Kerala High Court
Kadavathe Puthiya Purayil Rahim Aged 45 ... vs K.P.Ibrahim on 7 September, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 29TH DAY OF MAY2013/8TH JYAISHTA 1935
RSA.No. 417 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN AS 39/2010 of
SUB COURT, VADAKARA DATED 07-09-2012
AGAINST THE ORDER/JUDGMENT IN OS 103/2010 of
MUNSIFF COURT, VADAKARA DATED 11-11-2010
APPELLANT(S)/APPELLANT:
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KADAVATHE PUTHIYA PURAYIL RAHIM AGED 45 YEARS
S/O. KHADER, H. NO. 6/341, VATAKARA AMSOM
DESOM, VATAKARA TALUK, KOZHKODE DISTRICT.
BY ADVS.SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENT(S)/APPELLANTS:
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1. K.P.IBRAHIM, AGED 61 YEARS
S/O. KUHAMALI, MONEMMAL HOUSE, EKANONTHAM
P.O. NUT STREET, VATAKARA AMSOM, DESOM
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 104.
2. K.P. KUNHIPATHU, AGED 67 YEARS
D/O. KUNHAMALI, KADAVATHE PUTHIYA PURAYIL RAHIM
PAKKURAJI HOUSE, ADDUMUKKE VATAKARA
KOZHIKODE DISTRICT - 673 104.
3. K.P. KUNHAMMA, , AGED 56 YEARS
D/O. KUNHAMALI, FATHIMA MANZIL
PARAYU;LLA VATTAKKANDIYIL P.O., NUT STREET
MEPPARYIL ROAD, VATAKARA
KOZHIKODE DISTRICT - 673 104.
4. K.P. SAKEENA, AGED 49 YEARS
D/O. ABDURAHIMAN, KARUNA HOUSE, PAZHANKAVU
FIRE STATION ROAD P.O., KOZHIKODE, VATAKARA - 673104.
5. K.P. SUHARA, AGED 45 YEARS
D/O. ABDURAHIMAN, KARUNA HOUSE, PAZHANKAVU
FIRE STATION ROAD P.O., KOZHIKODE, VATAKARA - 673104.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
das
N.K.BALAKRISHNAN, J.
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R.S.A. No. 417 of 2013
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Dated this the 29th day of May, 2013
JUDGMENT
The suit for injunction filed by the plaintiff was concurrently dismissed by the courts below. Hence, the plaintiff appeals. Plaintiff claims possession over the plaint schedule property based on Ext.A1. The said property was purchased by him from one Ibrahim on 04.5.2009. The defendants contended that Ext.A1 is not true and that it was got manipulated by the plaintiff. Exts.A2 and A3 are basic tax receipts, Ext.A4, the building tax receipt and other documents were obtained by the plaintiff making use of Ext.A1, which is an invalid document, it is contended by the defendants.
2. 42 cents of land was sold by one Ummarkutty to one Moosa in 1961. It was admitted that Moosa had transferred his right over the property to one Kunhammad as per Exts.A5 and A6. Kunhammad obtained purchase certificate in respect of the said property as per Ext.A7. The evidence would show that Kunhammed, thereafter sold 9.4 Ares of land as per Exts.A8 and A9 to one Ahammad. Again R.S.A No.417/2013 : 2 : Kunhammad mentioned earlier assigned 3.30 Are of land to one Hamsa as per Ext.B6. Hamsa in turn assigned that property to one Cheriya Ibrahim in 1988 as per Ext.A11. The plaintiff contended that Kunhammad, who was stated to have obtained right from Moosa, was in possession of the remaining extent of land. That property, according to the plaintiff, devolved upon Ibrahim the son of Kunhammad and from out of that property, Ibrahim sold the plaint schedule property to the plaintiff. It was contended by defendants that the property that was sold to Hamsa in 1985 was the entire balance extent which was held by Kunhammad. Thereafter, he had sold portions of the property as per Exts.A8 and A9 documents.
3. The learned Munsiff made a thorough examination of the oral and documentary evidence adduced by the parties. The properties covered by various documents were not got surveyed and identified. The plaintiff wanted to make use of an admission made by PW1 that the boundaries and measurements stated by the plaintiff are not incorrect. That admission did not persuade the courts below to hold that the R.S.A No.417/2013 : 3 : plaintiff could establish his right to the property shown in the schedule to the plaint so as to get a decree for injunction against the defendants. There were so many transactions pertaining to portions of the property. The land allegedly retained by Moosa, who was stated to have sold the plaint schedule property to the plaintiff, was not identified. It is not something which can be discerned or proved by the so called admission made by the defendants. The courts below were rightly not carried away by the ambiguous and non-specific admission made by DW1. If there was any extent of land in the possession of Kunhammad, the executants of the earlier documents, whether his son had obtained any right after the death of Kunhammad, and whether by virtue of any such document, plaintiff had obtained by any right over any such land were matters which should have been proved by taking out a commission showing the lie and position of the plots covered by the various assignment deeds. That was not done. Therefore, the courts below were perfectly justified in dismissing the suit for injunction.
R.S.A No.417/2013 : 4 :
This suit was only for injunction. If the plaintiff is otherwise entitled to file a suit on title for recovery possession he can do so. The judgment in this case will not be a bar to entertain any such suit. No substantial question of law arises in this appeal. Hence, this R.S.A is dismissed.
Sd/-
N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge