Dismissed

Kodamthuruth Karshaka Sangham v. Karumbi Thankamma

Kerala HC16 Oct 2017RSA/424/2017

Case brief

AI extract

What is this about?

The High Court of Kerala held that the Regular Second Appeal was not maintainable. The court observed that the facts regarding land title and trespass were concurrently found by the trial and lower appellate courts. Finding no substantial question of law to emerge, the appeal was dismissed.

What did the court decide?

The Regular Second Appeal was dismissed; all pending interlocutory applications in the appeal were closed.

Kodamthuruth Karshaka Sangham Vs Karumbi Thankamma — Property and Title | Kerala HC (2017)

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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 B.KEMAL PASHA

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MONDAY, THE 16TH DAY OF OCTOBER 2017/24TH ASWINA, 1939

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RSA.No. 424 of 2017 ()

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AGAINST THE JUDGMENT AND DECREE DATED 16-06-2016 IN AS 51/2010 of SUB COURT, CHERTHALA

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AGAINST THE JUDGMENT AND DECREE DATED 30-03-2010 IN OS 641/1993 of PRINCIPAL MUNSIFF'S COURT, CHERTHALA

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APPELLANT/APPELLANT/DEFENDANT.:

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KODAMTHURUTH KARSHAKA SANGHAM REG. NO.171/83, REPRESENTED BY ITS PRESIDENT, KODAMTHURTH VILLAGE, KODAMTHURUTH MURI, KUTHIATHODU PO, PIN CODE. 688533.

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BY ADVS.SRI.K.G.PAVITHRAN

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SRI.V.N.SUBHANGAN

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RESPONDENT/RESPONDENT/PLAINTIFF.:

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KARUMBI THANKAMMA AGED ABOUT 80 YEARS, KALATHIL HOUSE, KODAMTHURUTH MURI, KODAMTHURUTH VILLAGE PO, KUTHIATHODU, CHERTHALA, PIN. 688533.

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BY ADV. SRI.E.S.ASHRAF

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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R.S.A. No.424 of 2017 A

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Dated this the 16^th day of October, 2017

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Challenging the concurrent findings entered by the Principal Munsiff's Court, Cherthala in OS No.641/1993 followed by those of the Subordinate Judge's Court, Cherthala in AS No.51/2010, the defendant has come up in appeal. The defendants in the suit is Kodamthuruth Karshaka Sangham represented by its President. Initially, the Munsiff's Court, Cherthala had dismissed the suit on 09.12.1998 whereupon, AS No.5/1999 was filed by the plaintiff before the Subordinate Judge's Court, Cherthala. The lower appellate court allowed the appeal and remitted the suit back to the Munsiff's Court, Cherthala for a survey

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RSA.424/2017

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: 2 :

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and measurement of the property.

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Consequently, a Commission was taken out with

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the assistance of a Surveyor and Ext.C3 Commissioner's report and Ext.C3(a) plan were prepared. The Munsiff's Court decreed the suit in terms of the plaint. A decree declaring the title and possession of the plaintiff was passed. Over and above it, a decree for mandatory injunction for the removal of the bund put up by the defendants in the channel at the eastern side of the plaint schedule property, as well as a decree of perpetual injunction restraining the defendant and their men from trespassing into the plaint schedule property and from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property was also passed. Ext.C3(a) plan was ordered to be appended with the decree.

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Challenging the judgment and decree, the defendant preferred AS No.51/2010 before the Subordinate

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RSA.424/2017

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: 3 :

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Judge's Court, Cherthala. The lower appellate court also concurred with the findings entered by the trial court, and dismissed the appeal with costs, and hence this Second Appeal.

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The case of the plaintiff is that the plaintiff is the title holder in respect of 14 cents of property in survey No.269/2/1 of the Thuravur North Village through Ext.A1 sale deed of the year 1982. According to the plaintiff, the defendant forcibly trespassed into the plaint schedule property on 23.09.1993, and put up a bund at the southern and northern end of the eastern channel, and hence the suit.

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The defendant contended that the plaintiff is not entitled to file a suit of this nature against the defendant. It is also contended that the description of the plaint schedule property given in the plaint is not correct. The northern and eastern sides of the plaint schedule property are puramboke canals and the same are in the possession of the defendant,

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RSA.424/2017

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: 4 :

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who is conducting agricultural operations in the padasekharam . It is also contended that the right on the puramboke thodu has been identified in favour of the defendant by the District Collector, Alappuzha and also the Puncha Special Officer, Alappuzha.

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Heard learned counsel for the appellant and learned counsel for the respondent on the question of admission.

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It seems that the facts have been concurrently found by both the courts below. Initially, the trial court had taken the view that the property was not properly identified and it was on that ground, the suit was dismissed. The lower appellate court in AS No.5/1999 found that an opportunity ought to have been granted to the plaintiff to establish the identity of the property, for which the suit was remitted with a direction to appoint an Advocate Commissioner with the aid of the Surveyor to carry out survey and measurement of the property. After the remand, complying with the remand

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RSA.424/2017

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: 5 :

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order, an Advocate Commissioner was appointed with the assistance of a Surveyor. The Commissioner and Surveyor together prepared Ext.C3 and Ext.C3(a), whereby the property was clearly identified.

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Thereafter, the trial court appreciated Ext.C3 and Ext.C3(a), even though the same were seriously objected to by the defendant. The objections were not sustainable and consequently, the trial court accepted Ext.C3(a) based on which the suit was decreed by directing that Ext.C3(a) shall form part of the decree. Again, the matter was unsuccessfully challenged by the defendant before the lower appellate court through AS No.51/2010. It seems that the lower appellate court has also appreciated the facts proved in the suit, and the records including Ext.C3(a) and concurred with the findings entered by the trial court.

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On hearing the learned counsel for the appellant

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and on perusing the judgments concurrently passed by both the courts below, it has come out that any substantial

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RSA.424/2017

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: 6 :

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question of law does not emerge from the Second Appeal. Facts have been concurrently found by both the courts below. It does not give rise to any substantial question of law. Matters being so, this Regular Second Appeal is not maintainable and is only to be dismissed, and I do so.

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In the result, this Regular Second Appeal is dismissed. All pending interlocutory applications in this appeal are

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closed.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/16/10

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// True Copy //

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PS to Judge

Kodamthuruth Karshaka Sangham v. Karumbi Thankamma

Case brief

What is this about?

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Kodamthuruth Karshaka Sangham v. Karumbi Thankamma

Case brief

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