Dismissed

Chandrika v. Kunhumuhammed

Kerala HC3 Oct 2018SA/52/1999

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for injunction, the High Court of Kerala upheld the concurrent findings of lower courts that the appellant lacked exclusive possession of the property. The Court dismissed the appeal as devoid of merits, refusing to interfere with permissible factual findings, while noting the appellant remains free to institute action based on title.

What did the court decide?

The second appeal was dismissed with a clarification that the plaintiff may institute appropriate action on the basis of title.

Chandrika Vs Kunhumuhammed — Property and Title | Kerala HC (2018)

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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 P.B.SURESH KUMAR

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WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940

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SA.No. 52 of 1999

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AGAINST THE JUDGMENT AND DECREE DATED 23.10.1992 IN OS 51/1985 of MUNSIFF COURT, OTTAPPALAM

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AGAINST THE JUDGMENT AND DECREE DATED 23.07.1998 IN A.S. NO.94/1992 OF COURT OF SUBORDINATE JUDGE, OTTAPALAM

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APPELLANT/PLAINTIFF/APPELLANT:

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1. * CHANDRIKA D/O PALLIYALIL KARAPPAN KARAKKAD AMSOM AND DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT (DIED)

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SUPPLEMENTAL APPELLANTS

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2. SMITHA, AGED 42 YEARS, D/O LATE CHANDRIKA & GRAND DAUGHTER OF PALLIYALI KARAPPAN, KARAKKAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT

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3. SINDHU, AGED 38 YEARS, D/O LATE CHANDRIKA & GRAND DAUGHTER OF PALLIYALI KARAPPAN, KARAKKAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT

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4. SANTHOSH, AGED 32 YEARS, S/O LATE CHANDRIKA & GRAND SON OF PALLIYALI KARAPPAN, KARAKKAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT.

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*** THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 4 AS PER ORDER DATED 7/8/2017 IN I.A. NO. 2055/2017.**

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BY ADV.

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SRI.G.SREEKUMAR (CHELUR)

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RESPONDENTS/DEFENDANTS 2 TO 7/RESPONDENTS:

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*1. KUNHUMUHAMMED (DIED) S/O KALATHUMPADIKKAL SRAJU HAJI, KULAPPULLY AMSOM AND DESOM, P.O. SHORANUR-2, OTTAPALAM TALUK, PALAKKAD DISTRICT

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SA.No. 52 of 1999

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**2. AMMUKUTTY, W/O PORUTHUYIL RAMANKUTTY VAIDYAR, DO - DO 3. KARUNAKARAN VAIDYAR, (DIED) S/O PORUTHIYIL RAMANKUTTY VAIDYAR, DO - DO 4. SADANANDAN ALIAS ANANDAN (DIED) S/O DO - DO DEVAYANI D/O DO - DO PRASANNAKUMARI ALIAS BABY D/O DO - DO

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA.No. 52 of 1999

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JUDGMENT

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The plaintiff in a suit for injunction is the appellant in the second appeal. The case of the plaintiff is that she is in possession of the plaint schedule property and the defendants, who are holding the property on the north of the plaint schedule property, are attempting to use a portion of the plaint schedule property as a pathway. The trial court found that there exists a pathway through the plaint schedule property and that the case of the plaintiff that she is in exclusive possession of the plaint schedule property is incorrect. Consequently, the suit was dismissed. Though the plaintiff took up the matter in appeal, the appellate court confirmed the decision of the trial court. The plaintiff is aggrieved by the decisions of the courts below. Hence, the second appeal.

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Heard the learned counsel for the appellant.

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The suit being one for injunction, the question to be considered is as to whether the plaintiff has established that she is in exclusive possession of the plaint schedule property. The courts below concurrently found that the plaintiff is not in exclusive possession of the property. The said finding, being on a question of

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SA.No. 52 of 1999

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fact, cannot be interfered with by this Court in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure, 1908, unless it is perverse. It is not demonstrated that the concurrent findings impugned in the second appeal are perverse.

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The second appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. It is however, made clear that this judgment will not preclude the plaintiff from instituting appropriate action on the basis of title.

Sd/-

P.B.SURESH KUMAR

JUDGE

SKS

Chandrika v. Kunhumuhammed

Case brief

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Chandrika v. Kunhumuhammed

Case brief

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