IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 931 of 1998()
1. AMINA MANIKKA
... Petitioner
Vs
1. ATHIRIKOLUGE UTHARU FARATHUGE FATHIMA
... Respondent
For Petitioner :SRI.P.M.MOHAMED ALI
For Respondent :SRI.P.S.USUPH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :02/06/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.931 OF 1998
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Dated this the 2nd day of June, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree of the District Judge, Lakshadweep in
O.S.No.25/1997. The suit is one for permanent injunction
with respect to the plaint schedule property. The plaint
schedule property consists of a measured portion and an
area situated on the western side of it. The plaintiff would
contend that the property having the measurements is in her
possession and she had approached the authorities and by
virtue of an agreement between the parties as per Ext.A3
order, it is made clear that the said property is having the
following measurements. In Sy.No.10/3 B, having north
measurement of 107 links, south measurement of 117 links,
east measurement of 104 links and west measurement of
70 links. A patta is to be issued in the name of the plaintiff.
The other document supports her case i.e., Ext.A2 which
is Ext.B1 as well where both the parties have agreed and
the defendants’ predecessor had also agreed to give the
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land to the first defendant. Therefore Ext.A3 coupled with
Ext.A2 statement concludes the question regarding
possession with respect to the plaintiff over the property
whose measurements are given above. The defendants in
their written statement would contend that the plaintiff’s
father was appointed as a watchman and he was permitted
to construct a temporary shed of 35 x 25 feet. It is further
contended that with the permission of the Collector, such a
permission was granted and that a karar was executed by
the plaintiff’s father on 15.5.1970 to vacate the land without
any objection. With respect to the property on the western
side which is described in the plaint, there was a suit,
O.S.No.11/1992 against the father of the present plaintiff
and there was an ex parte decree and an appeal was filed
by the father of the plaintiff before the High Court of Kerala
as C.M.A.No.187/1994. The said C.M.A was disposed of on
the contention that the father did not have any right over
the property and that the property belongs to the daughter
namely the plaintiff herein and also that the present suit
was pending before the court. It is further contended that
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A.S.NO.931 OF 1998
after the disposal of the suit, the said appeal is said to be filed
before the High Court. So the decree in O.S.No.11/1992 so
far as it relates to the father of the plaintiff was concerned
was attempted to be warded off by the father contending
that the said property also belongs to the daughter.
2. The learned Subordinate Judge has
compartmentalized the case into one with respect to the
land which is covered by Ext.A3 and the other with respect
to the land situated on the western side of the measured land.
So far as it is related to Ext.A3, by virtue of the document
available as well as by the admission of the parties therein,
the learned District Judge came to the conclusion that the
plaintiff has succeeded in proving her possession over the
property mentioned in the plaint with the measurements.
3. I feel the contention of the defendants that only a
smaller area 35×25 feet has been given and that there was an
agreement to vacate the land as and when required all
seems to be not acceptable in the light of the statement
given which resulted in Ext.A3 order. Therefore the finding
of the learned District Judge on that does not call for any
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A.S.NO.931 OF 1998
interference.
4. So far as the property situated on the western side is
concerned, the learned District Judge has not granted any
relief to any of the parties. The learned Judge had dealt
with in para-18 of the judgment. The learned Judge
concluded that since there is no proper description and
measurement of the seashore land, the plaintiff will not be
entitled to an injunction with regard to that portion. The
court only granted an order in favour of the plaintiff with
respect to the land measuring 107 links north, 117 links
south, 104 links east and 70 links west. Unfortunately in the
operative portion of the judgment in para-20 it is not
specifically written. But a reading of the judgment
conclusively shows that injunction is granted with respect
to the property having the measurement shown and there is
denial of injunction with respect to the property on the
western side.
Therefore the appeal is disposed of by clarifying that
the decree for injunction is related to the property having
measurement of 107 links on the north, 117 on the south,
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A.S.NO.931 OF 1998
104 links on the east and 70 links on the west. It is made
clear that there is no decree of injunction with respect to the
property situated on the western side of these measurements.
M.N. KRISHNAN, JUDGE.
cl
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A.S.NO.931 OF 1998
M.N. KRISHNAN, J.
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A.S.NO.931 OF 1998
………………………………………
2nd day of June, 2010.
J U D G M E N T