Dismissed

Puthiya Purayil Narayani v. Kunhimangalavan Cheriya Kunhiraman

Kerala HC20 Jan 2016RSA/1133/2011

Case brief

AI extract

What is this about?

This second appeal, filed by a plaintiff in an injunction suit regarding property possession, was dismissed by the High Court of Kerala as questions of fact, leaving the plaintiff free to institute a fresh suit for title or boundary.

What did the court decide?

The second appeal is dismissed. The plaintiff is left free to institute a fresh suit for recovery of possession or fixation of boundaries.

Puthiya Purayil Narayani Vs Kunhimangalavan Cheriya… — Property and Title | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937

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RSA.No. 1133 of 2011

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AGAINST THE JUDGMENT AND DECREE IN A.S.NO.114/2004 OF SUB COURT, PAYYANNUR

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AGAINST THE JUDGMENT AND DECREE IN O.S.NO.134/2000 OF MUNSIFF COURT, THALIPARAMBA

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APPELLANT(S)/APPELLANT/PLAINTIFF :

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PUTHIYA PURAYIL NARAYANI, AGED 36 , D/O.CHAVINIYAN, AGRICULTURIST, RESIDING AT MORAZHA AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR.

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BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS :

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1. KUNHIMANGALAVAN CHERIYA KUNHIRAMAN, S/O.PARU, AGED 69, RESIDING AT KARAKKODIYIL, PANNIYOOR AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR- 670 001.

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2. CHENGANAR KUMARAN, AGED 34,

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S/O.CHERIYA KUNHIRAMAN, RESIDING AT KARAKKODY, PANNIYOOR AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR- 670 001.

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BY ADVS. SRI.BLAZE K.JOSE

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SMT.B.BINDU

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SMT.N.DEEPA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = =

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R.S.A.No.1133 of 2011.

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= = = = = = = = = = = =

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Dated this the 20^th day of January, 2016.

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J U D G M E N T

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The plaintiff in a suit for injunction is the

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appellant in this second appeal.

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The suit property originally scheduled was a property measuring 50 cents. It was alleged by the plaintiff that the defendants who are holding the properties on the east and south of the suit property are attempting to trespass into the suit property. The Advocate Commissioner deputed in the suit at the instance of the plaintiff has filed Ext.C1 report and Ext.C2 plan. In Ext.C1 report, the Advocate Commissioner has stated that the extent of the suit property is 61.70 cents. On the strength of Ext.C1 report, the plaint was amended and the extent of the suit property was altered to 61.70 cents. The trial court though found that the plaintiff owns the property on the

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RSA.No.1133/2011.

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north and west of the property of the defendants, it dismissed the suit holding that the plaintiff could not establish possession over the entire 61.70 cents of property. The said decision of the trial court was confirmed in appeal. The plaintiff, who is aggrieved by the concurrent decisions against her, has come up in this second appeal.

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Heard the learned counsel for the appellant.

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As noted above, the suit is one for injunction.

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In a suit of this nature, the only point to be considered by

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the court is as to whether the plaintiff has established possession over the suit property. The courts below found that the plaintiff could not establish possession over the entire 61.70 cents of property scheduled in the plaint. Since the issue adjudicated upon in the present suit on the possession of the property being a pure question of fact, the finding thereon cannot be challenged in a second appeal filed under Section 100 of the Code of Civil Procedure. In the said view of the matter, I do not find any merit in the

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RSA.No.1133/2011.

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second appeal and the same is accordingly dismissed. However, it is made clear that the judgment in the suit will not preclude the plaintiff from instituting a fresh suit based on title for recovery of possession of any portion of the suit property or for fixation of boundary separating the suit property from the property of the defendants.

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Sd/- P.B.SURESH KUMAR,

JUDGE.

Kvs/-

// true copy //

PA TO JUDGE.

Puthiya Purayil Narayani v. Kunhimangalavan Cheriya Kunhiraman

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Puthiya Purayil Narayani v. Kunhimangalavan Cheriya Kunhiraman

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