandy in A.S.No.3 of 2010 considered whether there is reason to interfere with the findings of the trial court, found against the appellant and dismissed the appeal. Hence this Second Appeal.

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RSA No.340/2012

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It is contended by the learned counsel that the trial court has not framed proper issues and what was considered was whether appellant has right over plaint B schedule. It is pointed out that first appellate court also did not raise proper points and instead, the point considered was whether there was reason to interfere with the findings of the trial court. Learned counsel refers to Exts.C1 and C2 to contend that appellant has already laid five pipes and that laying of further pipes is necessary to avoid stagnation of water in plaint B schedule.

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Assuming that proper issues were not framed by the trial court, it is not as if appellant was without any remedy - Rule 5 of Order XIV of the Code of Civil Procedure (for short, “the Code”) enabled the court at any time before passing of the decree to amend the issue or frame additional issues as it thought fit. It was also within the power of the trial court before passing the decree to strike out any issue which appeared to it to be wrongly framed. If the appellant were dissatisfied with the issues framed he should have requested the trial court to invoke its power under Rule 5 of Order XIV of the Code. With the issues framed, appellant has adduced evidence. Moreover, it is seen that the trial court has framed an issue as to the right claimed by the appellant over plaint B schedule and whether the relief prayed for by appellant could be granted.

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RSA No.340/2012

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So far as the first appellate court is concerned, if it agrees with the findings entered by the trial court it is sufficient that it generally states the case, discusses the evidence and enters its finding. First appellate court has considered whether interference with the judgment and decree of the trial court is required. While considering that point it was open to the appellant to raise all the relevant points necessary to decide that question.

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So far as the claim of appellant that plaint B schedule belongs to the 3^rd respondent/3^rd defendant, the Panchayat is concerned, no evidence was let in except Ext.A4, said to be a letter issued by the Chairman of the the Welfare Standing Committee of the Panchayat. That letter, it is stated by the appellant, was given to her to be delivered to the Sub Inspector of Police to render necessary aid to install pipes to discharge water from plaint B schedule. The version of appellant is that she had delivered Ext.A4 to the Sub Inspector who, after retaining its photocopy returned the original to her. That was not believed by the courts below, being against the normal practice. No document was produced to show that plaint B schedule belongs to the 3^rd respondent notwithstanding that respondents 1 and 2 have contended that plaint B schedule forms part of property belonging to the wife of 1^st respondent and mother of the 2^nd respondent. As per Ext.A1, assignment deed, the northern boundary of appellant's property is described as rest of the property (while the western boundary is stated as Panchayat road). If actually plaint B schedule was in existence then, the northern boundary of the suit property would not have been

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RSA No.340/2012 5

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described in Ext.A1 as aforesaid. Courts below found that appellant was not able to establish that plaint B schedule belonged to the Panchayat. That finding involves no substantial question of law.

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So far as laying of pipes across the road is concerned, trial court found and first appellate court concurred that appellant has no right to lay pipes across the Panchayat road and from the plaint B schedule. In that view of the matter appellant was not entitled to seek reliefs prayed for.

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Having heard learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring its admission.

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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

Nellikaparambath Mariyam v. Karuvankandi Thazha Kuni Achuthan

Case brief

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What did the court decide?

Nellikaparambath Mariyam v. Karuvankandi Thazha Kuni Achuthan

Case brief

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