Dismissed

Ponnappan v. P.J. Thomas (Died)

Kerala HC2 Apr 2012RSA/378/2012

Case brief

AI extract

What is this about?

The single judge dismissed the second appeal against a first appellate order granting a prohibitory injunction based on possession. The court held that since no issue was formally raised on title in the trial court, finding on title was unsustainable but remission was unnecessary as the injunction was granted solely on possession.

What did the court decide?

Second Appeal dismissed; all pending interlocutory applications dismissed.

Ponnappan Vs P.J. Thomas (Died) — 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 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934

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RSA.No. 378 of 2012 ()

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AS.37/2004 of SUB COURT, CHERTHALA OS.1045/1998 of PRL.MUNSIFF COURT, CHERTHALA

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APPELLANT/RESPONDENT/DEFENDANT:

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PONNAPPAN/S/O. MADHAVAN, PUTHENPURAYIL HOUSE, UZHUVA MURI, VAYALAR EAST VILLAGE.

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BY ADVS.SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.RACHEL JOSEPH SRI.MARTIN D.ALUMKARA SMT.R.RAJASREE (CHUTTIMATTATHIL)

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RESPONDENT(S)/APPELLANTS/PLAINANTIFFS:

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1. P.J. THOMAS (DIED),S/O. LONAN, KIZHAKKE KARUVELI,

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UZHUVA MURI, VAYALAR EAST VILLAGE (DIED).

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2. MARYKUTTY,W/O. OF P.J. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI, VAYALAR EAST VILLAGE.

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3. JOHN, S/O. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI VAYALAR EAST VILLAGE.

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4. JOSEPH, S/O. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI VAYALAR EAST VILLAGE.

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5. LICY, S/O. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI VAYALAR EAST VILLAGE.

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6. TOMY, S/O. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI VAYALAR EAST VILLAGE.

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7. BABICHAN, S/O. THOMAS,KIZHAKKE KARUVELI, UZHUVA MURI VAYALAR EAST VILLAGE.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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svs

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THOMAS P. JOSEPH, J.

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R.S.A. No.378 of 2012

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Dated this the 2^nd day of April, 2012.

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JUDGMENT

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Defendant in O.S.No.1045 of 1998 of the court of learned Principal Munsiff, Cherthala is aggrieved by the reversal of dismissal of the suit by learned Sub Judge, Cherthala in A.S.No.37 of 2004.

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Original plaintiff (he died pending suit) filed the suit for a decree for prohibitory injunction against trespass claiming that he is the owner in possession of seven cents described in the plaint schedule, as per assignment deed No.5624 of 1993. He claimed that it is part of 67 cents (his having obtained 60 cents on varam arrangement and later obtained patta for the said property). There is chiras on the north, east and west of the said 60 cents which original plaintiff claimed to have purchased as per Ext.A4. Property on the north of property of original plaintiff belonged to the appellant/defendant. It is alleged that appellant removed the boundary fence. Hence the suit for injunction.

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Appellant contended that original plaintiff has no right over the suit property and that the jenmi had only less than 67 cents. Property of the jenmi is possessed by the original plaintiff on varam arrangement. There is no property for the jenmi on the north, east and west of the said property. He also claimed that Ext.A4, assignment deed is created fraudulently.

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RSA No.378/2012

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Trial court did not accept the case of original plaintiff and dismissed the suit. Referring to Ext.B2, order of the Land Tribunal the trial court held that respondent therein is Raman Valliachan of Paliyath while according to the original plaintiff, he purchased the suit property as per Ext.A4 from Jacob Panjikkaran. Trial court was of the view that hence the seven cents referred to in Ext.B2, belonged to the appellant/defendant while original plaintiff claimed to have obtained title and possession of the said seven cents from Jacob Panjikkaran as per Ext.A4. Trial court dismissed the suit.

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Respondents took up the matter in appeal. Learned Sub Judge observed in paragraph 8 of the judgment that being a suit for injunction, trial court need not have decided the question of title without raising an issue and hence finding entered by the trial court as to the title of the said property cannot be sustained. First appellate court after observing so, proceeded to decide the question of possession claimed by the parties, referred to the documents and other evidence and held that original plaintiff was in possession of the suit property and hence respondents are entitled to the injunction prayed for. Accordingly, judgment and decree of the trial court were reversed and a decree for injunction based on possession was granted in favour of the respondents. That judgment and decree are under challenge.

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RSA No.378/2012

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Learned counsel contends that in view of the finding entered by the first appellate court referred above as to title, the proper course open to the first appellate court was to remit the case to the trial court for fresh decision. It is also contended that appellant had disputed possession of the suit property with the original plaintiff and having regard to the evidence, first appellate court ought not have reversed finding of trial court on possession.

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It is relevant to note from the judgment of trial court that the issue raised was whether original plaintiff has possession of the entire suit property and whether he is entitled to the injunction prayed for? Original plaintiff paid court fee under Sec.27(c) of the Kerala Court Fees and Suits Valuation Act. No issue regarding title was raised notwithstanding the contention raised by the appellant. In the circumstances, first appellate court is correct in observing that trial court need not have gone into the question of title and hence, finding of the trial court regarding title is not legally sustainable. It is also relevant to note that first appellate court granted relief to the respondents only on the strength of possession of the suit property found in their favour.

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I am not inclined to think that in the above circumstances first

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appellate court ought to have remitted the case to the trial court for fresh decision since the relief prayed for was only prohibitory injunction against

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RSA No.378/2012

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trespass and interfering with the possession of original plaintiff and if the first appellate court could grant that relief based on the evidence on record, remission of the case was not required.

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So far as possession found in favour of the original plaintiff is concerned, first appellate court has referred to Exts.A1 and A2. Ext.A1 is executed by Jacob Panjikkaran and it is stated in Ext.A1 that the vendor got the property from Paliyath. Ext.X1, copy of thandaper account No.10781 shows that the property was registered in the name of the vendor (Jacob Panjikkaran). First appellate court also referred to Exts.C2 and C2(a) to show that property of appellant is comprised in survey No.204/7 while the suit property is comprised in survey No.204/6-2. Referring to Ext.C1(a) it is held that the suit property is properly identified and in the circumstances, possession claimed by the original plaintiff and following him, respondents should stand.

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Finding regarding possession entered by the first appellate court is based on the evidence and it involves no substantial question of law. I must also notice that first appellate court has found that finding entered by the trial court on title cannot be legally sustained which means that the finding of trial court as to title does not stand and further that relief granted by the first appellate court is only based on possession claimed by the original plaintiff and following him, the respondents and found in their favour.

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RSA No.378/2012

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In that view of the matter, no substantial question of law is

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involved requiring admission of the Second 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

Ponnappan v. P.J. Thomas (Died)

Case brief

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Ponnappan v. P.J. Thomas (Died)

Case brief

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