CHERIYAMAMMU HAJI Vs. MOHAMMED
HIGH COURT OF KERALA
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(1.) THESE appeals arise out of O. S. 385. of 1967 on the file of the Munsiff's Court, Badagara. The second plaintiff is the appellant in s. A. 349 of 1968, while defendants 1 and 2 are the appellants in A. S. 183 of 1968.
(2.) THE suit is by plaintiffs 1 to 4 to restrain defendants 1 to 3 from entering into the plaint schedule item cutting kuzhikoors and removing earth therefrom, from doing any permanent damage to the plaint property and for recovery of damages on account of waste already committed therein.
The facts of the case are as follows: The jenmi of the plaint property had created kanam-kuzhikanam right over the same, evidenced by Exs. BI to B3 and Al. It is admitted that the plaintiffs are the present owners of the suit property and that the kanam-kuzhikanam right is now vested in defendants 1 and 2. The earliest of the kanam-kuzhikanam documents is dated 12 91882 and Ex. BI is the marupat of the same. The last of the renewals was on 12 8 1921 and Ex. Al is the marupat thereof. Defendants 1 and 2 granted Ex. B5 sublease to the 3rd defendant on 317 1967 for a portion of the plaint property for commercial purposes. Since the 3rd defendant is taking steps to install petrol and diesel oil pumps in the plaint property after excavating the land and removing earth therefrom, the plaintiffs instituted the suit for the reliefs already mentioned. A sum of Rs. 2000/-is claimed from the defendants being the damage done on account of excavation and removal of earth from the plaint property.
The trial court decreed the plaintiff's claim for injunction against defendants 1 to 3 and decreed the plaintiff's claim for damages only against defendants 1 and 2 4. The 3rd defendant filed A. S. 41 of 1968 in the subordinate Judge's Court, Badagara, against the decree granting injunction, and the plaintiffs filed a memorandum of cross-objections claiming damages against the 3rd defendant as well. The learned Subordinate Judge allowed the appeal and vacated the decree for injunction against the 3rd defendant. The memorandum of cross-objections filed by the plaintiffs was dismissed. The suit thus stands dismissed against the 3rd defendant. S. A. 349 of 1968 is filed by the 2nd plaintiff against the decree and judgment of the learned Subordinate judge. Defendants 1 and 2 filed A. S. 141 of 1968 in the Subordinate Judge's court, Badagara, against the decree of the trial court. It was transferred to this court to be heard along with the second appeal as the questions involved are the same. The appeal after transfer to this Court was re-numbered as a. S. 183 of 1968.
(3.) THE suit property has been in the possession of tenants from 12 9 1882 on the strength of Ex. BI and the subsequent renewals. Ex. Al. the last of the series, recites that the kuzhikoors in the property belong to the tenant and the only improvement belonging to the landlord is the well in the property. THE suit property is in Badagara town and abuts the calicut-Cannanore Trunk road. In Ex. B5 the purpose of the lease is stated as follows: THE plaint property is only 30 cents in extent and it is described in Ex. Al as a garden land with a house and fruit bearing kuzhikkoors. THE annual purappad payable to the jenmi is Rs. 14/
The appellate judge found from the commissioner's report Ex. Cl that at the time of the suit all the kuzhikoors in plot A shown in the Commissioner's plan were cut and removed by the 3rd defendant. Plot A is the property comprised Ex. B5.;
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