Remanded

Kolara Sekharan Nair v. Janu Amma

Kerala HC1 Dec 2016SA/797/2001

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for permanent injunction over property claimed under different entrustments (Illom), the High Court held that the lower appellate court erred by omitting to consider vital documents determining rival claims. The court set aside the appellate judgment and remitted the matter for fresh consideration on title and possession.

What did the court decide?

The judgment and decree of the lower appellate court are set aside, and the matter is remitted for fresh consideration on title and possession.

Kolara Sekharan Nair Vs Janu Amma — 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 K.HARILAL

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THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938

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SA.No. 797 of 2001 (C)

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AGAINST THE JUDGMENT AND DECREE DATED 28/2/2001 IN AS 4/1997 of SUB COURT, QUILANDY.

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AGAINST THE JUDGMENT AND DECREE DATED 25/10/1996 IN OS 241/1990 of MUNSIFF'S COURT, QUILANDY.

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APPELLANT/1ST RESPONDENT/PLAINTIFF:

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KOLARA SEKHARAN NAIR, AGED 52 YEARS, S/O. APPU NAIR, P.O. NATERI, KOYILANDI TALUK, KOZHIKODE DISTRICT.

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BY ADV. SRI.R.PARTHASARATHY

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RESPONDENTS/APPELLANT AND 2ND RESPONDENT/DEFENDANTS:

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1. * JANU AMMA, AGED 65 YEARS, D/O. AMMALU AMMA, KOLARA HOUSE, P.O. NATERI,KOYILANDI TALUK, KOZHIKODE DISTRICT. [DIED - LRS RECORDED]

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2. SYAMALA, AGED 44 YEARS, D/O. JANU AMMA, KOLARA HOUSE, P.O. NATERI,KOYILANDI TALUK, KOZHIKODE DISTRICT.

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3. BABU, AGED 39 YEARS, S/O. JANU AMMA, KOLARA HOUSE, P.O. NATERI,KOYILANDI TALUK, KOZHIKODE DISTRICT.

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4. ASHOKAN, AGED 35 YEARS, S/O. JANU AMMA, KOLARA HOUSE, P.O. NATERI,KOYILANDI TALUK, KOZHIKODE DISTRICT.

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......2

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-2-

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5. DILIP ALIAS SHAJI, AGED 33 YEARS, S/O. JANU AMMA, KOLARA HOUSE, P.O. NATERI,KOYILANDI TALUK, KOZHIKODE DISTRICT.

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6. RADHA AMMA, D/O. SIVADASAN, TALUK OFFICE, OOTY, NILGIRI DISTRICT, TAMIL NADU.

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RESPONDENTS 2 TO 6 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 6/9/2013 ON MEMO CF 5962/13 DATED 29/8/13.

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R2 TO R6 BY ADV. S.V.B. IYER (SR) ADV. SRI.P.B.KRISHNAN ADV. SRI.P.B.SUBRAMANYAN

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CROSS-OBJECTION ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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S.A. No. 797 of 2001 & Cross-objection

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-----------------------------------------------------Dated this the 1^st day of December, 2016

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JUDGMENT

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The appellant is the plaintiff in O.S. No.241/1990 on the files of the Munsiff's Court, Koyilandy. According to the plaintiff, the plaint schedule property originally belonged to Narikkini Edavana illath Sreedevi Antharjanam and the plaintiff's father took the property on lease orally from her and thereafter, he was in possession of the plaint schedule property. The defendants, on the other hand, contended that the plaintiff's father never got any leasehold right over the the plaint schedule property and the plaint schedule property, along with other properties, was taken on lease by the husband of the 1^st defendant from one Krishnan Namboothiri of the same Illom and he has got

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S.A. No. 797 of 2001 -: 2 :-

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lease hold right over that property and after his death, the properties in the possession of defendants. Thus, both the plaintiff and the defendants raised claim over the plaint schedule property under the same Illom; but with different entrustment.

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In order to prove the case put forward by the plaintiff, he has produced and marked Exts.A1 to A18 and the defendants produced and marked Exts.B1 to B12. The plaintiff was examined as P.W.1 and the 1^st defendant was examined as D.W.1. After considering the aforesaid evidence, on record, the trial court decreed the suit, by granting permanent injunction, restraining the defendants from trespassing upon the plaint schedule property, on a finding that the plaintiff has title and possession over the plaint schedule property.

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Aggrieved by the judgment and decree, the defendants preferred A.S.No.4/1997 before the Sub Court, Quilandy. After re-appreciating the evidence, on record, the appellate court reversed the findings of

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S.A. No. 797 of 2001 -: 3 :-

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the trial court and allowed the appeal, on a finding that even though the plaintiff has title over the property, he failed to prove possession and the property is not an identifiable one.

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This appeal and Cross-objection are filed challenging the divergent findings; whereby the trial court decreed the suit and the appellate court dismissed the same.

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

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In view of the submissions made at the Bar, the question that arises for consideration in this appeal is, whether the lower appellate court has omitted to consider the vital documents which determine the rights of the parties under the evidence adduced by them. Needless to say, the Supreme Court has held that omission to consider the vital documents is a substantial question of law, that can be considered in the Second Appeal. The courts below

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S.A. No. 797 of 2001 -: 4 :-

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concurrently held that the plaintiff has title over the property. So also, the trial court found that the property is an identifiable one and the plaintiff is in possession of the same. But, the lower appellate court reversed the said finding and found that the plaint schedule property is not an identifiable one and thereby the injunction cannot be granted for the said property.

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Going by the judgment passed by the trial court, obviously, it is seen that the trial court has meticulously considered each and every document produced and marked, in evidence; whereas it is apparent that the lower appellate court omitted to consider various documents, other than the Commission Report. This Court finds that the documents which are seen omitted to consider by the lower appellate court are vital documents which determine the rival claims set up by both parties on the plaint schedule property.

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In the above view of the matter, this Court is

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S.A. No. 797 of 2001 -: 5 :-

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inclined to set aside the judgment and decree passed by the lower appellate court and I do so. The matter is remitted back to the lower appellate court for fresh consideration on both title and possession of the plaint schedule property. The lower appellate court shall pass judgment afresh, within a period of four months from the date of appearance of the parties. The parties shall appear before the lower appellate court on 04/01/2017.

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This Second Appeal and the Cross-objection are disposed of accordingly.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

Kolara Sekharan Nair v. Janu Amma

Case brief

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Kolara Sekharan Nair v. Janu Amma

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