SREEKUMARI Vs. PODIYAMMA

JUDGEMENT

(1.) PLAINTIFF , who got a decree for prohibitory injunction in O.S. No. 300 of 2000 of the court of learned Munsiff, Kayamkulam but only to be reversed by the learned First Additional District Judge, Mavelikkara in A.S. No. 69 of 2005 has brought up this Second Appeal where the following substantial questions of law are framed for a decision.

(2.) TRIAL court granted decree in favour of the appellant. Court claim was dismissed. First respondent -original defendant filed appeal against that judgment and decree. During pendency of the appeal she died and respondents being legal representatives were impleaded as additional appellants. First appellate court in paragraph 6.i of the judgment held that in so far as there is no evidence to show that suit property (allegedly) covered by the Ext.A4, final decree was delivered over to the mortgagor, based on the mere recital in Ext.A1, possession claimed by the appellant cannot be upheld. Holding so the appeal was allowed and suit the was dismissed. Dismissal of the counter claim by the trial court was confirmed. Dismissal of the suit is under challenge in the appeal on the substantial questions of law framed above.

(3.) IT is contended by the learned counsel that the only reasoning adopted by the first appellate court to decline to uphold possession claimed by the appellant over the suit property is that the delivery kaichit is not produced to show delivery of possession. Learned counsel submitted that now that the delivery kaichit is produced, finding of the first appellate court has to be reversed.