SELVARAJA Vs. ABHIMANNU

JUDGEMENT

(1.) The plaintiff in O. S. 187 of 1951 on the file of the District Court of Trivandrum is the appellant in this Civil Miscellaneous Appeal. The suit was for damages alleged to have been occasioned to the tarwad of the plaintiff of which defendants 1, 2 and 3 are some of the members, the 2nd defendant being the karnavan. The plaint alleged that the 1st defendant excavated earth from tarwad property and was utilising it for conversion into bricks for purposes of sale. In that behalf it was alleged that 1st defendant had erected a kiln.

(2.) Along with the plaint two applications, C.M. Ps. Nos. 2733 and 2734 of 1951 both dated 20-7-1951 were presented. The first was for an order of interlocutory injunction restraining the 1st defendant from removing the bricks from the kiln. The other application was for attachment before judgment of the bricks in the said kiln for satisfaction of the plaintiff's claim on the averment that otherwise the claim would be irrecoverable. The 1st defendant objected to these applications disclaiming title to the kiln which, according to him, belonged to his father. The father on knowledge of the attachment intervened by an application (C. M. P. 2875/51) claiming the attached kiln as his in regard to which the 1st defendant had no manner of right or possession and that it was not liable to be attached.

(3.) Oral and documentary evidence was tendered in support of and against the claim. As many as 7 witnesses were examined. After the close of the enquiry the court below passed an order on 28-3-1952 allowing the claim. This order purports to be one passed not merely upon the claim but also upon the plaintiff's applications for injunction and attachment. The plaintiff has preferred this appeal impleading the three defendants as respondents 1 to 3 and the claimant as the 4th respondent. Exception is taken to the conclusion reached by the court below in favour of the claimant upholding his claim. It is prayed that the appeal may be allowed, the claim dismissed and the applications for injunction and attachment be both allowed.