Second appeal dismissed against a decree granting permanent injunction on property possession grounds. Court held no substantial question of law arose and refused to examine title matters raised afresh, leaving title for a separate suit.
The proviso that the question of title is left open for a properly instituted suit was included.
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 N.K.BALAKRISHNAN
MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934
RSA.No. 655 of 2010 ( )
AGAINST THE JUDGMENT IN AS.124/2004 of I ADDL.SUB COURT,TRIVANDRUM AGAINST THE JUDGMENT IN OS.1825/2000 of PRL.MUNSIFF COURTTRIVANDRUM
APPELLANT(S)/APPELLANT/DEFENDANT:
VIJAYA KUMAR, AGED 52 YEARS S/O GOPALAN, RESIDING AT KATTIL PUTHEN VEEDU CHENCHERI MURI, MANNANTHALA, ULLOOR VILLAGE THIRUVANANTHAPURAM.
BY ADV. SRI.ANCHAL C.VIJAYAN
RESPONDENT(S)/PLAINTIFF:
GANGADHARAN, S/O. CHINNASWAMY AGED 79 YEARS, RESIDING AT VAZHIYARIKATHU VEEDU VAYALARIKATHU MURI, ULLOOR VILLAGE THIRUVANANTHAPURAM.
BY ADV. SRI.R.ANILKUMAR AND ADV. SMT. ARSHA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
N.K.BALAKRISHNAN, J.
................................................................. R.S.A. 655 of 2010
Dated: 18-02-2013
JUDGMENT
The defendant is the appellant. The suit was for a permanent prohibitory injunction. The trial Court decreed the suit. Appeal filed by the defendant was dismissed.
R.S.A. 655 of 2010. -:2:-
mutation in respect of the plaint schedule property and that he was also paying basic tax in respect of the same. Ext.A2 is the tax receipt dated 13-12-1999. It was stated that the plaint schedule property along with the remaining extent in that property was outstanding on mortgage right and that the plaintiff has obtained the release of the mortgage right as per Ext. A3 release deed dated 11-12-1995. It was also contended that the plaintiff had applied for obtaining permit and license for construction of a residential building in that property and same was granted by the Corporation of Thiruvananthapuram as evidenced by Ext.A8 and pursuant thereto a building was also constructed in the said property.
R.S.A. 655 of 2010.
-:3:-
after re-appraisal of the evidence found that the view taken by the court below is correct and hence the appeal was dismissed.
R.S.A. 655 of 2010. -:4:-
Lakshmanan, one of the sharers mentioned in Ext. A1 partition deed had filed a suit as O.S. 9 of 1960 before the Munsiff Court, Thiruvananthapuram for redemption of mortgage and that suit was decreed in favour of Lakshmanan. It was stated that as per a gift deed dated 8-11-1961 Lakshmanan had ifted the properties covered by Ext. A1 partition deed in favour of one Vasantha Kumari. Since what was stated to have been obtained by Lakshmanan can only be the equity of redemption that will not affect the title and possession of the plaint schedule property, the respondent contends. Any way, it is not necessary to probe deep into those aspects since it is not a suit on title. The courts below found that the plaint schedule property is item No. 2 of the F schedule to Ext. A1 partition deed and that the plaintiff had obtained plan and license for constructing the building and pursuant thereto the building was constructed and it is in the direct possession of the plaintiff. If the defendant has got better title it is for him to pursue his remedy available under law.
R.S.A. 655 of 2010. -:5:-
learned counsel for the appellant is that there is difference in the patta number and that the receipt produced by the plaintiff does not pertin to the plaint schedule property. One contention that was vehemently advanced before the Lower Appellate Court was that Sarasamma who was stated to have executed the deed releasing the mortgage right in favour of the plaintiff was incompetent to execute any such document. But it was contended by the plaintiff that she was the daughter born to Lakshmanan in the first marriage and that she was well competent to execute the document. It was also pointed out by the Courts below that though it was contended by the defendant that father of Vasantha Kumari (who executed Executed Ext. B1 document) had obtained right as per the decree and judgment in OS. 9/1960 that decree and judgment were not produced before the Court to find whether it pertains to the plaint schedule property or as to what is the effect of decree and judgment in that case.
R.S.A. 655 of 2010.
-:6:-
time before this Court. As I have already pointed out the suit was only for an injunction to restrain the appellant from interfering with the plaintiff's possession. The courts below found that the plaintiff was in possession of the property . It is a finding on facts. I find no reason to entertain this Second Appeal. No substantial question of law is involved in this case.
In the result, this Second Appeal is dismissed. It is made clear that the question of title is left open to be considered in a properly instituted suit, if so instituted.
Dated this the 18th day of February, 2013.
Sd/N.K.BALAKRISHNAN, JUDGE
ani/
/true copy/
P.S. to Judge
3 issues framed by the court
Whether the Second Appeal should be entertained when new contentions regarding mortgage redemption were raised for the first time which were not heard by the trial court.
Whether the lower courts' finding that the plaintiff was in possession of the property based on construction and license creates a triable question of law.
Whether the question of title in a suit for permanent injunction should be examined by this appellate court.
1 provisions across 1 enactments
Vijaya Kumar
Gangadharan
N.K. Balakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
