Dismissed

Saidalavi v. Aboobacker

Kerala HC14 Dec 2023RSA/172/2022

Case brief

AI extract

What is this about?

In this Regular Second Appeal regarding a property dispute involving trespass and injunctions, the High Court of Kerala upheld the trial and appellate courts' decrees. The court found that the evidence regarding the existence of the property and demolition was properly appreciated, finding no error in the lower courts' findings on misappreciation of evidence.

What did the court decide?

The appeal was dismissed; interlocutory orders vacated and pending applications dismissed.

Saidalavi Vs Aboobacker — Property and Title | Kerala HC (2023)

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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 A. BADHARUDEEN

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THURSDAY, THE 14^TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945

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RSA NO. 172 OF 2022

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AGAINST THE DECREE AND JUDGMENT DATED 6.2.2016 IN AS.NO.27/2013 OF

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ADDITIONAL DISTRICT COURT - II, MANJERI

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AGAINST THE DECREE AND JUDGMENT DATED 31.1.2013 IN OS.NO.181/2006

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OF MUNSIFF COURT, MANJERI

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APPELLANT/4TH APPELLANT/6TH DEFENDANT:

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SAIDALAVI

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AGED 62 YEARS

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S/O. KALLITHODI MUHAMMED, KODIYAMPILAKKAL HOUSE,
KARIPPUR AMSOM AND DESOM, KUMMINIPARAMBU P.O., KONDOTTY
TALUK, MALAPPURAM DISTRICT,, PIN - 673638

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BY ADVS.
C.M.MOHAMMED IQUABAL
RAIHANATH T.H.
P.ABDUL NISHAD

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RESPONDENTS/1ST RESPONDENT & OTHER APPELLANTS/PLAINTIFF &

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DEFENDANTS 1 TO 3 AND 10:

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1ABOOBACKER
S/O. PARAMMAL AMBADI POCKER HAJI, KODIYAMPULAKKAL
VEEDU, KUMMINIPARAMBU P.O., KARIPPUR AMSOM AND DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT,, PIN - 673638

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2KABEER
S/O. THAZHATHU PALLIYALI ASSAIN HAJI, AGED 50 YRS,
KUMMINIPARAMBU P.O., KARIPPUR AMSOM AND DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 673638

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3VEERAN
S/O. THAZHATHU PALLIYALI ASSAIN HAJI, AGED 46 YRS,
KUMMINIPARAMBU P.O., KARIPPUR AMSOM AND DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT,, PIN - 673638

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4 FAROOKH

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S/O. THAZHATHU PALLIYALI ASSAIN HAJI, AGED 55 YRS,
KUMMINIPARAMBU P.O., KARIPPUR AMSOM AND DESOM,

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RSA NO. 172 OF 2022 2

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TIRURANGADI TALUK, MALAPPURAM DISTRICT,, PIN -
673638
5SUBAIR
S/O. THAZHATHU PALLIYALI ASSAIN HAJI, AGED 40 YRS,
KUMMINIPARAMBU P.O., KARIPPUR AMSOM AND DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT,, PIN -
673638
R1 BY ADVS.
G.HARIHARAN
PRAVEEN.H.
K.S.SMITHA
V.R.SANJEEV KUMAR
GENTLE C.D.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NO. 172 OF 2022 3

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JUDGMENT

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Dated this the 14^th day of December, 2023

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The 6^th defendant in O.S.No.181/2006 on the files of the Munsiff Court, Manjeri, is the appellant in this Regular Second Appeal, filed under Section 100(1) and Order XLII Rule 1 of the Code of Civil Procedure (for short 'the C.P.C.' hereinafter).

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Plaintiff and the other defendants are the respondents herein.

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Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents.

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I shall refer the parties in this appeal as 'plaintiff' and ‘defendants’ for convenience.

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At the time of admission, my predecessor, as per order, dated 16.12.2022, admitted this appeal, raising the following substantial question of law:

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Whether the judgment and decree passed by the courts below is perverse due to misappreciation of evidence?

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RSA NO. 172 OF 2022 4

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The plaintiff filed suit, seeking the relief of prohibitory injunction against trespass upon the plaint schedule property and also mandatory injunction, directing the defendants to reconstruct the portion of the compound wall, alleged to be demolished by the defendants with intention to widen the 4 ft. width way available on the northern side of the plaint schedule property. According to the plaintiff, the defendants trespassed upon the plaint schedule property on 24.7.2006 and demolished the portion of 8 ft. height granite wall existed therein.

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Defendants 2, 3, 5, 6 and 10 filed joint written statement and resisted the suit. Similarly, the 4^th defendant filed separate written statement. According to the defendants, a way, having 4 ft. width, is available on the northern side of the plaint schedule property and the plaintiff has no manner of right over the suit. According to the defendants, they did not demolish the compound wall, as alleged and the way in existence, having a width of 4 ft., has been in usage for the last 40 years.

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The trial court recorded evidence. PW1 was

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RSA NO. 172 OF 2022 5

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examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. Exts.C1 to C5 were marked as court exhibits.

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The trial court appreciated the evidence, mainly relying on the evidence available including Exts.C1 to C5. The specific case of the plaintiff before the trial court was that, on 24.7.2006, the defendants demolished a portion of the western boundary wall of the plaint schedule property in order to construct a way through the northern extremity of the plaint schedule property. As per Exts.C1 and C2 Commission Reports, the Commissioner categorically reported that, there existed a laterite wall, which would separate the portion of the house leased out by the plaintiff with the remaining portion of the plaint schedule property and a portion, at a length of 1.75 meter on the northern side of the said wall, was demolished. The Commissioner also reported that, the laterite stones removed from the said wall, were also kept in the plaint schedule property.

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DW1 examined in this case, is the 3^rd defendant. The 3^rd defendant given evidence that ownership of the property

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RSA NO. 172 OF 2022 6

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over which the way is claimed, vested with the plaintiff, plaintiff's wife and children. Further, DW1 admitted that the way on the northern side of the plaint schedule property is not a road maintained as per Panchayat or Village records.

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According to the learned counsel for the appellant/6^th defendant, when the plaintiff asserts title and possession of the plaint schedule property, it is the bounden duty of the plaintiff to prove the same, so as to get the reliefs prayed for. It is submitted that, in the case at hand, the plaintiff miserably failed in this endevour and therefore, merely relying on the evidence of DW1, decree could not be granted. As such, there is misappreciation of evidence in the case at hand and the property of the plaintiff should be identified with certainty.

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Per contra, the learned counsel for the plaintiff submitted that the trial court vehemently appreciated the evidence available including that of PW1 and DW1 along with the Commission Report and found existence of compound wall and attempt on the part of the defendants to demolish a small portion of the same. Accordingly, decree for permanent

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RSA NO. 172 OF 2022 7

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prohibitory injunction against trespass upon the plaint schedule property as well as mandatory injunction to reinstate the compound wall, which was demolished by the defendants, was granted. The learned counsel given emphasis to the observation of the appellate court in paragraph No.14 of the judgment in this regard. He also submitted that the decree was executed and the challenge raised by the defendants while executing the decree reached upto this Court, by way of O.P. (Civil).No.177/2022 and this Court dismissed the O.P.(Civil) and Annexure A7 produced in this appeal is copy of the said judgment. It is submitted further that the plaint schedule property identified with certainty and decree was executed.

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In this matter, as per Exts.C1 Commission Report and C2 rough sketch, it is emphatically clear that there existed a laterite wall, which would separate the portion of the house leased out by the plaintiff with the remaining portion of the plaint schedule property and a portion, at a length of 1.75 meter on the northern side of the said wall, was demolished and the laterite stones removed from the said wall, was also kept in the plaint schedule property. It is relevant to note that

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RSA NO. 172 OF 2022 8

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defendants are aggrieved in this matter on the ground that, because of construction of compound wall and execution of the decree, thereafter by the trial court, the way was obstructed. Even though the learned counsel for the appellant/6^th defendant vehemently argued that the said road is a Panchayat road, even remotely in the written statements separately filed by the defendants, no such contention raised. No evidence also forthcoming to see the status of the way on the northern side of the plaint schedule property as a public way, in any manner.

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To the contrary, the admission of DW1 is that the way is the property of the plaintiff, his wife and children.

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It is true that, when there is identification of dispute as regards to the plaint schedule property, it should require identification by the manner known to law. There is no hard and fast rule that identification must be always by appointing a Survey Commissioner. If the identification otherwise is possible, local commission report itself would suffice the requirement in the matter of identification. Here, as per the report of the Commissioner, it is emphatically clear that the

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RSA NO. 172 OF 2022 9

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Commissioner found existence of the wall intact only with a rider that there was demolition at a length of 1.75 meter. So, the plaint schedule property is well identified by Exts.C1 and C2 and the court below granted decree on finding that apprehension of trespass, at the instance of the plaintiff, stood proved. Thus, it appears that the trial court rightly granted decree and the appellate court confirmed the same on reappreciation of evidence.

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In view of the above discussions, the substantial question of law answered, holding that the courts below did not went wrong in appreciating the evidence in any manner and the courts below granted decree on properly appreciating the evidence to the manner known to law. Thus, the concurrent verdicts rendered on properly appreciating and reappreciating evidence, do not require any interference in this second appeal. Consequently, the appeal must fail.

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In the result, this appeal fails and is dismissed.

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All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

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RSA NO. 172 OF 2022 10

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Registry shall inform this matter to the trial court as well as

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the appellate court, forthwith.

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Sd/-

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A. BADHARUDEEN JUDGE

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RSA NO. 172 OF 2022 11

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APPENDIX OF RSA 172/2022

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`PETITIONER’S ANN`	`EXURES`
`ANNEXURE A1`	`THE TRUE COPY OF THE ORDER IN` `E.P.NO.315/2018 IN O.S.NO. 181/2006 OF THE` `MUNSIFF COURT, MANJERI DATED 23.1.2020`
`ANNEXURE A2`	`THE TRUE COPY OF THE ORDER IN` `I.A.NO.1853/2018 IN O.S.NO. 284/2018 OF` `THE MUNSIFF COURT, MANJERI DATED 26.9.2018`
`ANNEXURE A3`	`THE TRUE COPY OF E.A.NO.1/2020 IN E.P.NO.` `315/2018 IN O.S.NO.181/2006 OF THE MUNSIFF` `COURT, MANJERI DATED 31.1.2020`
`ANNEXURE A4`	`THE TRUE COPY OF THE JUDGMENT IN O.P.` `(C).NO.938/2020 OF THIS HON'BLE COURT` `DATED 16.9.2021`
`ANNEXURE A5`	`THE TRUE COPY OF THE ORDER IN E.A.NO.` `1/2020 IN E.P.NO.315/2018 IN O.S.NO.` `181/2006 OF THE MUNSIFF COURT, MANJERI` `DATED 13.12.2021`
`ANNEXURE A6`	`THE TRUE COPY OF THE ORDER IN E.P.NO.` `315/2018 IN O.S.NO.181/2006 OF THE MUNSIFF` `COURT, MANJERI DATED 19.1.2022`
`ANNEXURE A7`	`THE TRUE COPY OF THE JUDGMENT IN O.P.` `(C).NO.177/2022 OF THIS HON'BLE COURT` `DATED 28.1.2022`

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RESPONDENTS’ ANNEXURES : NIL

Saidalavi v. Aboobacker

Case brief

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Saidalavi v. Aboobacker

Case brief

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