KOMALAM Vs. RAJAN.K

JUDGEMENT

(1.) DEFENDANTS in O.S. No.322 of 2009 of the Additional Munsiff's Court, Kozhikode are aggrieved by the decree for prohibitory injunction granted by the learned District Judge, Kozhikode in A.S. No. 28 of 2010 reversing dismissal of the suit.

(2.) THE respondent sued the appellant for a decree for prohibitory injunction claiming that the plaint A and B schedules belonged to the predecessor-in-interest of the appellants from whom one Malu took the properties on karaima lease as per document No. 1712 of 1934. Malu sold the property to Padmanabhan as per document No.799 of 1944. He constructed a house and latrine there with the consent of the landlord. Padmanabhan was in possession of the plaint B schedule as per an oral entrustement from the landlord. Achakutty, mother of the plaintiff purchased the said property from Padmanabhan as per document No. 1228 of 1947. She constructed a house as per plan approved by the predecessor-in-interest of the appellants. Achakutty transferred the property to the first respondent as per Exts.A1 and A2, assignment deed Nos. 532 and 566 of 1996. Thus the respondent claimed to be in possession of plaint A and B schedules. The respondent apprehended trespass into the said property by the appellants.

(3.) THE trial court found, as regards plea of identity of the suit property that there is no challenge to the evidence of Pws 1 and 2 and that the identity is revealed by Ext.C2 where the plaint A schedule is identified and located as plot ABCD and the plaint B schedule, as plot PQRS. The trial court found that the respondent is in possession of the plaint A and B schedules. Referring to Ext.A6, permit dated 27.09.1957, Ext.A7, permit dated 27.09.1957 for the latrine and Exts.A8 and A9, plan and permit, it was held that construction of the latrine in the plaint B schedule was with permission of the landlord. The trial court also found that in Exts.A8 and A9, Rarichakutty, predecessor-in- interest of the appellants have signed and hence the contention that the construction is unauthorized cannot be accepted. However, the trial court in spite of all the above findings concluded that the cause of action pleaded by the respondent is not proved and consequently dismissed the suit. The first appellate court was reversed that finding and granted a decree as prayed for. That judgment and decree are under challenge.