Dismissed

Jaseentha v. Annie

Kerala HC11 Apr 2012RSA/44/2012

Case brief

AI extract

What is this about?

In a regular second appeal against the dismissal of a suit for mandatory and prohibitory injunctions regarding property boundary and roof removal, the appellate court affirmed the lower courts' findings that the appellant failed to prove title over the disputed wall and dismissed the appeal.

What did the court decide?

The regular second appeal was dismissed; all pending interlocutory applications were dismissed.

Jaseentha Vs Annie — 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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WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934

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RSA.No. 44 of 2012 ()

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AS.127/2009 of DISTRICT COURT,THRISSUR

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OS.555/2006 of MUNSIFF COURT,WADAKKANCHERRY

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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JASEENTHA

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AGED 45 YEARS, W/O. PUTHOOKKARA FRANCIS PULLANIKKAD DESOM, WADAKKANCHERY VILLAGE THALAPPILLY TALUK.

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BY ADV. SRI.C.CHANDRASEKHARAN

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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ANNIE

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AGED ABOUT 51 YEARS, W/O. KOLADIPARAMBIL ABRAHAM PULLANIKKAD DESOM, WADAKKANCHERI VILLAGE

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THALAPPILLY TALUK - 680 001.

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ABRAHAM,

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AGED ABOUT 54 YEARS, KOLADIPARAMBIL HOUSE PULLANIKKAD DESOM, WADAKKANCHERI VILLAGE THALAPPILLY TALUK - 680 001.

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BY ADV. SRI.K.B. MOHANDAS

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BY ADV. SRI. LELLULAL T.G.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-04-2012, 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.44 of 2012

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==================================== Dated this the 11^th day of April, 2012

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J U D G M E N T

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Plaintiff in O.S. No.555 of 2006 of the court of learned Munsiff, Wadakkancherry challenge concurrent finding and verdict entered by the courts below in a suit for prohibitory injunction.

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Plaint A schedule is two cents allegedly belonging to the appellant as per Ext.A1, assignment deed No.1172 of 1992. Plaint B schedule is a Wall towards west of plaint A schedule and described as having thickness of 9” and length of 17'. According to the appellant, plaint B schedule is part of plaint A schedule covered by Ext.A1. A portion of the roof of building of respondents who own property on the west rest on the said Wall (plaint B schedule). There was an earlier suit filed by the first respondent as O.S. No.166 of 1994 against the appellant claiming right over the western wall of the house of the appellant. That ended in a compromise decree (Ext.A4). Prayer of the appellant in the present suit is for a mandatory injunction to direct respondents to remove that part of the roof resting on the Wall and for prohibitory injunction. Respondents contended that appellant has

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R.S.A. No.44 of 2012

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-: 2 :-

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no title or possession of plaint B schedule which formed part of property belonging to the first respondent.

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Appellant proved Exts.A1 to A15. Respondents proved Exts.B1 to B5. Exhibits C1 to C1(c) are the reports and rough sketches prepared by the Advocate Commissioner. Trial court held that it is not shown that plaint B schedule forms part of plaint A schedule and that appellant has not taken steps to get the property covered by Ext.A1 measured to show that plaint B schedule is part of plaint A schedule. Consequently the suit was dismissed. That finding was confirmed by the first appellate court. Hence this second appeal.

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Learned counsel for appellant submitted that evidence on record is sufficient to show that plaint B schedule is part of plaint A schedule. Alternatively it is prayed that appellant may be given an opportunity to take out a survey commission.

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It is seen from the judgment of learned Munsiff that both sides produced certified copy of depositions of the witnesses examined in O.S. No.166 of 1994 or the execution proceedings in that case. It is not clear how the learned Munsiff could allow the certified copy of the depositions to be marked in evidence unless

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R.S.A. No.44 of 2012

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the person who gave evidence was not alive or his presence could not have been made available in the manner stated in Section 33 of the Indian Evidence Act.

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Whatever that be, fact remained that title and possession of appellant over plaint B schedule was disputed by the respondents in the written statement itself but no steps were taken to take out a survey commission to identify plaint A and B schedules and show that both are covered by Ext.A1. Exts.C1 to C1(a) are of no assistance since they are only report and rough sketch prepared by the Advocate Commissioner which is not helpful to decide the controversy regarding title. This Court in

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K.B. Ambujakshy Amma & Another v. Gopi &

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Another (1989 [2] KLJ 705) has held that in a suit on title a properly surveyed plan of the property is a must since title cannot be decided by surmises and conjectures. In the present case there is a prayer for mandatory injunction. Hence it is for the appellant to show that there is an enforceable duty on the respondent to remove that part of the roof allegedly resting on plaint B schedule. That enforceable duty is cast on the respondent only if appellant has title over plaint B schedule. Title claimed by the appellant is disputed. It is seen that though

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R.S.A. No.44 of 2012

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-: 4 :-

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certain copy of reports in O.S. No.166 of 1994 are produced, it is admitted by the learned counsel that no survey commission was taken out in that case also. Hence the trial court is correct in holding that title claimed by the appellant over plaint B schedule is not established.

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Now the question is whether at this stage the request for remand could be entertained? At least in the first appellate court appellant could have filed an application for survey commission which also was not done. It is not as if the stage of second appeal is to remedy all the mistakes and omissions parties have done. I must bear in mind the scope of Section 100 of the Code of Civil Procedure where this Court is required to consider whether there is any substantial question of law is involved or not. On hearing learned counsel and going through the judgments under challenge, I find none.

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Regular 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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vsv

Jaseentha v. Annie

Case brief

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Jaseentha v. Annie

Case brief

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