Remanded

Jalaja v. Neelakandan Elayath

Kerala HC24 Oct 2016RSA/124/2016

Case brief

AI extract

What is this about?

This appeal challenged dismissal of an injunction suit. The High Court held that injunctions based solely on title require proof of title and possession. Finding the matter unsettled, the court set aside lower order and remitted for pleadings amendment.

What did the court decide?

Impugned judgments set aside; matter remitted to trial court for amendment of pleadings to establish title and possession; status quo maintained.

Jalaja Vs Neelakandan Elayath — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938

¶5

RSA.No. 124 of 2016 (F)

¶6

AGAINST THE JUDGMENT & DECREE DATED 19.1.2016 IN AS 21/2015 of SUB COURT, MUVATTUPUZHA

¶7

AGAINST THE JUDGMENT & DECREE DATED 18.8.2015 IN OS 368/2011 of MUNSIFF COURT,MUVATTUPUZHA

¶8

APPELLANT/APPELLANT/PLAINTIFF:

¶9

JALAJA, AGED 55 YEARS, D/O SATHYABHAMA, MOOTHEDATH VADAKKEPADATH HOSUE, PANIPRA KARA, NAGANCHERI KARA, THRIKKARIYOOR.

¶10

BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH SRI.VINAY MATHEW JOSEPH

¶11

RESPONDENT/RESPONDENT/DEFENDANT:

¶12

NEELAKANDAN ELAYATH, AGAED ABOUT 34 YEARS, S/O VASUDEVAN ELAYATH, KURUKAPPILLUY ELLAM, AYAKKADU KARA, THRIKKARIYOOR VILLAGE, ERNAKULAM DISTRICT, PIN:686 692.

¶13

BY ADVS. SRI.N.G.SURENDRAN SRI.M.S.JAYAKRISHNAN

¶14

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

OKB

¶16

K.HARILAL, J.

¶17

R.S.A. No.124 of 2016

¶18

Dated this the 24^th day of October, 2016

¶19

JUDGMENT

¶20

~ ~ ~ ~ ~

¶21

The appellant is the plaintiff in the Original Suit No.368/2011 of Munsiff's Court, Muvattupuzha and the appellant in the Appeal Suit No.21/2005 of the Sub Court, Muvattupuzha. The suit was one for permanent prohibitory injunction restraining the defendant and his men from trespassing into plaint A schedule property or forcefully reducing any part of it or obliterating or destroying the boundaries of the plaint schedule property or committing waste therein and for a mandatory injunction directing the defendant to reconstruct the western boundary of kayyala and to remove fencing through the western and southern boundaries of plaint schedule property and, in case of failure of the defendant, for allowing the plaintiff to reconstruct the kayyala and remove the fencing through the process of the court and also for damages to the tune of Rs.20,000/- from the defendant. According to the plaintiff, she obtained the plaint schedule property

¶22

RSA.124/16-F :2:

¶23

comprised in Sy.No.36/6A of Thrikkariyoor Village as per partition deed No.916/77 of Kothamangalam S.R.O. and she is in absolute possession and enjoyment of the said property. The plaint schedule property is 1 Acre and 35 cents and 'virivu,', which is shown as item No.2 in the sale deed. It is further averred that the total extent of property partitioned in Sy.No.36/6A is 2 Acres 87 cents in the partition deed No.916/1977. In the middle of this 2 Acres 87 cents an extent of 17 cents was set apart for a 'Sarppakkavu'. Leaving this 17 cents, the remaining 2 Acres 70 cents and virivu were equally partitioned among the plaintiff and Leelamani, the sister of the plaintiff. Though the Sarppakkavu is mentioned in the partition deed, no such kavu or deities are in the 17 cents. Half of the 17 cents, i.e. 8.5 cents each, is lying within the four boundaries of other sharer Leelamani. The other 8.5 cents is lying within the four boundaries of the plaint schedule property without any demarcation from the remaining property. Thus, the plaintiff and Leelamani have been in possession of that 17 cents for a long time, and it lies without any boundaries, as part of their respective shares.

¶24

RSA.124/16-F :3:

¶25

The defendant has no property anywhere near the plaint schedule property. But recently the defendant raised a claim with respect to the south-western part of the plaint schedule property and demanded the plaintiff to set apart that portion and the plaintiff declined the defendant's demand and on the evening of 05.8.2011 the defendant made an attempt to demolish the western boundary and trespass into the plaint schedule property. In that attempt, the defendant uprooted and destroyed 5 rubber trees and levelled a portion of the property. So also, the defendant started construction of fencing around the property lying on the south-western part of the scheduled property. In the above circumstance the suit was filed seeking an injunction; both prohibitory and mandatory.

¶26

The defendant contended that an extent of 59 cents of property in the possession and enjoyment of the defendant is wrongly included in the plaint schedule property. Item No.2 of partition deed No.916/77 of Kothamangalam S.R.O. is not fully possessed by the plaintiff; but some portion is possessed by the plaintiff's sister. The plaintiff has no right to get partition of 2

¶27

RSA.124/16-F :4:

¶28

acre 87 cents in Sy.No.36/6A. As per the deed the plaintiff has only right of 1.35 acres of property and out of 2.87 Acres property 17 cents is possessed by the defendant. The defendant's property is situated on the southern side of the Kavu as per deed No.4512/11 of Kothamangalam S.R.O. The plaintiff demolished the northern and eastern boundaries of the fencing of the defendant's property. In short, according to the defendant, on the south-western side of the plaint schedule property 59 cents of the defendant's property is situated.

¶29

On the aforesaid rival pleadings, both parties adduced oral and documentary evidence in abundance. After considering the evidence on record, the courts below concurrently arrived at a finding that the plaintiff is not entitled to get a decree as prayed for as the evidence adduced by the plaintiff is not sufficient to prove his exclusive ownership and possession over the plaint schedule property, for which injunction was sought for.

¶30

Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.

¶31

The original suit is one for simple injunction only.

¶32

RSA.124/16-F :5:

¶33

The appellant and her sister claimed title and possession over 2.70 Acres and virivu. As per Ext.A3 partition deed, they have partitioned the said property equally. Further they have averred that in the middle of 2.87 Acres in Sy.No.36/6A an extent of 17 cents was set apart for Sarppakkavu and leaving this 17 cents the remaining 2.70 Acres and virivu was partitioned among the plaintiff and Leelamani. At present, there is no Sarppakkavu and out of 17 cents, 8.5 cents is lying within the four boundaries of the plaint schedule property and the remaining half is within the portion of Leelamani's property. Thus, even though the plaintiff has no title over 8.5 cents of property, the plaintiff is in possession and enjoyment of 1 Acre and 43.5 cents of property.

¶34

Going by the judgment passed by the court below, it could be seen that the court below has considered the title and possession over the property mainly on the basis of survey numbers and admittedly the plaintiff has no property as per the partition deed in Sy.No.36/6B. Similarly, as per Ext.B2 partition deed the defendant also has no property in Sy.No.36/6A. Thus, the properties of the

¶35

RSA.124/16-F :6:

¶36

plaintiff and defendant are lying in different survey numbers as per Ext.B2; i.e., 36/6A and 36/6B respectively.

¶37

The learned counsel for the appellant fairly

¶38

submitted that actually the appellant/plaintiff was in possession and enjoyment of some property comprised in Sy.No.36/6B also. But that survey number was omitted to be mentioned in Ext.A3 partition deed. On the other hand, the defendant submitted that he is in possession of that property which is shown as comprised in Sy.No.36/6B in the commission reports. It is pertinent to note that the Commissioner has reported that item No.10 in the sketch, which was found in possession of the plaintiff, is comprised in Sy.No.36/6B. In Ext.C1 commission report, the Commissioner has stated old boundaries on the four sides of the plaint schedule property except the south-western corner which according to the plaintiff, the defendant tried to incorporate the said portion and according to the defendant the plaintiff put up new fencing to grab that property which was in possession of the defendant. Thus, the bone of contentions is the property comprised in Sy.No.36/6B.

¶39

RSA.124/16-F :7:

¶40

But, none of the parties have come forward to amend the plaint to establish their respective title and possession over their properties, even though the Commissioner has reported that the plaintiff has possession over the properties comprised in Sy.No.36/6B. So also, none of the parties have a claim of adverse possession. Both parties are claiming possession on the basis of title. Where the injunction is sought for on the basis of title only, unless title and consequential possession thereunder are established beyond doubt, no injunction can be granted. But no attempt had been made to declare their title and possession on the basis of respective title deeds. This Court is of the view that the matter in issue involved in this case can be settled by providing an opportunity to both parties to establish their title and possession in accordance with their respective title deeds, under which they are claiming possession.

¶41

In the above view, the impugned judgments and decrees passed by the courts below will stand set aside and the matter will stand remitted back to the trial court

¶42

RSA.124/16-F :8:

¶43

for seeking appropriate reliefs, so as to settle the matter in issue finally. Both parties shall appear before the trial court on 30.11.2016 and they shall be given an opportunity to amend respective pleadings and reliefs on applications to that effect. If none of the parties takes any steps in this respect within a period of two months from the date of receipt of a copy of this judgmentm the impugned judgments and decrees will stand in force. The suit will be disposed of within a period of six months from today. The parties shall maintain status quo till the disposal of the suit afresh.

¶44

All pending interlocutory applications will stand closed.

¶45

Sd/-

¶46

K.HARILAL, Judge.

¶47

okb

Jalaja v. Neelakandan Elayath

Case brief

What is this about?

What did the court decide?

Jalaja v. Neelakandan Elayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Mammad Alias Bappu Vs Muhammed Ishaq Haji

Kizhakke Puliyamveettil Moidu Haji Vs Mannampoyil Moidu

G.Raghava Ganakan Vs K.P.Sarasamma

Moidutty Vs Viswanatha Menon &Others

Amina Vs Khadeeja

Sudha Vs Kanakam