RSA No. 631 of 2004, Poolakkal Kathiyumma v. Poolakkal Maimoona & Another (Regular Second Appeal)
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- M. R. Anitha
- Judgment Date
- 2022-12-12
- Court Decision / Holding
- Appeal dismissed in limine; no substantial question of law; finding that plaint A schedule property description is not correct and plaintiff failed to prove possession; the decisions of the trial and first appellate courts are upheld.
- Final Disposition
- Appeal dismissed in limine, no substantial question of law; findings of lower courts upheld,
Parties to the Case
Appellants / Petitioners
- Poolakkal Kathiyumma
- Addl. Appellants Nos. 2 to 9 (legal heirs of the deceased sole appellant)}},
- lawyers
- lawyers_presenters
- lawyers
- lawyers
- applicants
- respondents
- lawyers
- applicants
- respondents
- arguments
- Brief summarised arguments for applicants
- landlords
Respondents
- Poolakkal Maimoona
- Kunnummal Muhammed Siddique
Legal Representation & Advocates
Counsels for Petitioners
- • K. M. Sathyanatha Menon
- • P. Chandrasekhar
- • K. K. Mohamed Ravuf
- • Satheesh V. T.
- • Manjari G.B.
Counsels for Respondents
- • T. Krishnan Unni
- • Saju S.A.
- • P. M. Zafarulla
Case Synopsis & Summary
This Regular Second Appeal arises from a suit for permanent injunction (O.S.216/1985, Munsiff, Parappanangadi) by Poolakkal Kathiyumma and legal heirs seeking to restrain the defendants from trespassing into the plaint A schedule property, to protect an old azhu boundary on the northern side, and to enforce possession. The plaintiff claimed that plaint A schedule property, including plaint B schedule land allotted to the plaintiff’s father in a 1953 partition (and later registered), formed part of the plaintiff’s share; the oral partition of the plaintiff’s father in 1962 is central to their title. The defendants argued that the plaint A schedule property lies in Pulikkal village and is described by different survey numbers (including a portion of 74/1A in Pulikal), with the B schedule land being the share of the mother of the 1st defendant. The trial court dismissed the suit; the first appellate court upheld dismissal. In this Second Appeal, the High Court examined whether there is a substantial question of law. It found that the plaint A schedule description is not correct, and the properties claimed by the plaintiff do not correspond to the title or tax records (Ext.A1, Ext.A6, Ext.C3–C4; Ext.A2–A4). The evidence failed to prove possession of the alleged land. Consequently, no substantial question of law was made out, and the appeal was dismissed in limine. The court reaffirmed that interference under Section 100 CPC requires perversity or a demonstrably plausible, non-perverse view, which was not satisfied here.
Provisions of Law Cited
Legal Doctrines & Maxims
- Interference in second appeal under Section 100 CPC is permissible only in cases of perversity (State of Rajasthan v. Shiv Dayal)
- If the view taken is plausible and findings are not perverse, there is no requirement of a substantial question of law (C. Doddanarayana Reddy v. C. Jayarama Reddy)
- Onus on the plaintiff in an injunction suit to prove possession and title to the property (possession as a predicate for relief)
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellants contend that plaint A schedule corresponds to their rightful share, derived from Ext.A1 partition deed and the oral partition of the plaintiff's father; they assert the old azhu on the northern boundary encroaches upon the property described in A schedule and that Ext.A6 F schedule and Ext.A1 clearly indicate the property in dispute belongs to the plaintiff’s family. They rely on superior title via partition deeds and tax records (Ext A2–A4) that show land associated with Cherukavu and not Pulikal village, seeking a permanent injunction to prevent trespass and preserve possession. They argue that the Courts below erred in describing the property and in accepting a description that excludes the plaintiff’s title, thus justifying interference under Section 100.
Contentions of Respondents
The respondents submit that plaint A schedule lies in Pulikkal village and corresponds to land described in survey No. 74/1A and 74/2-1A, with Ext.B3–B4 tax receipts supporting their possession. They assert the plaintiff never had title to A schedule land, the boundary azhu is disputed, and Ext.C3–C4 commission plans show the disputed area belongs to the respondents. They rely on the evidence in Ext.A1 and Ext.A6 showing different survey numbers, arguing that the plaintiff has failed to prove possession or a legally cognizable interest to restrain trespass.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| State of Rajasthan and Others v. Shiv Dayal & Another | (2019) 8 SCC 637 | Positive | Supports the principle that Section 100 interference by a High Court in second appeal is permissible only in cases of perversity. |
| C. Doddanarayana Reddy by Legal Representatives & Others v. C. Jayarama Reddy by Legal Representatives & Others | (2020) 4 SCC 659 | Positive | Clarifies that where the view is plausible and non-perverse, there is no requirement of a substantial question of law for intervening under Section 100. |
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