Partly allowed

Mohammedkutty (Died) v. Prambil Akbar Ali

Kerala HC16 Jul 2019RSA/1211/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, setting aside the impugned judgments of lower courts. The court held that issuing a survey commission to locate a dispute boundary is impermissible in a suit for injunction simplicitor. It remanded the matter for fresh disposal, permitting amendment to include prayers for fixation of boundary and declaration.

What did the court decide?

The appeal allowed in part; decree and judgment of both courts below set aside; matter remanded to trial court for fresh disposal after amendment.

Mohammedkutty (Died) Vs Prambil Akbar Ali — Property and Title | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

¶5

RSA.No.1211 of 2010

¶6

AGAINST THE DECREE AND JUDGMENT IN AS 79/2004 of ADDITIONAL DISTRICT COURT (ADHOC-II), MANJERI DATED 27-07-2010

¶7

AGAINST THE DECREE AND JUDGMENT IN OS 139/2001 of MUNSIFF MAGISTRATE COURT,PERINTHALMANNA DATED 31-03-2004

¶8

APPELLANT/RESPONDENT/PLAINTIFF:

¶9

1 MOHAMMEDKUTTY (DIED) LRS IMPLEADED S/O KAKKENGAL CHERIYA SAIDALIKUTTY, PUZHAKKATTIRI AMSOM, KADUNGAPURAM DESOM, PERINTHALMANNA TALUK

¶10

ADDITIONAL APPELLANTS

¶11

2 KHADEEJA AGED 69 YEARS W/O. LATE MOHAMMEDKUTTY.

¶12

3 SAIDALIKUTTY AGED 54 YEARS S/O. LATE MOHAMMEDKUTTY.

¶13

4 MOIDU AGED 52 YEARS S/O. LATE MOHAMMEDKUTTY.

¶14

5 USMAN AGED 50 YEARS S/O. LATE MOHAMMEDKUTTY.

¶15

6 BASHEER AGED 48 YEARS S/O. LATE MOHAMMEDKUTTY.

¶16

7 MUSTHAFA AGED 46 YEARS S/O.LATE MOHAMMEDKUTTY.

¶17

8 MUHAMMED AGED 33 YEARS S/O. LATE MOHAMMEDKUTTY

¶18

R.S.A.NO.1211/2010

¶19

¶20

(ALL ARE RESIDING AT PUZHAKKATTIRI AMSOM, KADUNGAPURAM DESOM, PERINTHALMANNA TALUK).

¶21

(ADDL. APPELLANTS 2 TO 8 IMPLEADED BEING THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER THE ORDER DATED 26.11.13 IN I.A.3132/13)

¶22

BY ADVS.

¶23

SRI.T.SETHUMADHAVAN

¶24

RESPONDENTS ( APPELLANTS/DEFENDANTS):

¶25

1 PRAMBIL AKBAR ALI AGED 36 YEARS S/O. KUNHARMU, RESIDING AT KARICHAPPAT DESOM IN KURUVA AMSOM, PERINTHALMANNA TALUK, PIN-679 301.

¶26

2 PRAMBIL JAMEELA AGED 41 YEARS W/O K.HAMZA, RESIDING AT THELAKKAD DESOM, VATTATHUR AMSOM, PERINTHALMANNA TALUK, PIN-679 301.

¶27

3 PRAMBIL RAZIYA AGED 43 YEARS W/O MOIDEENKUTTY, RESIDING AT RANDATHANI, TIRUR AMSOM, TIRUR TALUK-679 301.

¶28

BY ADVS.

¶29

SMT.PRABHA R.MENON FOR R1 TO R3 SRI.M.KRISHNAKUMAR FOR R1 TO R3

¶30

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.NO.1211/2010

JUDGMENT

The plaintiff came up with this appeal aggrieved by

¶35

the divergent finding of the first appellate court in dismissing the suit for the grant of prohibitory injunction against tresspass. It was granted by the trial court, but in appeal, it was reversed. The plaintiff claims title over the property based on Ext.A1 document of the year 1957. But the document is styled as assignment of Kanam lease. Though there is a pleading in the plaint that there is Varambu separating the property of the plaintiff from that of the defendant, the Commissioner who visited the property could not find any boundary marks or Varambu. Consequently, the suit was dismissed by the first appellate court without granting prohibitory

¶36

injunction.

¶37

The questions came up for consideration is whether it is permissible to grant prohibitory injunction against tresspass without ascertaining the boundary in existence and whether it is permissible to locate the boundary with the help of a surveyor in a

¶38

R.S.A.NO.1211/2010

¶39

¶40

mere suit for injunction simplicitor.

¶41

Though the plaintiff has pleaded existence of

¶42

boundary separating his property from that of the defendant, nothing comes forth from the report of the Commissioner with respect to the existence of any separating boundary marks or boundary structures without which no decree for prohibitory injunction against tresspass can be issued. It is impermissible in a suit for injunction simplicitor to issue a survey commission to locate the boundary when it is under dispute.

¶43

At this juncture, the learned counsel for the appellant submitted that he is intending to amend the plaint by incorporating a prayer for fixation of boundary and declaration. A subsequent suit for fixation of boundary and declaration is not barred as the present suit is defective as it was only for the grant of prohibitory injunction without showing the existence of a permanent boundary separating the properties and without substantial prayer for fixation of boundary. Since a second suit is not barred, it is quite permissible to allow the plaintiff to amend the

¶44

R.S.A.NO.1211/2010 5

¶45

suit for incorporating substantial prayers. For that

¶46

purpose, the decree and judgment of both the courts below are hereby set aside and the matter is remanded back to the trial court for fresh disposal.

¶47

The appeal is allowed in part. The parties shall appear before the trial court on 29/07/2019. No order as to costs of appeal.

Sd/-

P.SOMARAJAN

JUDGE

Mohammedkutty (Died) v. Prambil Akbar Ali

Case brief

What is this about?

What did the court decide?

Mohammedkutty (Died) v. Prambil Akbar Ali

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kunhilaxmi Vs Tharakkal Estate Revr.Adv.T.Ravisankar

Mathai Mathai Vs Monachan Alias Thomas Varghese

Kesava Panicker Madhusoodanan Vs Kesava Panicker Viswambharan

A.a.Salam Vs Sujeer Anand Nayak

Smt.Thanka, Vs Thampi Mohammed

Rajan Vs Subramaniyan