This appeal was dismissed because the plaintiff failed to establish the identity of the suit property. The High Court held that below courts acted legally in non-suiting the plaintiff, though a fresh title suit remains permissible.
The second appeal was dismissed; plaintiff cannot file injunction on same facts but may pursue title suit.
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 P.B.SURESH KUMAR
MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937
RSA.No. 54 of 2011
JUDGMENT DATED 04-12-2009 IN AS 31/2007 OF PRINCIPAL SUB COURT, THALASSERY JUDGMENT DATED 05-12-2006 IN OS 317/1999 OF MUNSIF COURT, KUTHUPARAMBA
APPELLANT/APPELLANT/PLAINTIFF:
NAMBRON DEVI ALIAS KUNHIMVEETTIL NAMBRON DEVI, W/O.KUNHIKANNAN NAIR, AGED 47 YEARS, AGRICULTURIST, KUNIMVEEDU, VATTIARA, PAYAM AMSOM AND DESOM, P.O.PAYAM EAST, THALASSERY TALUK, KANNUR DISTRICT.
BY ADVS. SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SRI.ANIL D. KAITHAKKEL
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1. NAMBRON KUMBA AMMA,
2. E.K.RAGHAVAN, S/O.KUMBA AMMA,
3. NAMBROM RAVEENDRAN,
R2 BY ADVS. SRI.K.V.PAVITHRAN
SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.C.SREEKUMARAN NAIR
msv/
P.B.SURESH KUMAR, J.
R.S.A.No.54 of 2011
-----------------------------------------------Dated this the 18th day of January, 2016
JUDGMENT
The plaintiff in a suit for injunction is the appellant in this second appeal.
R.S.A.No.54 of 2011
2
alleging that the defendants have committed waste in her property by cutting and removing the trees stood therein. The defendants resisted the suit, contending that they have not trespassed upon any portion of the property of the plaintiff and that they are only in possession of the property owned by them. According to the defendants, the property in their possession is the property obtained by them as per Ext.A4 partition deed, in which the husband of the plaintiff is also a party. At the instance of the plaintiff, an Advocate Commissioner was appointed to identify the suit property. The Commissioner identified the disputed property and shown the same in Ext.A2 plan as plot A. Going by Ext.C2 plan, the property on the east of plot A shown in the plan as plot C1 is the property owned by the husband of the plaintiff and the property on the west of plot A shown in the plan as plot B is the property owned by the plaintiff as per Ext.A1 assignment deed. The property shown as plot D on the south of the plot A in Ext.C2 plan is the property of the
R.S.A.No.54 of 2011
3
defendants. The trial court, on an elaborate consideration of the materials on record, found that the plaintiff has not established the identity of the property obtained by her as per Ext.A1 assignment deed and Ext.A2 purchase Certificate. Consequently, the suit was dismissed. The plaintiff took up the matter in appeal. The appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court and hence this second appeal.
R.S.A.No.54 of 2011
4
In the said view of the matter, there is absolutely no merit in this second appeal and the same is, accordingly, dismissed. It is, however, made clear that since the present suit is one for injunction, the impugned judgment will not stand in the way of the plaintiff filing a fresh suit based on title in respect of the disputed property.
P.B.SURESH KUMAR, JUDGE.
smm
2 issues framed by the court
Whether the plaintiff established identity of the suit property in a suit for injunction.
Whether the trial and appellate courts acted illegally in dismissing the suit for non-establishment of identity.
Nambron Devi Alias Kunhimveettil Nambron Devi
Nambron Kumba Amma
E.K.Ragavan
Nambrom Raveendran
P.B.Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
