In a second appeal against a decree for injunction regarding suit properties, the High Court of Kerala dismissed the appeal, holding that findings on possession are factual and not challengeable under Section 100 CPC.
Interlocutory applications in the appeal closed. Appeal dismissed.
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
WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937
RSA.No. 725 of 2013 (C)
----------------------(AGAINST THE JUDGMENT IN AS.NO. 105/2010 OF II ADDL. DISTRICT COURT, KOZHIKODE DATED 15-10-2012)
(AGAINST THE JUDGMENT IN OS.NO. 503/2007 OF ADDL.MUNSIFF COURT-II, KOZHIKODE DATED 30-03-2010)
APPELLANT(S)/APPELLANT/DEFENDANTS:
1. MOOTHORAN @ SREEDHARAN, AGED 59 YEARS, S/O IMBICHIKEERAN, PUTHURE POTTAMMAL, NEELESWARAM AMSOM, VENNAKODE DESOM,
KOZHIKODE TALUK.
2. DEVI, AGED 53 YEARS, W/O MOOTHORAN @ SREEDHARAN, PUTHURE POTTAMMAL, NEELESWARAM AMSOM, VENNAKODE DESOM,
KOZHIKODE TALUK.
3. RAVINDRAN @ KANNAMCHATHAN, 54 YEARS, S/O IMBICHIKEERAN, PUTHURE POTTAMMAL, NEELESWARAM AMSOM, VENNAKODE DESOM,
KOZHIKODE TALUK.
4. NALINI @ MOOTHORATHY, AGED 56 YEARS, D/O IMBICHIKEERAN, ERANHIKKAL HOUSE,
POST PILASSERY, KUNNAMANGALAM AMSOM, PLASSERY DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.ARUN KRISHNA DHAN
RESPONDENTS/RESPONDENT/PLAINTIFFS:
1. IBRAHIM, S/O ABDULLA, AGED 69 YEARS, PALATTUPARAMBIL, POST NEELESWARAM, NEELESWARAM AMSOM, VENNAKODE DESOM,
KOZHIKODE TALUK.
2/-
sts
-2-
R.S.A.NO.725/2013
2. PATHUMMA, W/O IBRAHIM,AGED 54 YEARS, PALATTUPARAMBIL, POST NEELESWARAM, NEELESWARAM AMSOM, VENNAKODE DESOM,
KOZHIKODE TALUK.
3. BHASKARAN, AGED 51 YEARS, S/O KOTTI, PUTHUR POTTAMMAL HOUSE, NEELESWARAM AMSOM, VENNAKODE DESOM, KOZHIKODE TALUK.
R1 & R2 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
P.B.SURESH KUMAR, J.
R.S.A.No.725 of 2013
-----------------------------------------------Dated this the 20th day of January, 2016
JUDGMENT
The defendants in a suit for injunction are the
appellants in this second appeal.
The plaint schedule item No.2 property lies on the north of the plaint schedule item No.1 property and the plaint schedule item No.3 property lies on the south of the plaint schedule item No.1 property. The defendants own property on the east of the plaint schedule item No.3 property. On the north of the property owned by defendants lies the property of the fifth defendant. According to the plaintiffs, the defendants are attempting to form a pathway through the plaint schedule item No.1 property to the burial ground
R.S.A.No.725 of 2013 2
which lies on the west of the plaint item Nos.1 to 3 properties. The defendants contested the suit. They contended that there exists a pathway through the plaint schedule item No.1 property from the eastern boundary of the property of the fifth defendant up to the western boundary of the plaint schedule item No.1 property. The trial court found that the defendants could not establish that there exists a pathway through plaint schedule item No.1 property and consequently, decreed the suit holding that the plaintiffs have established possession over the suit properties. The defendants, though challenged the decision of the trial court in appeal, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by the defendants.
R.S.A.No.725 of 2013 3
In a suit of this nature, the only point to be seen by the court is as to whether the plaintiffs have established possession over the suit property. The courts below concurrently found that the plaintiffs have established possession over the suit properties. The question as to whether the plaintiffs have established possession over the suit properties is a pure question of fact. The finding rendered on the said question cannot, therefore, be challenged in a second appeal filed under Section 100 of the Code of Civil Procedure.
In the said view of the matter, there is no merit in this appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal closed.
P.B.SURESH KUMAR, JUDGE.
smm
2 issues framed by the court
Whether the findings on possession established by lower courts can be challenged in a second appeal under Section 100 CPC.
Whether the plaintiffs have established possession over the suit properties.
1 provisions across 1 enactments
Moothoran @ Sreedharan and ors
Ibrahim and ors
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
