Kerala High Court
Ambalakkandi Kunhammad vs Veluthaparambath Alikkutty on 28 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
RSA NO. 24 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 25.08.2023 IN AS NO.43 OF
2022 OF SUBORDINATE JUDGE'S COURT, VADAKARA ARISING OUT OF THE
JUDGMENT AND DECREE DATED 10.11.2022 IN OS NO.71 OF 2016 OF
MUNSIFF'S COURT, NADAPURAM
APPELLANT/APPELLANT/DEFENDANT:
AMBALAKKANDI KUNHAMMAD
AGED 60 YEARS
S/O MOIDU, KUTTIADI AMSOM, THONDIPOYIL DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673508
BY ADVS.
U.K.DEVIDAS
K.K.ANILRAJ
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 VELUTHAPARAMBATH ALIKKUTTY
AGED 50 YEARS
S/O MOIDU, KUTTIADI AMSOM, THONDIPOYILDESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673508
2 VELUTHA PARAMBATH ARIF
AGED 47 YEARS
MOIDU, KUTTIADI AMSOM, THONDIPOYILDESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673508
3 VELUTHAPARAMBATH SHAFEEQ
AGED 46 YEARS
MOIDU, KUTTIADI AMSOM, THONDIPOYILDESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673508
BY ADVS.
Arun Kumar P
BALAGOPALAN P.(K/89/1988)
ZUBAIR PULIKKOOL(K/1214/1995)
MINI K. KOYERI(K/1146/2004)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
R.S.A.No.24 of 2024
C.S.SUDHA, J.
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R.S.A.No.24 of 2024
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Dated this the 28th day of June 2024
JUDGMENT
This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the defendant/appellant is against the judgment and decree dated 25/08/2023 in A.S.No.43/2022 on the file of the Subordinate Judges' Court, Vatakara, which appeal in turn is against the judgment and decree dated 10/11/2022 in O.S.No.71/2016 on the file of the Munsiff's Court, Nadapuram. The parties and the documents will be referred to as described in the suit.
2. The suit was one for mandatory injunction. According to the plaintiffs, the plaint A to C schedule properties belong to the plaintiffs. The defendant took plaint B schedule room on rent from the plaintiffs' father. After the death of the father, the defendant 3 R.S.A.No.24 of 2024 continued the tenancy arrangement with the plaintiffs. The defendant constructed plaint C schedule shed just behind plaint B schedule shop room without the knowledge or consent of the plaintiffs by removing the wooden planks from the eastern wall of the plaint B schedule shop room. Hence, the suit for mandatory injunction for directing the defendant to demolish the shed constructed, trespassing into the plaint schedule property.
3. The defendant on the other hand denied the plaintiffs' title over plaint B and C schedule properties and contended that the same was under his ownership and possession.
4. Necessary issues were framed by the trial court. The parties went to trial on the basis of the aforesaid pleadings. PW1 was examined and Exts.A1 and A7 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B5 were marked on the side of the defendant. The report and plan of the advocate commissioner have been marked as Exts.C1 and C2. The trial court on an appreciation of the oral and documentary evidence and after 4 R.S.A.No.24 of 2024 hearing both sides, decreed the suit, by which the defendant was directed by a decree of mandatory injunction to remove the plaint C schedule shed from the plaint schedule property. Aggrieved, the defendant filed A.S.No.43/2022. The first appellate court reversed the judgment and decree of the trial court and allowed the appeal. The suit was dismissed on the ground that it was barred by limitation. The defendant has come up in second appeal challenging the findings of the first appellate court that he has no right or title over plaint C schedule property and hence has no right to continue in possession of the property as his status is that of a trespasser.
5. Heard both sides.
6. As noticed earlier, the suit has been dismissed by the first appellate court finding the same to be barred by limitation. Therefore, there is no decree against the defendant. The learned counsel for the defendant/appellant to a query by this Court as to how the appeal is maintainable against the finding(s) of the first 5 R.S.A.No.24 of 2024 appellate court, relied on the dictums in Kesavan v. Madhavi Amma, 1967 KHC 350, Banarsi Sah v. Bhagwanlal Sah, 1977 KHC 2224, Abraham Joseph v. Kuruvilla, 1990(1) KLT SN 40 (Case no.47) and Nalini v. Padmanabhan, 1994 KHC 20 to canvass the point that the appeal is maintainable. Per contra, it was submitted by the learned counsel for the plaintiffs/respondents relying on the dictums in Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 and State of Andhra Pradesh v. B.Ranga Reddy, (2020) 15 SCC 681 that, in the light of Section 96 CPC an appeal is maintainable only against a decree and not against any adverse findings against a party.
7. The suit for mandatory injunction filed by the plaintiffs has been dismissed by the first appellate court on the ground of limitation. It is true that there are findings to the effect that the defendant has no right or title over the plaint schedule property and that he is occupying the property as a trespasser. Section 96 CPC deals with appeal from original decree. Sub-section (1) says that, 6 R.S.A.No.24 of 2024 save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Therefore it is clear that the present appeal is not maintainable as it is an appeal against the findings of the court regarding the status of the defendant, vis-a-vis the plaint schedule property. Hence the second appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/