NEELANKOL MUKUNDAN Vs. KADANKOTTU VALIYA KUNHAMBU NAMBIAR

JUDGEMENT

(1.) THE 1st defendant in O.S. No.656 of 1999 of the Munsiff's Court, Taliparamba is aggrieved by the judgment and decree of that court for prohibitory injunction, confirmed by the Sub Court, Payyannur in A.S. No.93 of 2004 is the appellant.

(2.) RESPONDENTS 1 and 2-plaintiffs 1 and 2 sued the appellant - 1st defendant and the 2nd defendant (the 2nd defendant died. His legal representatives were not impleaded. No relief was granted against the 2nd defendant) for a decree for prohibitory injunction and damages claiming title over the pond referred to in the plaint schedule. They claimed that the suit property and other items belonged to their Tarwad as per Ext.A1, partition deed executed in the Tarwad. The Suit property (pond) and the site were allotted to the 4th tavazhi as per Ext.A1. The suit property is shown as the 4th schedule in the partition deed. 1/3rd share was given to the 4th tavazhi. To the 8th tavazhi, property measuring 5.5 x 8 koles was allotted. There was an omission in the partition deed to state that property allotted to the 8th tavazhi was the remaining 2/3rd share over the pond. There was yet another partition in the 8th tavazhi as per Ext.A2, in the year, 1995. The property in R.S. No.281/1 was allotted to one Janardhanan. The respondents purchased the property as per Ext.A3. They claimed that they are irrigating their paddy filed with the water drawn from the pond. The appellant and the deceased 2nd defendant had no right over the property but caused obstruction to the respondents irrigating their paddy field. Hence the suit for prohibitory injunction and recovery of damages.

(3.) THE trial court observed that though there is some mistake in the plaint while referring to the name of the tavazhi members, evidence on record is consistent with the claim of the respondents that the suit property belonged to them. Accordingly a decree for prohibitory injunction was granted while the relief of damages was disallowed. That decision was confirmed by the first appellate court.