Allowed

Chellamma v. P.C.G.M. Govt. U.P. School

Kerala HC13 Oct 2014SA/854/2001

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Kerala allowed an appeal challenging the lower appellate court's refusal to grant a permanent injunction due to lack of survey. The bench held that existing boundaries like mud walls sufficed to identify the property, making a fresh survey unnecessary for granting an effective decree.

What did the court decide?

Respondents 1 to 4 restrained by permanent prohibitory injunction from trespassing upon 1.50 acres and from demolishing existing boundaries; parties to suffer respective costs.

Chellamma Vs P.C.G.M. Govt. U.P. School — Property and Title | Kerala HC (2014)

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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 A.V.RAMAKRISHNA PILLAI

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MONDAY, THE 13TH DAY OF OCTOBER 2014/21ST ASWINA, 1936

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SA.No. 854 of 2001 ( )

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AGAINST THE DECREE & JUDGMENT IN AS NO.106/1995 OF ADDL. DISTRICT COURT, KOTTAYAM DATED 03.07.2001 AGAINST THE DECREE & JUDGMENT IN OS NO.320/92 ON THE FILES OF MUNSIFF'S COURT, KANJIRAPPALLY DATED 13.02.1995.

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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CHELLAMMA, W/O. KUMARAN, KUZHICKALPLAKKAL HOUSE, PAZHUMALA KARA, MUNDAKKAYAM VILLAGE.

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BY ADV. SRI.RAJEEV V.KURUP

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RESPONDENT(S)RESPONDENTS/DEFENDANTS:

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1. P.G. GOVINDA PILLA MEMORIAL GOVT. U. P. SCHOOL,

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PARENTS AND TEACHERS ASSOCIATION, PAZHUMALA KARA, MUNDAKKAYAM VILLAGE, REPRESENTED BY ITS PRESIDENT.

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2. PEETHAMBARAN, S/O. PARAMESWARAN,

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PULIMTHARA HOUSE, PAZHUMALA KARA,

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MUNDAKKAYAM VILLAGE, PRESIDENT,

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P.G.G.M GOVT U. P. SCHOOL P.T.A MUNDAKKAYAM.

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3. JOHN, S/O. DANIEL @ KUNJU, KUNNAKULATH HOUSE,

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PAZHUTHADAM KARA, MUNDAKKAYAM VILLAGE.

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4. HEAD MASTER, P.G.G.M GOVT. U.P. SCHOOL,

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PAZHUMALA KARA, MUNDAKKAYAM.

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R4 SENIOR GOVERNMENT PLEADER SRI. E. M. ABDUL KHADIR

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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KRJ

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A.V.RAMAKRISHNA PILLAI, J.

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= = = = = = = = = = = = = = = = = S.A No.854 of 2001

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= = = = = = = = = = = = = = = = = = Dated this the 13^th day of October, 2014

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JUDGMENT

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The plaintiff is the appellant.

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He filed the original suit against the respondents for permanent prohibitory injunction restraining the respondents from trespassing upon the plaint schedule property and committing waste therein and also from altering the existing boundaries of the property.

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The appellant claimed that plaint item having an extent

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of 1.50 acres of land with well demarcated on all four sides is in

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the absolute possession and enjoyment of the plaintiff. The property is bounded on the east by the property belonging to one P.G.G.M Government U.P School. Somewhere in the year 1980, there was a proposal for upgrading the U.P School. For the purpose of up-gradation, the office bearers of the Parent Teachers' Association (first respondent) approached the

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-:2:-

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SA.854/2001

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appellant requesting relinquishment of her right over a small portion of the land from the plaint schedule property. She agreed for that and an application had been given to the Government in the year 1980. Though the school was upgraded in the year 1982, no action was taken by the Government on the application for relinquishment of her right over the plaint schedule property and thus, she continued the possession and enjoyment of the property.

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The appellant alleged that in the year 1992, the respondents along with some local people tried to encroach upon the plaint schedule property, which necessitated the filing of the suit.

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The respondents, who resisted the suit, contended that 20 cents of property belonging to the plaintiff was given to the school for the purpose of up-gradation and the plaintiff has no right to claim possession over the said property. Thus, they prayed for dismissal of the suit.

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SA.854/2001

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-:3:-

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The trial court after raising proper issues, permitted the

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parties to go for trial. PWs. 1 and 2 and DWs.1 to 5 were examined. Exts.A1 to A5, B1 to B3 and Exts.C1 and C2 were marked. The trial court on appreciation of the evidence placed before it, dismissed the suit finding that the possession of a portion of the plaint item has been handed over by the appellant to the first respondent.

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The appellant took the matter in appeal before the lower Appellate Court which upheld the contention of the appellant that the property has not been given possession to the first respondent. However, the lower Appellate Court refused to grant a decree for injunction on the ground that the property has not been measured so as to enable the court to give an effective decree. It is that part of the judgment and decree that is being challenged in the second appeal.

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I have heard the learned counsel for the appellant and the learned Senior Government Pleader in the matter. I have also perused the records.

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SA.854/2001

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-:4:-

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The learned counsel for the appellant inviting my attention to Ext.C2 sketch prepared by the Commissioner deputed by the trial court submitted that the plaint schedule property as well as the property of the school is well demarcated by mud wall (kayyala). However, on the north eastern portion of the plaint schedule property there is a rocky area where no boundary wall could be constructed. This was pointed out as a circumstance by the learned Appellate Judge to hold that there was no clear demarcation of the property at that area. But on going through the evidence now placed on record, it can be seen that the property is still identifiable on the basis of the existing boundaries and, therefore, there cannot be any difficulty in granting an injunction.

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It is true that injunction is the remedy, the violation of which would entail penal consequences and, therefore, it is the bounden duty of the plaintiff to specify the area beyond which the defendant shall not enter. The materials now placed on record would indicate that even an outsider can very well identify

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SA.854/2001

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-:5:-

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the property on the basis of the existing boundaries and, therefore, the reasoning adopted by the Appellate Court that the appellant ought to have got the properties measured by a competent surveyor, does not hold good.

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On a consideration of the entire materials now placed on record, this Court is of the definite view that the appellant is entitled to a decree for injunction as prayed for. Therefore, the appeal is allowed.

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Respondents 1 to 4 are restrained by permanent prohibitory injunction from trespassing upon the plaint schedule properties having an extent of 1.50 acres and from demolishing the existing boundaries of the plaint schedule property. Parties shall suffer their respective costs.

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Sd/-

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A.V.RAMAKRISHNA PILLAI JUDGE

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krj

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/True Copy/

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P.A to Judge

Chellamma v. P.C.G.M. Govt. U.P. School

Case brief

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Chellamma v. P.C.G.M. Govt. U.P. School

Case brief

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