Dismissed

Raghavan Nair v. Sreedharan

Kerala HC11 Feb 2016RSA/577/2012

Case brief

AI extract

What is this about?

In a second appeal against a decree in a suit for injunction, the High Court held that since the finding of the appellate court regarding the plaintiffs' possession was a question of fact, it could not be interfered with under Section 100 CPC. The appeal was dismissed accordingly.

What did the court decide?

Second appeal was dismissed as the finding on possession could not be altered under Section 100 CPC.

Raghavan Nair Vs Sreedharan — 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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THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937

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RSA.No. 577 of 2012 ()

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AGAINST THE JUDGMENT IN AS. NO.220/2004 OF ADDL. DISTRICT COURT-I, MAVELIKKARA DATED 22-09-2010. AGAINST THE JUDGMENT IN OS. NO.19/2002 OF MUNSIFF COURT, KAYAMKULAM DATED 27-07-2004.

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APPELLANTS/RESPONDENTS 1 AND 2/DEFENDANTS 1 AND 2::

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1. RAGHAVAN NAIR, THARAL VADAKKATHIL VEEDU, KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE, PIN-690 533.

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2. CHELLAMMA, THARAL VADAKKATHIL VEEDU, KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE, PIN-690 533.

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BY ADVS.SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH.

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RESPONDENTS/APPELLANTS AND RESPONDENTS 3 TO 5/ PLAINTIFF AND DEFENDANTS 3 TO 5:

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1. SREEDHARAN NAIR, S/O.KRISHNAN NAIR, KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE, PIN-690 533.

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2. PRABHAKARAN NAIR, S/O.KRISHNAN NAIR, KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE, PIN-690 533.

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3. MEENAKSHIAMMA, D/O.GOWRIAMMA, KAPPILKIZHAKKUM MURI, KRISHNAPURAM VILLAGE, PIN-690 533.

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4. TALUK SURVEYOR, TALUK OFFICE, KARTHIKAPPALLY-690 516.

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RSA.No. 577 of 2012

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5. TAHSILDAR, KARTHIKAPPALLY-690 516.

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6. STATE OF KERALA, REPRESENTED BY ITS DISTRICT COLLECTOR, ALAPPUZHA-688 001.

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R1 & R2 BY ADV. SMT.S.L.SYLAJA. R4 TO R6 BY GOVT. PLEADER SRI.JOBY JOSEPH.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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P.B.SURESH KUMAR, J.

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---------------------------------R.S.A.No.577 OF 2012

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Dated this the 11^th day of February, 2016

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J U D G M E N T

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~~~~~~~~~~~

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Defendants 1 and 2 in a suit for injunction are the appellants in the Second Appeal.

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According to the plaintiffs, they have obtained the suit property measuring 26 ½ cents as per Exts.A1 to A5 documents and they are in possession of the same. It is alleged by the plaintiffs that the defendants, who are holding property on the north of the suit property, are attempting to encroach into the suit property. The Advocate Commissioner appointed in the suit filed Ext.C1 report and C1(a) rough sketch. In Ext.C1 report, the Advocate Commissioner has categorically stated that the suit property is identifiable physically as it lies at a higher level than the property of defendants 1 and 2 on its north. The trial court dismissed the suit. The plaintiffs took up the matter in appeal. The appellate court, relying on the report of the Advocate Commissioner, found that the suit property is

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R.S.A.No.577/2012

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-2-

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identifiable. The appellate court also noticed that the predecessor of the defendants, Eswary Amma, had only 19 cents of property and her successors including the defendants are shown to be holding 29.146 cents of property in the resurvey records. The appellate court also noticed that the plaintiffs who are admittedly having 26 ½ cents of property as per Exts.A1 to A5 documents is shown to be holding only 25.935 cents of property in the re-survey records. On an appraisal of the aforesaid facts, the appellate court reversed the decision of the trial court and decreed the suit. The defendants 1 and 2 who are aggrieved by the said decision of the appellate court have thus come up in this second appeal.

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Heard the learned counsel for the appellants.

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As noted above, the suit from which the Second Appeal arises is a suit for injunction. What is to be seen by the court in a suit for injunction is as to whether the plaintiff has established possession over the suit property. The question as to possession is a pure question of fact. The appellate court found on facts that the plaintiffs have established possession over the suit property. The said finding rendered by the appellate court

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R.S.A.No.577/2012

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on the issue of possession cannot be changed in a second appeal filed under Section 100 of the Code of Civil Procedure. In the said view of of the matter, there is no merit in the second appeal and the same is accordingly dismissed.

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The learned counsel for the appellants pointed out that after the present suit, the plaintiffs have instituted another suit against the defendants and others for fixation of the northern boundary of the suit property and the same is pending. It is, therefore, made clear that the judgment in the present suit will not stand in the way of the defendants claiming recovery of possession of any portion of the plaint schedule property, if they are able to establish title over the same.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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ps/12/2/16

Raghavan Nair v. Sreedharan

Case brief

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Raghavan Nair v. Sreedharan

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