This regular second appeal challenges findings that the plaint schedule property description was incorrect due to inclusion of the respondent's access strip. The single judge held the injunction was mischievous and sans bona fides, dismissing the appeal.
All pending Interlocutory Applications will stand closed.
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 K.HARILAL
THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938
RSA.No. 1022 of 2016 ()
AGAINST THE JUDGMENT & DECREE IN AS 36/2010 of SUB COURT, CHERTHALA DATED 15-06-2016
AGAINST THE JUDGMENT & DECREE IN OS 439/2004 of PRL.MUNSIFF COURT, CHERTHALA DATED 21-11-2009
APPELLANT(S)/APPELLANT/PLAINTIFF:
ASHIK IBRAHIM S/O. ABDUL KAREEM MUHAMMED IBRAHIM, YAS MANZIL, VAZHICHERRY WARD, ALAPPUZHA WEST VILLAGE.
BY ADVS.SRI.LAL K.JOSEPH
SRI. ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA SRI.JOSEPH KURIAN VALLAMATTAM SRI.M.B.SOORI
RESPONDENT(S)/RESPONDENT/DEFENDANT:
RAJAPPAN @ REGHU S/O. AYYAN VELIYIL, AGED 47, THYCATTUSSERY MURI, THYCATTUSSERY VILLAGE-688 582.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB
K.HARILAL, J.
R.S.A. No.1022 of 2016
Dated this the 13th day of October, 2016
JUDGMENT
~ ~ ~ ~ ~
The appellant is the plaintiff who had
concurrently suffered failure in trial court as well as lower appellate court. According to the plaintiff, the plaint schedule property belongs to him as per Ext.A1 sale
deed and he is in possession and enjoyment of the property. The defendant has neither right nor possession over the plaint schedule property. The defendant is residing in the property situated on the southern side of the plaint schedule property. Now he is trying to trespass into the plaint schedule property and to construct a shed in it. This is the apprehension expressed in the simple suit for prohibitory injunction.
RSA.1022/16 :2:
of right or possession over the property covered by Ext.B2 and stands included in the plaint schedule as plaintiff's property. The plaintiff has denied the apprehension expressed in the plaint. According to the defendant, he has purchased the property covered by Ext.B2 for the egress and ingress to his house. Thus, the defendant's property is situated in between the plaintiff's properties. After analysing the evidence on record, the court below concurrently arrived at a finding that the boundaries of the plaint schedule property is incorrect and the defendant's property is also included in the plaint schedule property so as to grab the property, covered by Ext.B2 of the defendant, which is being used for the egress and ingress to the defendant's house. The legality and propriety of the aforesaid finding are impugned in this Regular Second Appeal.
RSA.1022/16 :3:
were purchased by the plaintiff and the defendant from the same person and Ext.B1 is the earlier document and Ext.B2 is the subsequent document. In Ext.B1 document, the eastern boundary is stated as 200 Sq.links of property, which is in the possession of one Premanand, the predecessor of the plaintiff. As rightly observed by the court below, on an analysis of Exts.B1 and B2, it can be held that after leaving 200 Sq.links of property on the eastern side, the predecessor of both the plaintiff and the defendant has assigned Ext.B1 property to the plaintiff and subsequently assigned 200 Sq. links of property to the defendant. From the above analysis, it is clear that the western boundary of plaint A schedule property is the property of the defendant, i.e. 200 Sq.links of land covered by Ext.B2. But, in the plaint, the western boundary of the plaint schedule property is shown as immovable property of the plaintiff. Thus, the courts below are justified in finding that the description of the plaint schedule property is not correct.
RSA.1022/16 :4:
purchased by the defendant by way of Ext.B2 is a way giving access to the defendant's property and a house therein and it lies in between the plaintiff's properties covered by Exts.B1 and A1. Needless to say, prohibitory injunction with respect to property which allegedly extends upto his property on the western side is intended to claim right and possession over the strip of land covered by Ext.B2 sale deed, in favour of the defendant. Where the description of the property is incorrect, the plaintiff who seeks prohibitory injunction with respect to that property is not entitled to get it. In other words, the apprehension expressed by the plaintiff is mischievous as well as unfounded and sans bona fides. I do not find any kind of illegality or impropriety in the impugned judgments under challenge. Hence this Appeal is dismissed.
All pending Interlocutory Applications will stand closed.
Sd/K.HARILAL, Judge.
okb
3 issues framed by the court
Whether the lower courts erred in finding the plaint schedule property description incorrect based on sale deed analysis.
Whether the apprehension of trespass in the suit was mischievous, unfounded, and sans bona fides.
Whether the appeal against the finding disproving the plaint description and discharge injunction should succeed.
Ashik Ibrahim S/o. Abdul Kareem Muhammed Ibrahim
Rajappan @ Reghu S/o. Ayyan Veliyil
K.Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
