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2022 Supreme(Online)(KER) 58979
HIGH COURT OF KERALA
Sathish Ninan, J
BHARATHARAJAN – Appellant
Versus
G.MOHANKUMAR – Respondent
RSA/167/2007
SRI.SANTHEEP ANKARATH, SRI.G.HARIHARAN, SRI.R.SURENDRAN, SRI.PRAVEEN.H.
A plaintiff must establish the identity of the property claimed in a partition deed to succeed in an injunction suit; failure to do so results in dismissal.
Headnote:
Injunction - Property Rights - Partition Deed - Sections of Property Law - The court analyzed the validity and identification of property under a partition deed, leading to the conclusion that identity was not established, resulting in dismissal of the appeal.
Fact of the Case:
The plaintiff, claiming title to property as per a partition deed, filed for injunction against the defendants who attempted trespass. The trial court dismissed the suit due to lack of identifiable property, which was reversed by the appellate court.
Issues: Whether the appellate court correctly found that the identity of the property was admitted by the defendants and if the plaint schedule property is identifiable.
Ratio Decidendi: The court held that mere possession by the father did not constitute an admission of property identity, and the plaintiff failed to provide clear evidence to establish the boundaries or identity of the claimed property.
Final Decision: The appeal was dismissed and the decree of the appellate court was set aside.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 RSA NO. 167 OF 2007 AGAINST THE JUDGMENT IN AS 353/2001 OF I ADDITIONAL DISTRICT COURT,PALAKKAD OS 483/2000 OF MUNSIFF COURT, CHITTUR APPELLANTS/RESPONDENTS 2 TO 5/DEFENDANTS 2 TO 5& LEGAL HEIRS OF DECEASED FIRST RESPONDENT/FIRST DEFENDANT:
1 BHARATHARAJAN (APPELLANTS 1 TO 4), (CHILDREN OF LATE SUKUMARAN)
2 UNNI
3 SIVAKUMAR
4 JITHISH KUMAR,RESIDING AT ARIYAN PALLAM, CHITTUR POST, CHITTUR TALUK AND VILLAGE, PALAKKAD.
5 V.MADHAVI, W/O. LATE SUKUMARAN,ARIYAN PALLAM, CHITTUR POST, CHITTUR TALUK AND VILLAGE, PALAKKAD.
6 PREMALATHA, W/O. LATE BABU RAJ, AZHICHIRA HOUSE, KANNIMANI POST, CHITTUR.
7 S.BHYMI, W/O. T.K.RADHAKRISHNAN,THEKKETHIL HOUSE, PARUTHIPULLI, PERINGOTTUKURISSI, ALATHUR TALUK.
8 S.KRISHNAKUMARI, PUNNOT HOUSE, MAYAPALLOM, KANJIKKODE, PALAKKAD TALUK.
9 S.SALINI, W/O. KARUPPESH KUMAR PALAKKODU, KOLLANGODE, CHITTUR TALUK.
BY ADV SRI.SANTHEEP ANKARATH RESPONDENTS/APPELLANT&PLAINTIFF&LEGAL HEIRS OF 1ST DEFENDANT:
1 G.MOHANKUMAR, S/O LATE SUKUMARAN,UNNIKUNNU, ANICODE, CHITTUR POST, PALAKKAD DISTRICT. 2 S.RADHAKRISHNAN, S/O. LATE SUKUMARAN
5/313, KAPARAMEDU, CHITTUR, PALAKKAD - 678 101.
3 S.VIJAYAKUMAR, S/O. LATE SUKUMARAN POOVAKKAD, CHANDANAPURA, KUTTIPALLAM P.O., CHITTUR, PALAKKAD DISTRICT.
BY ADVS.
SRI.G.HARIHARAN SRI.R.SURENDRAN SRI.PRAVEEN.H.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
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Dated this the 3rd day of November, 2022
JUDGMENT
The suit for prohibitory injunction against trespass, though dismissed by the trial court, was decreed in Appeal. The defendants are in Appeal.
2. The plaintiff is the son of the 1st defendant.
The other defendants are the siblings of the plaintiff. The plaint schedule consists of two items of properties. The plaintiff claims title over the plaint schedule property as per Ext A1 Partition Deed of the year 1974. The partition deed was executed between the plaintiff and the defendants. In Ext A1 partition, the C schedule items therein were allotted towards the share of the plaintiff. The plaintiff claims that the plaint schedule properties are the properties included in C schedule items 1 to 5 to Ext A1 Partition Deed. At the time of execution of Ext A1 Partition Deed, the plaintiff was a minor, and the property was being taken care of by his father. After attaining majority, he has obtained possession of the property and is enjoying the same.
Alleging attempt of trespass by the defendants the suit was filed.
3. The defendants contend that, even after Ext A1 Partition Deed the entire properties continued to be in the possession and enjoyment of the father - 1st defendant. It was contended that the description of the plaint schedule property is not correct, that the properties of defendants 3 and 4 have also been included in the plaint schedule. It was further contended that the plaint schedule property is not identifiable.
4. The trial court dismissed the suit finding that the identity of the plaint schedule has not been established. The first appellate court held that the identity of the property has been admitted by the defendants in the written statement, and accordingly the suit was decreed.
5. Heard the learned counsel Sri.Santheep Ankarath on behalf of the appellants and Sri.G.Hariharan, learned counsel for the 1st respondent, and Sri.R.Surendran, learned counsel for respondents 2 and 3 on the following substantial questions of law.
“ (i) Is the finding of the first appellate court that the identity of the property has been admitted by the defendants in the written statement, correct?
(ii) Was the first appellate court correct in its finding that the plaint schedule property is identifiable ?”
6. The definite case of the defendants is that, the plaint schedule description is not correct and that the description is ma
