NARAYANAN RADHAKRISHNA MENON Vs. NARAYANAN SUKUMARA MENON

JUDGEMENT

(1.) These second appeals emanate from the judgments and decrees in two suits; viz. , O. S. Nos. 538 of 1986 and 842 of 1986 filed before the Munsiff's Court, Cherthala. Appellant is the 1st plaintiff in O. S. No. 538 of 1986 and the 1st defendant in O. S. No. 842 of 1986. Contesting respondents are the opposite parties to the suits.

(2.) Brief facts are as follows: O. S. No. 538 of 1986 is a suit for permanent prohibitory injunction. Plaint schedule property, with other items, originally belonged to Areepparambathu Raghava Menon. He bequeathed the plaint schedule property in favour of the plaintiffs' mother, Gouri Amma Bhavani Amma, by executing a Will dated 17. 08. 1122 M. E. After his death, the Will took effect and the property devolved on the legatee. There was a partition in the thavazhi of Bhavani Amma and D schedule in the deed of partition was set apart to the share of the plaintiffs. Since the 1st plaintiff was residing away, his younger brother, the 2nd plaintiff, was looking after the property. When the plaintiffs started construction of a building in the property, the defendants obstructed. Hence the suit for prohibitory injunction.

(3.) In the written statement the defendants contended that the plaint schedule property never formed part of survey No. 186/5A-2, having an extent of 1. 53 acres. It formed part of 2. 63 acres in survey No. 186/5A. It is included in 63 cents, on the northern extremity of 2. 63 acres of land. 63 cents mentioned above was not included in the Will. It is pertinent to note that execution of the Will by Raghava Menon was not disputed at all. Plaintiffs' mother did not get any right over 63 cents of land. Plaint schedule property was kept in common, as item No. 37 of A schedule in a partition deed of the year 1100 M. E. That property had been used by the family members as a cremation ground. Thereafter, members of the family started using it for some rituals, like "paravaippu" and "thalapoli" in connection with "arattu" procession of Cherthala Devi Temple. Plaintiffs are not entitled to construct any building in the plaint schedule property.