Allowed

Sathyapalan and Others v. Rajasekharan Nair and Another

Kerala HC5 Oct 2017RSA/623/2011

Case brief

AI extract

What is this about?

A Regular Second Appeal challenging a permanent prohibitory injunction decree. The High Court held the lower appellate court erred in its finding linking property documents, as the plaint contained no such plea. The appeal was allowed, setting aside the lower appellate decree and maintaining the trial court's dismissal.

What did the court decide?

Regular Second Appeal allowed; lower appellate court decree set aside; trial court judgment and decree maintained; no order as to costs.

Sathyapalan and Others Vs Rajasekharan Nair and Another — 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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THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939

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RSA.No. 623 of 2011 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 28-01-2011 IN AS 109/2007 of DISTRICT COURT, PATHANAMTHITTA

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AGAINST THE JUDGMENT AND DECREE DATED 22-02-2007 IN OS 16/2001 of MUNSIFF COURT, PATHANAMTHITTA

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APPELLANT/RESPONDENTS/DEFENDANTS:

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1. SATHYAPALAN, S/O. KUNJUKUNJU, UZHATHIL HOUSE, VALLICODU MURI, VALLICODE VILLAGE, VALLICODE.P.O., PATHANAMTHITTA, PIN-689659.

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2. TRUSTHSAN SATHYAN, S/O. SATHYAVAN, UZHATHIL HOUSE, VALLICODE MURI, VALLICODE VILLAGE, VALLICODE.P.O., PATHANAMTHITTA, PIN-689659.

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3. TRUBREDSON SATHYAN, S/O. SATHYAVAN, UZHATHIL HOUSE, VALLICODU MURI, VALLICODE VILLAGE, VALLICODE.P.O., PATHANAMTHITTA, PIN-689659.

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4. RETNAMMA, W/O. SATHYAVAN, UZHATHIL HOUSE, VALLICODE MURI, VALLICODE VILLAGE, VALLICODE P.O., PATHANAMTHITTA, PIN-689659.

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5. TREEGA SATHYAN, D/O. RETNAMMA, UZHATHIL HOUSE, VALLICODU MURI, VALLICODE VILLAGE, VALLICODE P.O., PATHANAMTHITTA, PIN-689659.

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BY ADVS.SRI.P.VIJAYAKUMAR

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SRI.C.R.REGHUNATHAN

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RESPONDENTS/APPELLANTS/PLAINTIFFS:

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1. RAJASEKHARAN NAIR, S/O. LATE RAMAN NAIR, THRIPPARA THEKKETHIL, VALLICODE VILLAGE,, VALLICODE.P.O.,PATHANAMTHITTA-689659.

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RSA.No. 623 of 2011 (G)

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2. SMITHA, D/O. SARASAMMA, THRIPPARA THEKKETHIL, VALLICODE VILLAGE, VALLICODE P.O., PATHANAMTHITTA-689659.

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R1 & R2 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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B. KEMAL PASHA, J.

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===================

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R.S.A. No.623 of 2011

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====================

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Dated this the 5^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 judgment and decree passed by the District Court, Pathanamthitta in A.S.No.109 of 2007, the respondents in the appeal, who are the defendants in O.S.No.16 of 2001 of the Munsiff’s Court, Pathanamthitta,

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have come up with this Regular Second Appeal.

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The suit is one for injunction simplicitor. The case of the plaintiffs is that under the guise of Exhibit-B1 Patta , the appellants had frequently interfered with the ' Virivu' portion of the property of the plaintiffs. It is the case of the plaintiffs that Exhibit-B1 Patta was canceled on an application made by DW2, who is none other than the sister

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R.S.A. No.623/11

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: 2 :

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of the 1^st appellant. The defendants contended that ExhibitB1 Patta issued in favour of the 1^st appellant was never canceled and the 1^st appellant has been in exclusive possession and enjoyment of the said ' Virivu' portion on the basis of the said Patta.

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3. It has come out that earlier, a suit for inunction was filed as O.S.No.677 of 2000 before the Munsiff’s Court, Pathanamthitta by the 1^st appellant as plaintiff, relating to the said ' Virivu' portion. The plaintiffs herein were the defendants in the said suit. The said suit was decreed. At the same time, the said decree was not executable because of the fact that the property in question was not scheduled in the suit.

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On a threadbare examination of the pleadings and evidence in the suit, the trial court dismissed the suit. The plaintiffs challenged the dismissal before the District Court, Pathanamthitta, through A.S.No.109 of 2007. The District Court, without much discussions came to the conclusion

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R.S.A. No.623/11

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: 3 :

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that the property covered by Exhibit-B1 is not the ' Virivu ' portion being claimed by the plaintiffs. Based on the said observation, the lower appellate court allowed the appeal by setting aside the decree of dismissal passed by the trial court. The appellate court granted a decree of permanent prohibitory injunction restraining the defendants from committing trespass into the property claimed by the plaintiffs.

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This Court has admitted this Regular Second Appeal on the following substantial question of law:

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“Whether on the evidence on record,

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the first appellate court was justified in interfering with the decree passed by the trial court finding that respondents are not entitled to the decree for injunction sought for.”

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Heard the learned counsel for the appellants and the learned counsel for the respondents.

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The learned counsel for the appellants has pointed

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R.S.A. No.623/11

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: 4 :

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out that the lower appellate court was not at all justified in entering a finding that Exhibit-B1 does not relate to the ' Virivu' portion of the property claimed by the plaintiffs, especially when, the plaintiffs themselves have no such case at all. It has been argued that what was pleaded before the trial court by the plaintiffs was that the Patta obtained by the 1^st appellant was canceled on an application filed by the sister of the 1^st appellant and therefore, the 1^st appellant had no right to claim any such property based on the said Patta.

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Per contra , the learned counsel for the respondents has argued that the lower appellate court has correctly considered the issue involved and found that the respondents are entitled to a decree of perpetual injunction. It has also been argued that the lower appellate court could clearly note that Exhibit-B1 Patta does not relate to the property claimed by the appellants. The argument is that by making use of Exhibit-B1 Patta obtained in respect of some

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R.S.A. No.623/11

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: 5 :

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other property, the appellants have attempted to forward a claim over the ' Virivu' portion attached to the property of the plaintiffs.

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On hearing either side and on perusing the judgments passed by both the courts below, it has come out that the lower appellate court has gone wrong in finding that Exhibit-B1 does not relate to the property being presently claimed by the appellants. It has to be noted that there were no pleadings from the part of the plaintiffs in the plaint that the Patta obtained by the 1^st appellant does not relate to the Virivu portion of the property being claimed by the plaintiffs. Their specific case in the plaint was that the Patta obtained by the 1^st appellant was canceled on the application of the sister of the 1^st appellant and therefore, based on the said Patta, the 1^st appellant cannot forward any claim over the property involved. The appellants could prove before the trial court that Exhibit-B1 Patta issued in favour of the 1^st appellant was never canceled. The same is

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R.S.A. No.623/11

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: 6 :

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evident from Exhibit-B3 proceedings. The appellants had produced Exhibit-B2 tax receipt in respect of the property covered by the Patta . Therefore, it is evident that even as per Revenue Records, the appellants are in possession of the property covered by Exhibit-B1 Patta .

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At any point of time, the plaintiffs had no case before the trial court that Exhibit-B1 Patta does not relate to any of the portions of the the property involved in the suit. The lower appellate court ought not to have decided that Exhibit-B1 Patta does not relate to the property in question. In the absence of any materials or evidence, for entering such a finding, the lower appellate court has made such a finding even when there were no such pleadings in the plaint. Matters being so, the property claimed by the plaintiffs in the suit cannot be said to be identifiable and in such case, the lower appellate court ought not to have reversed the judgment and decree passed by the trial court. It has become clear that the lower appellate court had gone

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R.S.A. No.623/11

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: 7 :

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wrong in upsetting the judgment and decree passed by the trial court. Therefore, this Regular Second Appeal is only to be allowed.

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In the result, this Regular Second Appeal is allowed and the judgment and decree passed by the lower appellate court are set aside. The judgment and decree passed by the trial court are maintained. In the nature of this appeal, there is no order as to costs. All the pending interlocutory applications in this Regular Second Appeal are closed.

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Sd/- (B.KEMAL PASHA, JUDGE)

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DSV/6/10/17

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// True Copy //

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P.A. To Judge

Sathyapalan and Others v. Rajasekharan Nair and Another

Case brief

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Sathyapalan and Others v. Rajasekharan Nair and Another

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