IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 853 of 2002(B)
1. NARAYANAN RAGHAVAN ACHARI,
... Petitioner
Vs
1. GOURIVIJAYAMMA, ATTUVANCHIKKAT,
... Respondent
2. BINU S/O. VIJAYAMMA, ATTUVANCHIKKAT,
3. AYYAPPAN MADHAVAN, ATTUVANCHIKKAT,
4. GOURI, ATTUVANCHIKKAT, S.PARAVUR,
For Petitioner :SRI.ANIL THOMAS (MELEMALAYIL)
For Respondent :SRI.A.BALAGOPALAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.853 OF 2002
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Dated this the 29th day of June, 2007
JUDGMENT
Appellant is the plaintiff in O.S.5/1987 on the
file of Munsiff Court, Vaikkom. Respondents are
the defendants. Respondents 2 and 3 were
subsequently deleted by the appellant stating that
they are no more and other respondents are their
legal heirs. Second defendant is the son and
defendants 3 and 4 are the parents of the first
defendant. Appellant was admittedly living with
first defendant as husband and wife under a
registered agreement. Second respondent was born
in that relationship. When the relationship got
strained, appellant desserted them. Respondents 1
and 2 claimed maintenance under section 125 of
Code of Crl. Procedure contending that first
respondent is the wife and the second respondent,
the son of appellant. Courts finally found that
second respondent is the son, though on the failure
S.A.853/02 2
of first respondent to prove the legal marriage,
her status as the legally wedded wife was not
upheld. The suit was filed by the appellant
seeking a decree for mandatory injunction
contending that plaint A schedule property belongs
to him as per Ext.A1 patta obtained from the Taluk
Office and respondents have no manner of right over
the same. Respondents denied the title and also
claimed that they are entitled to get kudikidappu
right. Though the claim for kudikidappu was
referred to the Land Tribunal under section 125(3)
of Kerala Land Reforms Act, Land Tribunal found it
against first respondent. The trial court on the
evidence found that appellant has admitted that he
did not enter into the plaint schedule property
after 1980 and Ext.B1 judgment shows that earlier
suit filed by appellant for injunction was
dismissed and therefore held that appellant is not
entitled to the decree for mandatory injunction
sought for. The suit was dismissed. Appellant
S.A.853/02 3
challenged the decree and judgment before
Additional District Court, Kottayam in A.S.50/1992.
Learned District Judge on reappreciation of
evidence found that evidence would establish that
appellant did not even enter into the plaint
schedule property after 1980 and it has been in the
possession of the respondents and in such
circumstance, appellant is not entitled to the
decree for mandatory injunction. The appeal was
dismissed. It is challenged in this second appeal.
2. Learned counsel appearing for the appellant
was heard.
3. On hearing learned counsel and on going
through the judgments of the courts below, I do not
find any substantial question of law involved in
the appeal. The admission of the appellant as PW1
establish that respondents have been in possession
of the plaint A schedule property and he did not
even enter the plaint schedule property after 1980.
Appellant earlier filed O.S.216/1981 claiming a
S.A.853/02 4
decree for injunction against respondents.
Respondents derived the title and possession .Under
Ext.B1 it was dismissed. Even in the suit appellant
did not seek declaration of his title. Ext.A1
patta was obtained after Ext.B1 judgment. The suit
was framed as if respondents are rank trespassers.
First appellate court found that in such
circumstance, appellant is not entitled to the
decree. Courts below rightly dismissed the suit. I
find no substantial question of law involved in
the appeal.
The appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006