ROSAMMA Vs. MERCELY

JUDGEMENT

(1.) The legal representatives of the plaintiffs are the appellants. The suit was filed for prohibitory injunction, mandatory injunction and also to set aside documents. Recovery of possession of the two properties on the strength of title was also claimed. The trial court partly decreed the suit granting a prohibitory injunction restraining the defendants from entering into the plaint schedule property other than for ingress and egress to the respective properties allotted to them. The documents registered as 4240, 4241 and 4242 dated 11.12.1985 are found to be invalid and hence those documents were set aside. Though mandatory injunction was claimed pertaining to plaint B, C and D schedule property, that claim was disallowed. In the appeal, the lower appellate court found that the plaintiffs have no right over the suit property. It was found that the eastern boundary of the plaint A schedule property is a river. Defendants 2 and 18 had put up a Chinese fishing net which is the plaint C schedule property. Plaint B and D schedule properties are the sheds alleged to have been put up by the 2nd defendant. It was found that the plaintiffs could not prove that they have got exclusive right over the suit property and so, it was held that the plaintiffs are not entitled to get the mandatory injunction as prayed for. It was held that "puduval pathivu" will be apart of the plaint A schedule property but in fact no claim was made by the plaintiff. The legal representatives of the plaintiffs have filed this Second Appeal.

(2.) The following substantial questions of law have been formulated in this Second Appeal:-

(3.) The evidence would show that the property originally belonged to Bavu Pailoo. He has four sons Mersely, Grigory, Acho and Bernad. On the death of Bavu Pailoo the plaint schedule property devolved upon his four sons Mersely, Grigory, Acho and Bernad. The first defendant is the widow and defendants 2 and 3 are the children of Acho, one of the sons of Bavu Pailoo. The other three sons of Bavu Pailoo also died subsequently. It is contended by defendants 1 to 3 that they are the legal representatives of deceased Acho and so they are entitled to get 1/4 share in the property left behind by Bavu Pailoo.