Dismissed

Nadakkal Chandran v. Mandeyan Yesoda

Kerala HC9 Apr 2012RSA/463/2012

Case brief

AI extract

What is this about?

The appellant challenged the dismissal of a suit for prohibitory injunction regarding a shoproom. The court held that the appellant had no title or possession after 27.01.2001, when possession was delivered to a prior decree-holder and subsequently assigned to the respondent. The second appeal was dismissed with no substantial question of law.

What did the court decide?

The second appeal and all pending interlocutory applications stand dismissed.

Nadakkal Chandran Vs Mandeyan Yesoda — Landlord and Tenant | 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 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934

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RSA.No. 463 of 2012 ()

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AS.136/2008 of PRINCIPAL SUB COURT,THALASSERY OS.562/2001 of ADDL.MUNSIFF COURT, KANNUR

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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NADAKKAL CHANDRAN

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S/O. LATE P.KUNHAMBU, AGED 65 YEARS, NADAKKAV HOUSE, CHINA CLAY ROAD, POST MOTTAMMAL KANNAPURAM AMSOM DESOM, KANNURP-14.

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BY ADVS.SRI.R.SREEHARI

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SRI.K.RAJESH SUKUMARAN

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RESPONDENT(S)//RESPONDENTS/DEFENDANTS:

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MANDEYAN YESHODA

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D/O. LATE P.KANNAN, AGED 62 YEARS, MANDEYAN HOUSE NEAR MADAI CHINA CLAY, MADAI AMSOM DESOM, KANNUR PIN-670304.

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MANDEYAN VINOD

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S/O. CHANDRAN, AGED 42 YEARS, MANDEYAN HOUSE NEAR MADAI CHINA CLAY, MADAI AMSOM DESOM, KANNUR PIN-670304.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-04-2012, 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.463 of 2012

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Dated this the 9^th day of April, 2012.

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JUDGMENT

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Plaintiff in O.S.No.562 of 2001 of the court of learned Additional Munsiff, Kannur sued the respondents, his wife and son for a decree for prohibitory injunction claiming that he is in possession of the shoproom described in the plaint schedule and that respondents are attempting to trespass into the said shoproom. He claimed that he is engaged in stationary business in the said shoproom. He produced Exts.A1 and A2, profession tax receipt dated 27.12.1995 and building tax receipt dated 09.02.2001 in support of his claim of possession.

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2^nd respondent did not contest the suit. 1^st respondent contended that appellant has no title or possession of the shoproom. She claimed that appellant had executed an agreement for sale of the shoproom in favour of one Balakrishnan who filed O.S.No.129 of 1998 and obtained a decree for specific performance of the said agreement for sale. As per that decree, the court executed sale deed in favour of the said Balakrishnan concerning the shoproom and the land where it is situated. The said Balakrishnan filed E.P.No.392 of 1999 and got delivery of possession on 27.01.2001. Ext.B1 is the copy of delivery report dated 29.01.2001. From the said Balakrishnan 1^st respondent purchased the shoproom and the land as per Ext.B2, assignment

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RSA No.463/2012 2

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deed No.510 of 2001 dated 24.02.2001. On 03.09.2001 appellant trespassed into the said shoproom with a malafide intention to start business in the said room. 1^st respondent preferred a complaint to the Police. 1^st respondent put a new lock to the shoproom. It is thereafter that appellant filed the suit for injunction with an application for temporary injunction against the respondents. She produced Ext.B3, receipt dated 28.06.2001 for payment of land revenue and Ext.B4, receipt dated 14.03.2001 for payment of building tax.

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Trial court on a consideration of the evidence concluded that appellant has no right over the building and that at any rate, he has no possession of the building after 27.01.2001 (on which day as revealed by Ext.B1, the shoproom was delivered to Balakrishnan by the Amin appointed by the executing court in E.P.No.392 of 1999). The suit ended in a dismissal. Appellant challenged that judgment and decree in the Sub Court, Thalassery in A.S.No.136 of 2008. The appeal was dismissed. Hence this Second Appeal.

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Learned counsel for appellant contended that finding of the courts below that appellant has no possession of the shoproom from 27.01.2001 is patently illegal since in paragraph 6 of the written statement, 1^st respondent admitted that appellant was in possession of the shoproom on 03.09.2001. It is also contended that since the suit is merely for injunction, courts below ought to have decided only possession on the date of suit.

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RSA No.463/2012

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The suit was filed on 11.09.2001. I have gone through a copy of the written statement filed by 1^st respondent. In paragraph 6, after referring to the delivery of possession to Balakrishnan on 27.01.2001, sale deed executed by the said Balakrishnan in favour of the 1^st respondent (Ext.B2, dated 24.02.2001) and her getting possession and ownership of the shoproom, it is stated that on 03.09.2001 appellant, with malafide intention 'trespassed' into the shoproom which necessitated 1^st respondent filing a complaint to the Police. It is further stated in paragraph 6 that in the above circumstances, 1^st respondent put a new lock to the shoproom. In otherwords, what is revealed from the averments in paragraph 6 of the written statement is only that there was some interference with the possession of the 1^st respondent over the shoproom on 03.09.2001 which she successfully resisted by putting a new lock. I am unable to accept the contention that 1^st respondent admitted possession of appellant over shoproom on 03.09.2001.

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The documents which appellant produced to show his possession are Exts.A1 and A2 both of which are prior to Ext.B2, assignment deed No.510 of 2001 dated 24.02.2001 in favour of the 1^st respondent. Ext.B1 shows that appellant was evicted from the shoproom on 29.01.2001, Balakrishnan got vacant possession of the shoproom and he, by Ext.B2, assignment deed dated 24.02.2001 assigned his title and possession to the 1^st respondent. Possession of 1^st respondent is further supported by Exts.B3 series and Ext.B4.

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RSA No.463/2012

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Courts below in the circumstances were right in holding that appellant is not entitled to any relief prayed for.

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Having heard learned counsel and gone through the judgments under challenge I am not inclined to think that there is any substantial question of law involved in the matter requiring admission of this 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

Nadakkal Chandran v. Mandeyan Yesoda

Case brief

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Nadakkal Chandran v. Mandeyan Yesoda

Case brief

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