SREEDEVI Vs. THYAGARAJAN

JUDGEMENT

(1.) THOUGH notice was issued on all substantial questions of law framed in this appeal, on hearing the learned counsel on both sides I am persuaded to think that what is required to be decided are the following substantial questions of law.

(2.) ACCORDING to the plaintiffs, the suit property and other items were acquired by the late Appu (predecessor-in-interest of the plaintiffs) and the late Madhavan (predecessor-in-interest of defendants 1 and 2) as per Ext.A4 (its copy is Ext.B2). On the death of Madhavan there was a partition between Appu and the legal representatives of the said Madhavan as per Ext.A1. According to the plaintiffs, as per that partition the plaint schedule item No.1 shown as A schedule in Ext.A1 was allotted to Appu while item No.2 - C schedule in Ext.A1 was kept in common with right for Appu to take usufructs therefrom. The B schedule in Ext.A1 was allotted to the defendants 1 and 2 while the D schedule which is a burial ground was kept in common with right to the defendants 1 and 2 to take usufructs. The defendants 1 to 4 attempted to trespass into the plaint schedule item No.1. The plaintiffs filed O.S.No.593 of 1992 in the Munsiff's Court, Kozhikode against the defendants 1 to 4 for a decree for prohibitory injunction against trespass. There, the contesting defendants claimed that there is a temple situated in item No.1. Learned Munsiff decreed the suit as per Exts.A2 and A3, judgment and decree but, with a rider that the plaintiffs shall not cause obstruction to the defendants offering prayers in the temple. In the meantime, alleging that the defendants caused obstruction to the plaintiffs conducting poojas and other rituals in the temple, they filed O.S.No.1247 of 1992 in the Principal Munsiff's Court, Kozhikode to protect their (alleged) right to conduct poojas, etc in the temple in item No.1.

(3.) PENDING suit and about 10 years after its institution the defendants filed I.A.No.4880 of 2004 for amendment of the written statement to contend that the temple referred to in their written statement is situated outside item No.1. Learned Munsiff dismissed that application. Learned Munsiff granted a decree in favour of the plaintiffs.