In this second appeal concerning a suit for a prohibitory injunction regarding property possession the high court dismissed the appeal holding that the findings of fact regarding the respondent's possession were supported by evidence and no substantial question of law arose.
The second appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934
RSA.No. 507 of 2004 ( )
AS.31/1994 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
OS.211/1991 of MUSNIFF'S COURT,ADOOR
APPELLANT/APPELLANT/DEFENDANT::
DAMODARA KARNAVAR,
S/O. LATE KOCHUKUNJU KURUP, VALILTHEKKETHIL HOUSE, THOTTAKKONAM P.O., MUDIYOORKONAM, PANDALAM, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.P.VIJAYAKUMAR
RESPONDENT(S)/RESPONDENT/PLAINTIFF::
SIVARAMA KARNAVAR,
S/O. LATE KOCHUKUNJU KURUP, NELLIPPALLIL HOUSE, THOTTAKKONAM P.O., MUDIYOORKONAM, PANDALAM, PATHANAMTHITTA DISTRICT.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
THOMAS P. JOSEPH, J.
R.S.A. No. 507 of 2004
Dated this the 20th day of July, 2012
JUDGMENT
This appeal is brought by the defendant in O.S No.211 of 1991 of Munsiff's Court, Adoor. That is a suit filed by the respondent for a decree for prohibitory injunction against trespass, destroying the boundaries and interfering with the possession claimed by the respondent in the suit property, described as 33 ½ cents.
R.S.A. No. 507 of 2004 2
settlement between the appellant and the respondent. As per that settlement, the 31¾ cents alloted to Chellappa Karanavar as item No.4 of Ext.A1 and 1¾ cents (excluding the 30 cents assigned by respondent/plaintiff) from his 31 ¾ each, together making up 33 ½ cents was put in the possession of the respondent. Now, appellant is attempting to trespass.
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and first appellate courts held that the suit property is in the possession of the respondent. The learned counsel submits that neither Ext.A4 nor Exts.X1 to X3 mention that possession of the suit property was given to the respondent. The finding in Ext.B1 judgment in O.S No.167 of 1967 that appellant is in possession of the property has to stand until possession is recovered by the respondent in accordance with the due process of law. The learned counsel also argued that no reference could be made to Exts.C1 to C3 since it was an ex-parte commission without notice to the appellant and Exts.C1 to C3 were marked without examining the Advocate Commissioner.
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R.S.A. No. 507 of 2004
was given to the respondent.
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respondent. PW3 is the daughter of Chellappa Karanavar examined by the respondent. She also has supported the version of the respondent. Based on the above evidence and circumstances the trial court has held that the respondent got possession of the property otherwise than by execution of decree in O.S NO.167 of 1967 (ie., as per the settlement). That has been confirmed by the first appellate court.
The finding entered by the courts below on the possession of the respondent is one of fact. The finding of fact entered by the trial court and confirmed by the first appellate court could be interfered with by the High Court in second appeal only when the finding is perverse, is not supported by any evidence or is against the evidence. Even a mere erroneous finding of fact is not required to be interfered within second appeal. I am also to notice that first appellate court has left open the claim of title made by the appellant over the share of Chellappa Karanavar. In that view of the matter, I do not find any substantial question of law involved in this second appeal.
This second appeal is dismissed.
THOMAS P. JOSEPH, JUDGE.
mns
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2 issues framed by the court
Whether the finding of fact regarding possession by the respondent is perverse or unsupported by evidence.
Whether there is a substantial question of law involved in this second appeal.
Damodara Karnavar
Sivarama Karnavar
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
