In this Regular Second Appeal, the High Court of Kerala upheld the dismissal of the suit. The Court found that the appellant failed to prove the identity, title, and exclusive possession of the property for which an injunction was sought, as no evidence established a proper link between the property and prior documents.
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
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
RSA.NO. 1146 OF 2016 (C)
AGAINST THE JUDGMENT AND DECREE DATED 28-05-2016 IN A.S. NO. 79 OF 2008 OF THE SUB COURT, OTTAPPALAM
AGAINST THE JUDGMENT AND DECREE DATED 08-04-2008 IN O.S. NO. 19 OF 2002 OF THE MUNSIFF-MAGISTRATE COURT,PATTAMBI
APPELLANT/SUPPLEMENTAL 2ND APPELLANT/LR OF PLAINTIFF:
PARAMESWARAN,
AGED 63 YEARS, S/O. LATE RAMAN NAIR,
PUTHANVEETTIL-VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.R.SREEHARI SRI.SACHIN VYAS
RESPONDENTS/RESPONDENTS 1 & 2 AND SUPPLEMENTAL RESPONDENTS 3 TO 9/ DEFENDANTS 1 & 2 AND LRS OF PLAINTIFFS
1. VAZHAKKAVU AMBALA COMMITTEE REPRESENTED BY ITS PRESIDENT PARAMESWARAN NAIR, AGED 75 YEARS, S/O. MALU AMMA, KOORTHA VALAPPIL, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
2. VAZHAKKAVU AMBALA COMMITTEE REPRESENTED BY ITS SECRETARY PARAMESWARAN,AGED 60 YEARS, S/O. SREEDHARA MENON, MANHAPRA KALATHIL, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
3. SREEDHARAN, AGED 64 YEARS, S/O. LATE RAMAN NAIR, VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
4. VASANTHA, AGED 58 YEARS, D/O. LATE RAMAN NAIR, VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
5. RAJAMANI, AGED 56 YEARS, D/O. LATE RAMAN NAIR, VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
RSA.NO. 1146 OF 2016 (C)
6. SREELATHA, AGED 54 YEARS, D/O. LATE RAMAN NAIR.
7. MOHANDAS, AGED 53 YEARS, S/O. LATE RAMAN NAIR, VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
8. GOPINATHAN, AGED 51 YEARS, S/O. LATE RAMAN NAIR, VETTATHU HOUSE, AYISHA NAGAR COLONY, KALLUVAYAL ROAD, MAITHANIKUNNU POST, SOUTH BATHERY, WAYANAD DISTRICT PIN: 673 592
9. LASHMIKUTTY AMMA, AGED 84 YEARS, W/O.LATE RAMAN NAIR, VETTATHU HOUSE, KUDALLUR AMSOM DESOM AND POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. PIN 679 554.
R1&R2 BY ADVS. SRI.T.SETHUMADHAVAN (SENIOR) (CAVEATOR) SRI. KODOTH PUSHPARAJAN (CAVEATOR) SRI. K. JAYESH MOHANKUMAR (CAVEATOR) SRI. VANDANA MENON (CAVEATOR) SMT. N. DEEPA (CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
K. HARILAL, J.
= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 1146 of 2016
- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2016
J U D G M E N T
The appellant is one of the legal heirs of deceased plaintiff in the Original Suit No.19 of
2002 of the Munsiff-Magistrate Court, Pattambi. The said Suit was one for injunction based on title and possession of the plaint schedule property, filed by one 'Raman Nair', father of the appellant herein, against the respondent Nos.1 and 2.
demarcated boundaries on the four sides and the eastern property belongs to the temple, managed by the defendants and the same is situated 2 feet higher level than the plaint schedule property. When the plaintiff attempted to level the property, the
R.S.A. No. 1146 of 2016
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defendants obstructed the same and threatened that
they will not allow the plaintiff to start any agricultural operation, on the southern side of the plaint schedule property and they will annex the said portion of the plaint schedule property with the property in their possession. Hence, the suit was filed for simple injunction, on the aforesaid cause of action, against the defendant.
contending that the plaintiff has neither title nor possession over the said property and the property is not an identifiable one, as per the description
given in the plaint. It is also contended that the boundaries are not proper. It was further contended that the plaintiff has neither title nor possession over property comprised in Sy. No.229/2, which belongs to the temple.
R.S.A. No. 1146 of 2016
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parties adduced evidence, consisting of the oral testimonies of PW1 and DW1, Exts.A1 to A22, Exts.B1 to B3 and Exts.C1 to C3. After appreciating the evidence on record, the trial court dismissed the suit on a finding that the plaint schedule property,
for which the injunction was sought for is not an identifiable one and the plaintiff has failed to prove the title and possession over the said property. In Appeal, the appellate court also concurred with the aforesaid finding and dismissed the suit. Thus, the legality and correctness of the concurrent findings are challenged in this Regular Second Appeal.
and the learned counsel for the respondents.
that the plaint schedule property belongs to him, as
per the compromise decree in O.S. No.375 of 1960 of
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Ponnani Munsiff Court and the property was set apart
to the thavazhi of the plaintiff. Subsequently, in the year 1994, as per partition deed No.1818, the property was set apart to the plaintiff and thereafter, he is in possession and enjoyment of the property and the property is lying within well defined boundaries on all the four sides.
R.S.A. No. 1146 of 2016
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Unless the identity of the property is proved beyond
doubt, the plaintiff is not entitled to get an injunction as prayed for.
property than what mentioned in item No.1 in Exts.A21 and 22. But, the property comprised in
R.S.A. No. 1146 of 2016
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Sy.No.229/2 is not included in Ext.22. PW1 himself admitted that he is not sure about the exact extent and description and the boundary of the property. In other words, it shows that the plaintiff himself is not sure about the proper identity of the plaint schedule property.
report that neither the plaintiff nor the defendant has produced documents to measure the property and he could not measure the property on the basis of the title deeds. It is well discernible from the evidence on record that the plaintiff has miserably failed to prove the identity of the property, for which injunction was sought for. So also, he failed to prove exclusive possession of the plaint schedule property. Needless to say, the cause of action alleged in the plaint is unfounded.
R.S.A. No. 1146 of 2016
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justified in rejecting the prayer for prohibitory injunction against the defendants. In the absence of any kind of illegality or perversity in the appreciation of evidence, I do not find any reason to interfere with concurrent findings of the courts below. No question of law arises for consideration.
This Regular Second Appeal is dismissed accordingly.
Sd/-
K. HARILAL,
JUDGE
DST
//True copy//
P.A. To Judge
2 issues framed by the court
Whether the appellant is entitled to an injunction when he fails to prove the identity, title, and possession of the plaint schedule property.
Whether the lower courts were justified in dismissing the suit for failure of the plaintiff to discharge the burden of proof regarding the property's identity.
PARAMESWARAN
VAZHAKKAVU AMBALA COMMITTEE REPRESENTED BY ITS PRESIDENT PARAMESWARAN NAIR
VAZHAKKAVU AMBALA COMMITTEE REPRESENTED BY ITS SECRETARY PARAMESWARAN
K. HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
