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2022 Supreme(Online)(KER) 29134
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 27TH DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 RSA NO. 710 OF 2019 AGAINST THE ORDER/JUDGMENT IN AS 1/2019 OF SUB COURT, ALAPPUZHA OS 152/2011 OF MUNSIFF COURT,CHENGANNUR APPELLANTS/APPELLANT/PLAINTIFF/COUNTERCLAIM DEFENDANT:
ABDUL KHADAR AGED 66 YEARS S/O THARAKAN MUSTHAFFA, MODI MELATHIL, PUNTHALA ERAM, VENMONY, CHENGANNUR, ALAPPUZHA BY ADV P.VINODKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS/COUNTERCLAIM PLAINTIFFS:
1 HUSSAIN RAWTHER AGED 66 YEARS S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509
2 HABEEB AGED 69 YEARS S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509
3 SHAJAHAN(DIED)
AGED 56 YEARS S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509
4 SALEENA BEEVI AGED 49 YEARS W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509
5 RASHID SHAJAHAN (MINOR)
AGED 15 YEARS S/O. LATE SHAJAHAN, REP BY HIS MOTHER SALEENABEEVI, AGED 49 YRS, W/O LATE SHAJAHAN, KUTTIKIZHAKKETHIL,VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 BY ADV SRI.N.ASHOK KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH RSA.720/2019, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 27TH DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 RSA NO. 720 OF 2019 AGAINST THE ORDER/JUDGMENT IN AS 2/2019 OF SUB COURT, ALAPPUZHA OS 152/2011 OF MUNSIFF COURT,CHENGANNUR APPELLANTS/APPELLANTS/PLAINTIFFS/COUNTERCLAIM DEFENDANTS:
1 ABDUL KHADAR AGED 66 YEARS S/O. THARAKAN MUSTHAFFA, MODI MELATHIL, PUNTHALA ERAM, VENMONY, CHENGANNUR, ALAPPUZHA.
2 BASHEER RAVUTHER AGED 60 YEARS S/O. MUHAMMED MUSTHAFA, PALATHUMPATT THEKKETHIL, PUNTHALA ERAM, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, 3 ASHARAFUDEEN, AGED 33 YEARS S/O. MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAM MURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, BY ADV P.VINODKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS/COUNTERCLAIM PLAINTIFFS:
1 HUSSAIN RAWTHER AGED 66 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
2 HABEEB, AGED 69 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
3 SHAJAHAN(DIED)
AGED 56 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
4 SALEENA BEEVI, AGED 49 YEARS, W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
5 RASHID SHAJAHAN(MINOR)
AGED 15, S/O. LATE SHAJAHAN, REP. BY HIS MOTHER SALEENA BEEVI, AGED 49 YEARS, W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA, PIN-689509.
6 JAMEELA, AGED 60 YEARS, W/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
7 HARIS, AGED 44 YERAS, S/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-
689509.
8 SUJA, AGED 42 YERAS, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-
689509.
9 RAJEENA AGED 40 YERAS, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-
689509.
10 SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
11 SHAHIN AGED 8 YEARS,(MINOR), REPRESENTED BY SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
12 NAVAS, AGED 6 YEARS,(MINOR), REPRESENTED BY SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.
BY ADV SRI.N.ASHOK KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH RSA.710/2019, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:
COMMON JUDGMENT
[RSA Nos.710/2019 & 720/2019]
R.S.A.No.710/2019 has been directed against the judgment and decree in A.S.No.1/2019 on the files of Subordinate Judge's Court, Alappuzha, which arise out of the dismissal of the suit in O.S.No.152/2011 on the file of Munsiff's Court, Chengannur and R.S.A.No.720/2019 has been filed against the judgment and decree in A.S.No.2/2019 on the files of Subordinate Judge's Court, Alappuzha, which in turn arise out of the decree in counter claim in O.S.No.152/2011 on the file of Munsiff's Court, Chengannur.
2. O.S.No.152/2011 has been filed for a permanent injunction. Plaintiff is the appellant in R.S.A.No.710/2019 and first appellant in R.S.A.No.720/2019. (Parties would hereinafter be referred as per their status before the trial court).
3. Plaint schedule item No.1 property belongs to the paternal grandfather of the plaintiff having an extent of 4.2 Ares comprised in survey No.559/19 and obtained by the grandfather as per Partition Deed No.2989/1114 ME. As per thandaper it still stands in the name of grandfather. Plaintiff's father died in the year 1988 and after his death the property devolved upon the plaintiff and is in his possession and enjoyment. Plaint schedule item No.2 property is having an extent of 3.34 Ares comprised in resurvey No.584/19-3 obtained by the plaintiff as per gift deed No.2377/1981. Plaint schedule item Nos.1 and 2 properties are lying contiguous. In the meanwhile, first defendant filed PLP 10/2009 before the Taluk Legal Service Committee, Chengannur raising frivolous claims with respect to plaint schedule item No.1 property. During the pendency of that petition defendants along with others trespassed into plaint schedule item No.1 property and destroyed the tress and cultivation and caused a loss of Rs.25,000/- to the plaintiff. Apprehending further trespass the suit has been filed.
4. Defendants filed written statement with counterclaim contending that plaint schedule item No.1 property was never been under the possession of the plaintiff or his father. The name of the plaintiff's father is Muhammed Musthafa and not Tharakan Mustafa. It is denied that the plaintiff obtained the plaint schedule item No.1 property as per partition deed No. No.2989/1114 ME. Plaint schedule item No.1 property is possessed by the first defendant. The defendant never trespassed into plaint schedule item No.1 property. The property having an extent of 14 cents comprised in old survey No.17/29B was devolved upon the father of the defendant Sri. Mustafa Kunju Rawther as per partition deed No.3792/1123 ME and after his death it was under the possession and enjoyment of the first defendant, out of that 14 cents, property having an extent of 1.35 Ares comprised in resurvey No.584/17 stood in the name of the paternal grandfather of the defendants and it was included in thandaper account TP 88. That property was subsequently transferred to their father. The remaining extent of 4.20 Ares is included in resurvey No.584/19 and shown in the thandaper account 4208 of one Mr.Tharakan Mustafa though no such person is in existence. On realising that, revenue authorities rectified the mistake and the 4.20 Ares in resurvey No.584/19 was corrected in the name of the father of the defendants late Mustafa Kunju Rawther in thandaper account 12207. There existed an old mud ridge between plaint schedule item No.1 property and the remaining properties on its northern side but it was damaged gradually due to rain and the defendants approached the Taluk Office, Chengannur for fixing the boundary and the surveyor laid the survey stone which was removed by the plaintiffs and filed the suit.
5. Since the northern boundary of plaint schedule item No.1 property has been demolished and plaintiff is making attempt to trespass upon it counterclaim has been filed seeking fixation of boundary and plaint schedule item No.1 property is shown as counterclaim item No.1 property. The properties having an extent of 17.10 Ares in
