IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5436 of 2007(V)
1. NARAYANA PRABHU DASA PRABHU,
... Petitioner
Vs
1. GIRI PRABHU RAMACHANDRA PRABHU,
... Respondent
2. NARAYANA PRABHU, SUDHAKARA PRABHU,
3. NARAYANA PRABHU, DAMODARA PRABHU,
4. VASANTHA BHAI, W/O.LATE NARAYANA
5. USHA, D/O. OF DO. DO.
6. PRAKASH PRABHU, S/O.LATE NARAYANA
7. SINDU, OF DO. DO.
8. BINDU OF DO. DO.
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent :SRI.V.L.SHENOY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/04/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
WP(C)No. 5436 OF 2007
............................................
DATED THIS THE 4TH DAY OF APRIL, 2007
JUDGMENT
Petitioner is the first defendant in O.S.406 of 1980 on the
file of Munsiff Court, Cherthala. The suit was originally disposed
of. It was finally remanded by the Apex Court to this court for
not formulating substantial question of law in the second appeal
under Ext.P3 order. Thereafter, under Ext.P4 judgment, this
court remanded the suit to the trial court granting an
opportunity to the plaintiff to adduce oral evidence in the light of
receipt of Ext.A19 and A20 by the first appellate court. It was
made clear that in the light of any further oral evidence, if any to
be adduced by plaintiff, defendants are also entitled to adduce
rebuttal evidence. Thereafter, petitioner filed Ext.P6 application
before the trial court to struck off all the other issues with
regard to title except possession, which were framed by trial
court. Under Ext.P8 order the learned Munsiff dismissed the
application. It is challenged in this petition filed under Article
227 of Constitution of India.
2. Learned counsel appearing for petitioner and first
respondent were heard. The argument of learned counsel
WP(C)5436/2007 2
appearing for petitioner is that as the suit is only for a decree for
injunction, the only question to be decided is possession and in
the plaint itself possession of the defendants is admitted and in
such circumstances all other issues are unnecessary and is not
to be tried and hence Ext.P8 order is to be set aside and Ext.P6
petition is to be allowed.
3. The suit which was originally decreed, but was
remanded by this court to consider afresh the rights claimed by
the plaintiff as well as the defendants. The issues sought to be
struck off were the issues framed originally and considered by
the trial court, first appellate court and this court. Though
possession of the defendants was admitted in the plaint, decree
sought for is restraining defendants from taking income from the
property or constructing any structures in the property or
disputing the right and title of plaintiff which was disputed by
defendants in the written statement. In such circumstances it
cannot be said that the issues framed by court below are
unnecessary for resolving the dispute involved in the suit. In
such circumstances, I find no reason to interfere with that order.
Petition is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-