Dismissed

Kamalakshi v. Ramakrishnan

Kerala HC6 Jan 2017RSA/80/2007

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a Regular Second Appeal arising from a suit for a permanent prohibitory injunction. The appellant sought to restrain the defendant from trespassing into the plaintiff's property and using common tank and bund facilities. The court found no illegality in the lower courts' findings that the plaintiff lacked exclusive title and possession, as the tank was a public ut

What did the court decide?

No relief granted. The appeal was dismissed, maintaining the lower courts' refusal of the injunction.

Kamalakshi Vs Ramakrishnan — Landlord and Tenant | 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 K.HARILAL

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FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938

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RSA.No. 80 of 2007 (A)

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AGAINST THE JUDGMENT & DECREE DATED 08-06-2006 IN AS.177/2001 of I ADDL. DISTRICT COURT ,PALAKKAD

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AGAINST THE JUDGMENT & DECREE DATED 21-12-2000 IN OS.491/1993 of PRINCIPAL SUB COURT, PALAKKAD

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APPELLANT IN R.S.A./APPELLANT IN A.S/PLAINTIFF IN THE SUIT:

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KAMALAKSHI, W/O. RAJAN, RESIDING AT MUDIKUTHAMPARA, KUTHANOOR AMSOM DESOM, ALATHUR TALUK PALAKKAD DISTRICT.

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BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN

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SRI.K.JAYAKUMAR

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RESPONDENT IN R.S.A/RESPONDENT IN A.S./DEFENDANT IN THE SUIT:

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RAMAKRISHNAN, S/O.CHATHU, RESIDING AT MUDIKUTHAMPARA, CHIMPUKADU, KUTHANOOR AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.T.C.SURESH MENON

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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R.S.A. No.80 of 2007

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 6^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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The above Regular Second Appeal arises from a suit filed by the appellant for a permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property, including the tank, ridges, bunds or cutting open bunds for taking water to his paddy fields and other reliefs. According to the plaintiff, the plaint schedule property including the plaint schedule pond and all surrounding paddy fields belonged in Jenmam to Poomulli Mana has been leased to one Chami and others and became entitled to purchase Jenmam right under the Kerala Land Reforms Act, 1963, (for short, 'the Act'). The plaintiff purchased half right over the tank and the lands on the eastern side from some of the legal representatives of the said Chami and her husband purchased the remaining

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RSA.80/07-A :2:

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half right over the tank and the lands on the western side by virtue of Ext.A1. She claims that she is in exclusive possession and enjoyment of the plaint schedule property having 53 cents and the aforesaid tank, pond, etc. therein. The suit was filed when the defendant, who has land to the north, attempted to interfere with northern bund, the motor shed of the plaintiff therein and the coconut saplings planted on the bund.

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The defendant resisted the suit contending that the plaintiff has neither absolute title nor possession over the entire plaint schedule property including the tank, bund and coconut saplings on the bund, etc. According to him, the tank was not entrusted to the plaintiff or other tenants of Poomulli Mana alone and all the tenants around the plaint schedule property were drawing water and using the tank for bathing and washing purposes. He also contended that he has been drawing water to his lands through sluice in the northern bund.

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After considering the evidence on record, consisting of the oral testimony of P.Ws.1 and 2. D.W.1 and

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RSA.80/07-A :3:

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Exts.A1 to A4 and C1 to C3, the courts below concurrently found that the plaintiff has miserably failed to prove her exclusive title and possession over the plaint schedule property and thereby she is not entitled to get a prohibitory injunction against others including the defendant from trespassing into the plaint schedule property and using the common utility of the tank, bund, etc. for agricultural purposes, washing and bathing. The legality and correctness of the aforesaid findings have come up for consideration in this Regular Second Appeal, on the basis of the questions of law raised in this Appeal.

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Going by the findings in the impugned judgment itself, it could be seen that the plaintiff herself admitted that out of the total extent of 53 cents, half of the plaint schedule property belongs to the husband of the plaintiff, who is not a party in the original suit. She has filed the original suit for and on behalf of the husband also. To prove the claim of exclusive possession the plaintiff has relied on her own oral testimony and the oral testimony of P.W.2. But, after evaluating the oral testimonies of P.Ws.1

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RSA.80/07-A :4:

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and 2, the courts below found that the oral evidence of P.Ws.1 and 2 are mutually destructive and opposing. That apart, she relied on Ext.A3 possession certificate and Ext.A4 series tax receipt and Exts.C1 to C3 commission reports. Exts.A1 and A2 show that the plaint schedule property is designated as the property included in 'Bhagavathy Columb' in Sy.No.287/3. After analysing the aforesaid documentary evidence the courts below found that Ext.A4 series tax receipt would show that it relate to property in Mudikkunnampara. Even though a few survey numbers are also mentioned in the tax receipt, none of it refers to the property in Sy.No.287/3. The nomenclature of the plaint schedule property mentioned in Exts.A1 and A2 is also absent in Ext.A4. Thus, the courts below refused to rely on the documentary evidence produced by the plaintiff also. I do not find any kind of illegality or perversity in the aforesaid findings, whereby the courts below discarded Exts.A1 to A4.

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Coming to the commission reports, it could be seen that the Commissioner has unambiguously stated in

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RSA.80/07-A :5:

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Exts.C1 to C3 reports that people of the locality are also taking bath in the tank situated in the midst of the plaint schedule property and the tank was being used by public for washing, cleaning, bathing and also for washing cattle. In other words, the Commissioner has reported that the public at large were exercising their rights over the pond casting doubt on the claim of the plaintiff that it was exclusively used by her. The commission reports substantiate the case of the defendant that water from Malampuzha canal was collected in the pond, for the benefit of other people also. There is no provision for drawing water directly to the properties of the plaintiff alone from the tank. It has come out in evidence that contrary to the claim of the plaintiff, the sluice was meant for draining out excess water, which gets collected in the defendant's property and from there it flows to the paddy fields of other persons, lying on the northern side. Thus, it stands proved that the plaintiff has sought for injunction with respect to the properties which are not in exclusive possession and enjoyment of the plaintiff. The pond, tank,

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RSA.80/07-A :6:

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sluice, etc., are made for providing water to the other paddy lands also. In the above view, the courts below are justified in rejecting the prayer for injunction against the defendant and others. I do not find any kind of illegality, impropriety or perversity in the impugned judgments under challenge.

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It is made clear that this Court has not considered the issue relating to the title, since the suit was one for injunction simpliciter only, based on possession and this judgment will not stand in the way of a suit for declaration of title and the appellant also has the right to use the common facilities.

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This Regular Second Appeal will stand dismissed.

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Sd/K.HARILAL, Judge.

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okb

Kamalakshi v. Ramakrishnan

Case brief

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Kamalakshi v. Ramakrishnan

Case brief

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