Partly allowed

Jalal and Another v. Subramoniam and Others

Kerala HC8 Jul 2019RSA/796/2011

Case brief

AI extract

What is this about?

The High Court modified a lower court decree in a suit for declaration of title and injunction regarding government land used as a crematorium. The declaration of title was set aside, and a permanent prohibitory injunction was granted instead. Cross appeals were partly allowed.

What did the court decide?

Declaration of title set aside; decree modified to grant permanent prohibitory injunction as prayed for.

Jalal and Another Vs Subramoniam and Others — Partition | Kerala HC (2019)

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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.SOMARAJAN

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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RSA.No.796 of 2011

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JUDGMENT IN AS 90/2007 of ADDITIONAL SUB COURT, IRINJALAKUDA, DATED 27-05-2011

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JUDGMENT IN OS 153/2005 of MUNSIFF COURT, CHALAKUDY, DATED 30-06-2007

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 JALAL, S/O.OLAKKODAN PAREED, AGED 56, OLAKKODAN HOUSE, KALLUR THEKKUMURI VILLAGE, KORATTY SOUTH P.O., PIN - 680 308.

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2 KADEEJA, W/O.OLAKKODAN PAREED OLAKKODAN HOUSE, KALLUR THEKKUMURI VILLAGE, KORATTY SOUTH P.O., PIN - 680 308.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.M.A.MOHAMMED SIRAJ SRI.P.MARTIN JOSE SRI.P.PRIJITH

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RESPONDENTS/RESPONDENTS 1-3 & 3RD APPELLANT/PLAINTIFF & ADDL. DEFENDANTS 3-5:

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1 SUBRAMONIAM

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S/O.MULLAMKUZHY MAHADEVA IYER, WEST KORATTY DESOM, KORATTY VILLAGE,MUKUNDAPURAM TALUK, PIN680308.

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-2-:

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2 GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, AYYANTHOLE P.O., THRISSUR, PIN-680003.

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3 ANNAMANADA GRAMA PANCHAYATH ANNAMANADA, REPRESENTED BY ITS SECRETARY PIN-680741.

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4 THE VILLAGE OFFICER KALLUR THEKKUMMURI, KORATTY SOUTH P.O., PIN - 680 308.

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BY ADVS.

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SRI.O.D.SIVADAS, SC, ANNAMANADA GRAMA PANCHAYATH SRI.K.P.MADHU, GOVERNMENT PLEADER SRI.K.G.BALASUBRAMANIAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, ALONG WITH C.O.49/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-3-:

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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.SOMARAJAN

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MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

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CO.No.49 of 2012 IN RSA. 796/2011

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JUDGMENT IN AS 90/2007 of ADDITIONAL SUB COURT,IRINJALAKUDA DATED 27-05-2011

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JUDGMENT IN OS 153/2005 of MUNSIFF COURT, CHALAKUDY DATED 30-06-2007

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PETITIONER/CROSS OBJECTOR:

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ANNAMANNADA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY ANNAMANNADA, REPRESENTED BY ITS SECRETARY

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BY ADV. SRI.FRANCO T.J.

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RESPONDENTS/RESPONDENTS:

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1 JALAL AGED 56 YEARS S/O OLAKKODAN PAREED, OLAKKODAN (H), KALLUR KIZHAKKUMMURI VILLAGE OFFICE, KORATTY (S) P.O., PIN:680 308.

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2 KADEEJA W/O OLAKKODAN PAREED, OLAKKODAN (H), KALLUR KIZHAKKUMMURI VILLAGE OFFICE, KORATTY (S) P.O., PIN:680 308.

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-4-:

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3 SUBRAMANIAN

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AGED 60 YEARS S/O MULLANKUZHY, MAHADEVA IYER, WEST KORATTY (DES), KORATTY VILLAGE OFFICE, MUKUNDAPURAM TALUK.

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4 GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR, AYYANTHOLE P.O., THRISSUR.

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5 THE VILLAGE OFFICER KALLOOR THEKKUMMURI, KORATTY SOUTH P.O., PIN:680 308.

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THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, ALONG WITH RSA.796/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-5-:

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J U D G M E N T

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The defendant Nos.1 and 2 came up with this

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appeal, aggrieved by the decree and judgment of the

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Trial Court as well as by the First Appellate Court. A cross objection also was preferred by the respondent No.3 so far the decree and judgment against them. The suit is one for declaration of title and injunction over 31 cents of property comprised in Survey No.98/3. Admittedly, it is a Government puramboke land, but was in possession and enjoyment of a Brahmin community and the same was used as a crematorium. It has also find a place in revenue records, wherein this property is stated as 'puramboke graveyard'. Defendant Nos.1 and 2 are the eastern property owners. There is a thodu on the north-south direction lying adjoined to the property of defendants 1 and 2. There is a southern pathway being used by defendants 1 and 2 as means

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-6-:

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to access to the plaint schedule property. Earlier

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the plaintiff instituted a suit in O.S.No.980/1992 for injunction against the present defendant and KSEB, not to draw any electric line through his property. But that suit was dismissed by both the Trial Court and the First Appellate Court. It was taken up in second appeal and under Ext.A1 judgment, this Court granted a stay not to do anything on the pathway claimed by D1 and D2 by its judgment dated 2.7.2004. The plaintiff was allowed to file a suit within nine months from the date of

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disposal of the judgment and accordingly the

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present suit was filed by the plaintiff on 1.4.2005. Originally the suit was filed against 1^st and 2^nd defendants and the officials D3 to D5 were additionally impleaded after compliance of the requirement under Section 80 of CPC by issuing

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Ext.A9 demand notice, for which, Ext.A10 reply was issued. The Panchayat was also impleaded after the

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-7-:

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compliance of requirement under Section 249 of the Panchayat Raj Act. Now the appeal is preferred by the 1^st and 2^nd defendants on the ground that this

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property was lying as a graveyard and it is a puramboke land owned by the Government and as such, there cannot be a declaration of title with the plaintiff and that both the Trial Court and the

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First Appellate Court went wrong in appreciating the legal position.

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It is true that there is no title vested

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with the Brahmin Samajam-the plaintiffs. It is only a Government puramboke land but being used as a crematorium by the members of the Brahmin Community by possessing and enjoying the same as crematorium and it was consented to by the Government, which is

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well evident from the fact that they are maintaining the crematorium. So the decree granted by both the Trial Court and the First Appellate

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Court declaring the title over the property is

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R.S.A.NO.796 of 2011 & CROSS OBJECTION NO.49 OF 2012 :-8-:

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liable to be modified by granting a lesser relief

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that they are holding the property for the purpose

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of maintaining the crematorium and the

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consequential injunction as prayed for.

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The appeal and the Cross Objection are

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accordingly allowed in part. The decree and judgment of the lower courts are modified by granting a decree of permanent prohibitory injunction as prayed for. The declaration granted by the courts below are hereby set aside, modifying the decree by confirming the grant of decree of

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permanent prohibitory injunction as prayed for. No cost.

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All pending interlocutory applications are

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closed.

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Sd/-

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P.SOMARAJAN JUDGE

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ami/

Jalal and Another v. Subramoniam and Others

Case brief

What is this about?

What did the court decide?

Jalal and Another v. Subramoniam and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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