High Court of KeralaSingle JudgeAppeal dismissed in limine, no substantial ques...

RSA No. 631 of 2004, Poolakkal Kathiyumma v. Poolakkal Maimoona & Another (Regular Second Appeal)

Case / Petition Number:RSA No. 631 of 2004

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

Section 100 of the Code of Civil Procedure, 1908

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 NameCitationTreatmentExplanation
State of Rajasthan and Others v. Shiv Dayal & Another(2019) 8 SCC 637PositiveSupports 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 659PositiveClarifies that where the view is plausible and non-perverse, there is no requirement of a substantial question of law for intervening under Section 100.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against RSA No. 631 of 2004, Poolakkal Kathiyumma v. Poolakkal Maimoona & Another (Regular Second Appeal) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944** ## **RSA NO. 631 OF 2004** **AGAINST THE ORDER/JUDGMENTAS 19/1994 OF SUB COURT, TIRUR** **OS 216/1985 OF MUNSIFF COURT ,PARAPPANANGADI** **APPELLANT/(APPELLANT/PLAINTIFF):** - 1 POOLAKKAL KATHIYUMMA, (DIED) (ADDL.APPELLANTS 2 TO 9 IMPLEADED) W/O. MUNDOLI KUNHIMOITHEEN, D/O.POOLAKKAL AHAMMED KUTTY, AGED 48 YEARS, R/O. NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 2 ADDL.A2 MOIDEEN, S/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 3 ADDL.RASIYABI, D/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 4 ADDL.ABDUL NAZAR, S/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 5 ADDL.HAJIRA, D/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 6 ADDL.FATHIMA, D/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 7 ADDL.ABDUL KHADER, S/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 8 ADDL.RUKHIYA, D/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - 9 ADDL.ABDURAHIMAN, S/O.POOLAKKAL KATHIYUMMA, NALLALAM AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. R.S.A NO. 631 OF 2004 **2** (LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 9 AS PER ORDER DATED 07.02.2012 IN IA.466/2012.) BY ADVS. K.M.SATHYANATHA MENON P.CHANDRASEKHAR K.K.MOHAMED RAVUF SATHEESH V.T. MANJARI G.B. ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 POOLAKKAL MAIMOONA, AGED 33 YEARS, D/O. POOLAKKAL MAMMEDKUTTY, KONDOTTY AMSOM,, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2 KUNNUMMAL MANATT MUHAMMED SIDDIQUE, AGED 38 YEARS, S/O. KUNNUMMAL MANATT MUHAMMEDKUTTY HAJI, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK,, MALAPPURAM DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI SRI.SAJU.S.A SRI. P.M.ZAFARULLA ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** ## **12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A NO. 631 OF 2004 **3** ## **JUDGMENT** ## **Dated this the 12[th] day of December, 2022.** Appellant is the plaintiff in O.S.No.216/1985 on the file of Munsiff's court, Parappanangadi. The suit was one for permanent injunction for restraining the defendants from trespassing into plaint A schedule property and destroying the azhu on the northern boundary of the property and interfering with the possession of the plaintiff over the property. Plaint B schedule property had been set apart to the share of the plaintiff's father in the oral partition occurred on 18.05.1953. Subsequently that was registered in the year 1948 and plaint B schedule is shown as item No.6 in plaint A schedule of that partition deed. Father of the plaintiff died in the year 1961 and his legal heirs partitioned his properties in the year 1962 orally. Plaint A schedule property was set apart to the plaintiff. It is a part of plaint B schedule property. There is an old azhu on the northern boundary of the plaint A schedule property. The property of the 1st defendant is situated R.S.A NO. 631 OF 2004 **4** on the immediate northern side of the plaint A schedule property. On 21.09.1985, 2nd defendant, husband of the 1st defendant attempted to demolish the azhu on the northern boundary of the plaint A schedule property and to trespass into that property. Due to timely intervention of the brothers of the plaintiff, their attempt was failed. Plaintiff further apprehends trespass at the instance of the defendants and hence the suit has been filed. 2. Defendants filed written statement contending that plaint A schedule property is situated in Pulikkal Village. Northern boundary of plaint A schedule property is described as azhu with a view to grab the property of the 1st defendant. Property described in plaint A schedule is comprised in Resurvey No.74/2, 1A in Pulikal Village. Plaintiff or their predecessor never had any right or possession over the property comprised in that survey number. It is a property set apart to the share of the mother of the 1st defendant in the partition deed No.1468/54 shown as item No.6 in the E schedule of that partition deed. 2nd thak of that property was gifted to the 1st defendant by her mother and is the his R.S.A NO. 631 OF 2004 **5** possession of the 1st defendant. Plaintiff has no right over that property. 3. PW1 and PW2 examined and Exts.A1 to A6 were marked from the side of the plaintiff. DW1 and DW2 examined and Exts.B1 to B9 were marked from the side of the defendant. Exts.C1 to C4 also marked. 4. Trial court on appreciating the facts and circumstances and evidence adduced, dismissed the suit. Against which, plaintiff filed appeal and the 1st appellate court by the impugned judgment, confirmed dismissal of the suit by the learned Munsiff. Having failed in both forums, appellant approaches this Court in this 2nd appeal. 5. Heard the learned counsel for the appellant. Needless to say that this Court can interfere in 2nd appeal only on satisfaction of the existence of any substantial question of law for determination. 6. In _**State of Rajasthan and Others v. Shiv Dayal & Another**_ R.S.A NO. 631 OF 2004 [(2019) 8 SCC 637], a Two Judge Bench of the Apex court has held that interference under Section 100 on concurrent findings of two courts below interference is permissible only in perversity. In _**C.Doddanarayana Reddy by Legal Representatives & Others v. C. Jayarama Reddy by Legal Representatives & Others**_ [(2020) 4 SCC 659], again a Two Judge Bench of the Apex Court held that when the view taken is a plausible view and findings of fact are not perverse, there is no requirement of existence of any substantial question of law. 7. In this case, suit is one for simple injunction and the contention of the defendant is that plaintiff has no title over plaint A schedule property. Ext.A1 is the partition deed by which plaintiff's father obtained B schedule property and it is alleged that as per oral partition, plaint B schedule property is included as item No.6 in A schedule of Ext.A1. Survey Number of the property shown in Ext.A1 document are comprised in resurvey No.242 and 243/1 and 2 of Cherukavu Village. After the amendment of the plaint, plaint B schedule property is shown as situated in R.S.A NO. 631 OF 2004 **7** Cherukavu Village as well as Pulikal Village and survey numbers is shown as 242 and 243/1 and 2 as well as 74/1A. It has been found by the courts below that Ext.A1 does not show any property comprised in survey 74/1A in item No.6 which is alloted to the plaintiff's share. So it was found that the description of plaint B schedule is not correct. 8. It is further found that plaintiff obtained property shown as item No.6 in A schedule of Ext.A1 by virtue of Ext.A6 document as F schedule in item No.1 of Ext.A6. In that document also property is shown as situated in survey No.242 and 243/1 and 2. It has been found by the courts below that document also does not show that plaintiff obtained any property comprised in resurvey No.74/1A of Pulikal Village. So it was found that description of plaint A schedule property is not correct. 9. The case of the plaintiff is that there is an old azhu on the northern boundary of plaint A schedule property it has been found by the 1st appellate court that there is an old azhu on the A B line R.S.A NO. 631 OF 2004 **8** in Ext.C3 plan and as per Ext.C4 report of the commissioner. The disputed property is shown in Ext.C3 plan as A B C D but the commissioner reported that A B C D plot is comprised in resurvey No.74/IA of Pulikal Village. So it has been found by the Courts below that it cannot be found as a property obtained by the father of the plaintiff as per Ext.A1 or a property obtained by the plaintiff as per Ext.A6. Tax receipts Ext.A2 to A4 also would reveal payment of tax with respect to the property comprised in Cherukavu Village and does not pertain to a property situated in Pulikal Village. 9. So in effect plaintiff has sought for injunction with respect to a property which is actually not covered by his title deed or tax receipts. On the other hand, Exts.B3 and B4 tax receipts produced from the side of the defendant are with respect to the property comprised in resurvey No.74/2-1A of Pulikal village. So that would probabilise the defendant's case that they were in possession and enjoyment of the property comprised in resurvey No.74/2-1A of Pulikal Village. It has also come out that A schedule property is a barren rocky land and part of a hill. It has been found by the Trial R.S.A NO. 631 OF 2004 **9** court that from the evidence of PW1 and PW2 it is difficult to believe that the plaintiff is in possession of the disputed property and it is also found that the document produced by the plaintiff would probabilse that A schedule property is not included in B schedule property. So, it has been concurrently found by the courts below that the plaintiff failed to prove the possession and enjoyment of plaint A schedule property. So I do not find any substantial question of law emerging for consideration. Hence, appeal is found to be devoid of any merit and accordingly, dismissed in limine. Sd/- rps/ **M.R.ANITHA, JUDGE**