Dismissed

Noushad V.P. v. Vatteprath Muhammed

Kerala HC10 Mar 2016RSA/1194/2015

Case brief

AI extract

What is this about?

Dismissing the second appeal, the court upheld the non-suit of the appellants (plaintiff's legal representatives) on the ground that possession of land is a question of fact. The court noted that the decision does not preclude the plaintiff from filing a fresh suit based on title for the disputed plot.

What did the court decide?

The second appeal was dismissed. The decision in the suit will not preclude the plaintiff from filing a fresh suit based on title.

Noushad V.P. Vs Vatteprath Muhammed — Partition | 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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THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937

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RSA.No. 1194 of 2015 (A)

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AGAINST THE JUDGMENT IN AS 336/2012 OF SUB COURT, KANNUR DATED19-03-2015. AGAINST THE JUDGMENT IN OS 180/2009 OF MUNSIFF COURT, THALIPARAMBA DATED 31-01-2012.

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APPELLANT(S)/LRS OF APPELLANT/PLAINTIFF:

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1. NOUSHAD V.P., S/O.LATE JAMEELA, AL-FAJAR, AGED 42 YEARS, NEAR COURT, MATTANNUR P.O.,

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PAZHASSI AMSOM, KANNUR DISTRICT.

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2. SHAREEFA V.P., D/O.LATE JAMEELA, AGED 39 YEARS, KADEEJA MANZIL, PEDAYANGODE, IRIKKUR P.O., PADIYOOR AMSOM, PERUMANNU DESOM,

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KANNUR DISTRICT.

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3. RAHEEM V.P., S/O.LATE JAMEELA, AGED 37 YEARS, KADEEJA MANZIL, PEDAYANGODE, IRIKKUR P.O., PADIYOOR AMSOM, PERUMANNU DESOM, KANNUR DISTRICT.

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4. THASLEEMA V.P., D/O.LATE JAMEELA,

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AGED 35 YEARS, AJLAS, PAYANCHERI MUKKU,

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IRITTY P.O., PUNNAD AMSOM, KANNUR DISTRICT.

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5. JALEEL V.P., S/O.LATE JAMEELA, AGED 33 YEARS, KADEEJA MANZIL, PEDAYANGODE, IRIKKUR P.O., PADIYOOR AMSOM, PERUMANNU DESOM,

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KANNUR DISTRICT.

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6. THANSEERA V.P., D/O.LATE JAMEELA, AGED 31 YEARS,

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KADEEJA MANZIL, PEDAYANGODE, IRIKKUR P.O., PADIYOOR AMSOM, PERUMANNU DESOM,

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KANNUR DISTRICT.

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7. KADEEJA V.P., D/O.LATE JAMEELA, AGED 29 YEARS,

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KADEEJA MANZIL, PEDAYANGODE, IRIKKR P.O.,

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PADIYOOR AMSOM, PERUMANNU DESOM,

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KANNUR DISTRICT.

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BY ADVS.SRI.V.T.MADHAVANUNNI

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SRI.V.A.SATHEESH

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--2--

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--2--

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RSA.No. 1194 of 2015 (A)

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RESPONDENT/RESPONDENT/DEFENDANT:

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VATTPRATH MUHAMMED, S/O.PACKER, AGED 65 YEARS,PEDAYANGODE, IRIKKUR P.O., PADIYOOR AMSOM, PERUMANNU DESOM, KANNUR DISTRICT.

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BY ADV. SRI.R.SURENDRAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = =

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R.S.A.No.1194 of 2015.

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= = = = = = = = = = =

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Dated this the 10^th day of March, 2016.

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J U D G M E N T

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The legal representatives of the plaintiff in a suit

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for injunction are the appellants in this second appeal.

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According to the plaintiff, she obtained 2

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acres of property as per Ext.A3 purchase certificate; that she had transferred 30 cents out of the said property to her daughter and that the plaint schedule property is the property remaining with her after the transfer. It is alleged by the plaintiff that the defendant who holds property on the south and east of the plaint schedule property is attempting to trespass into the plaint schedule property. The defendant resisted the suit contending that the plaintiff is not in possession of the property described as the plaint schedule property in the suit. The Advocate Commissioner appointed

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in the suit identified the plaint schedule property. Ext.C1 is

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RSA.No.1194/2015.

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the report of the Advocate Commissioner and Ext.C2 is the plan prepared by the Advocate Commissioner. In Ext.C2 plan, the plaint schedule property is shown as plots 1 to 3. The trial court found that the plaintiff could not establish possession over plot No.3 shown in Ext.C2 plan and consequently non-suited the plaintiff. The plaintiff took up the matter in appeal. The appellate court, on a reappraisal of the evidence on record, concurred with the view taken by the trial court. Hence this second appeal by the legal representatives of the plaintiff.

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3 . Heard the learned counsel for the appellants.

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4 . The extent of the property shown in Ext.A3

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purchase certificate is 2 acres. It is seen that after the report of the Advocate Commissioner, the plaintiff amended the plaint and the extent of the plaint schedule property was corrected as 1 acre 35 cents in the place of 2 acres. 1 acre 35 cents now shown as the extent of the plaint schedule property is the extent of the plots 1 to 3 shown by the

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RSA.No.1194/2015.

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Advocate Commissioner in Ext.C2 plan. The specific case of the plaintiff is that plot No.3 shown in Ext.C2 plan is also part of the plaint schedule property covered by Ext.A3 purchase certificate. The courts below could not agree with the said case of the plaintiff. The question of possession being a pure question of fact, the finding rendered by the courts below as to the possession of the plaintiff over plot No.3 shown in Ext.C2 plan cannot be impugned 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 second appeal and the same is, accordingly, dismissed. It is, however, made clear that the decision in the suit will not preclude the plaintiff from filing a fresh suit based on title in respect of plot No.3 shown in Ext.C2 plan.

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Sd/-

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P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Noushad V.P. v. Vatteprath Muhammed

Case brief

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Noushad V.P. v. Vatteprath Muhammed

Case brief

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