This regular second appeal challenges the dismissal of a suit for reconciliation of property dispute. The Kerala High Court held that the lower courts correctly found the appellant failed to prove title over the disputed ridge and dismissed the appeal as it did not merit admission due to lack of substantive legal question.
The second appeal is 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
WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934
RSA.No. 704 of 2012 ()
AS.162/2005 of SUB COURT, OTTAPPALAM OS.69/1995 of MUNSIFF MAGISTRTE COURT,MANNARKAD
APPELLANT(S)/PLAINTIFF:
ABDURAHIMAN, AGED 65 YEARS, S/O.MOHAMMED HASSAN @ MAMMASSAN, KUNNUMMAL, GUDDAYUR, AGALI VILLAGE, MANNARKKAD TALUK.
BY ADVS.SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1. MUSTHAFA, S/O.ABDURAHIMAN, MAKKUZHI, GUDDAYUR, AGALI VILLAGE, MANNARKKAD TALUK, AGALI POST.678 581.
2. V.C.KHADER, S/O.ABDURAHIMAN, ANGATH HOUSE, MAKKUZHI, GUDDAYUR, AGALI POST, MANNARKKAD TALUK. PIN-678 581.
3. GOPALAKRISHNAN, S/O.KUNHITHODI THANKAPPAN,
MAKKUZHI, GUDDAYUR, AGALI POST, MANNARKKAD TALUK. PIN-678 581.
4. PADMANABHAN, S/O.KUNHITHODI THANKAPPAN, MAKKUZHI,
GUDDAYUR, AGALI POST, MANNARKKAD TALUK. PIN-678 581.
5. ABDUL KHADER, S/O.KUNHIMOIDU, KAITHAKKAD, PAVARATTI AMSOM, ARUTHAYUR DESOM, CHAVAKKAD TALUK,
PAVARATTI POST - PIN-680 507.
Kss
..2/-
..2....
RSA.NO.704/2012
6. HASEEFA, S/O.HAMSA, ARAKKAL KURUPPATH, PAVARATTI AMSOM, ARUTHAYUR DESOM, CHAVAKKAD TALUK,
PAVARATTI POST - PIN-680 507.
7. ABDUL MAJEED, S/O.KUNHUMOHAMMED, VALIYAKATH KORIYATH, RAYAMMARAKKAR HOUSE, ARUTHAYUR DESOM, CHAVAKKAD TALUK, PAVARATTI POST. PIN-680 507.
8. JAMEELA,
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
THOMAS P. JOSEPH, J.
====================== R.S.A. No. 704 of 2012
====================== Dated this the 20th day of June, 2012
JUDGMENT
Plaintiff in O.S. No.69 of 1995 of the court of learned Munsiff Magistrate, Mannarkkad is aggrieved by the dismissal of that suit as confirmed by the learned Sub Judge, Ottappalam in A.S. No. 162 of 2005.
R.S.A. No. 704 of 2012 -: 2 :-
belongs to the appellant and/or his wife. They stated that width of the ridge is only 1 - 1 ½ feet and that appellants has only a right to pass through the said ridge as others do. They also claimed that the ridge is necessary for preventing water flow into their property on the immediate west which is lying at a lower level. Contesting respondents would say that appellant has no right to take cattle through the ridge (plaint B schedule) since such an act would cause damage to the ridge and result in flow of water into their adjacent property. Respondents 3 and 4 contended that the ridge passes through the middle of their property and at that portion it has a width of about 3 feet.
R.S.A. No. 704 of 2012 -: 3 :-
In Ext.C1, the first report, Advocate Commissioner has given the width of plaint B schedule as 2 - 3 feet. There was then measurement of the properties with reference to the relevant documents. Exts. C3 to C6 are the reports and plan. In Ext. C5, width of the disputed ridge is given as 1 – 1.5 meters from the starting point (at the Panchayat road) upto a length of 55 meters. It is revealed from Exts. C3 to C6 that plaint B schedule passes through the property of several persons including those who are not parties to the suit and it has varying width at different points. In Ext.C5, the Advocate Commissioner has reported that the properties on the west of plaint B schedule are in the possession of the respondents. Exts. C2 to C4 and C6 say that plaint B schedule starts from the Panchayat road on the north, passes through the western side of property of the 4th respondent, then item No.1 of plaint A schedule, then along the property of Kunhumohammed and Pathummakutty, then along property of the wife of the appellant, then along item No.2 of plaint A schedule and then along the property of one Kumaran.
R.S.A. No. 704 of 2012 -: 4 :-
appellant and respondents 3 and 4 and they filed I.A. No.511 of 1996 reporting that settlement. Trial court has referred to I.A. No.511 of 1996 and has pointed out that respondents 3 and 4 were permitting the appellant to use a portion of plaint B schedule which indicated that appellant was not having title over the entire plaint B schedule property as he claimed. Trial court found that appellant failed to prove title over plaint B schedule as he claimed and hence he is not entitled to get the relief prayed for.
R.S.A. No. 704 of 2012 -: 5 :-
the said ridge for the reason that it would cause damage to the ridge. I must notice that in this suit, appellant was not trying to enforce his right of access if any, through plaint B schedule so that this court is required to go into that question in this appeal.
does not merit admission.
Hence the second appeal is dismissed.
sd/- THOMAS P. JOSEPH, JUDGE. //True copy//
P.A. To Judge
smv
3 issues framed by the court
Whether the trial and first appellate courts committed any infirmity in finding that the appellant failed to prove title over the disputed ridge.
Whether the appellant has a substantive right to enforce access or use of the disputed ridge.
Whether the second appeal merits admission in the absence of a substantive question of law.
ABDURAHIMAN
MUSTHAFA
V.C.KHADER
GOPALAKRISHNAN
PADMANABHAN
ABDUL KHADER
THOMAS P. JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
