Prema Thumbayil vs C.K.Balamohan @ Mohan Menon
2021 Latest Caselaw 10606 Ker

IA/2/2019 IN RSA 1081/2019                        1/3



                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                               Present:
                        THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

                         Monday,the 29th day of March 2021/8th Chaithra, 1943
                                  IA.2/2019 IN RSA.1081/2019 (D)

            For information purpose only
AS No.29/2017 of the I ADDITIONAL DISTRICT COURT, KOZHIKODE
OS No.903/2008 of the II ADDITIONAL MUNSIFF COURT, KOZHIKODE
PETITIONERS/APPELLANTS:
1.     PREMA THUMBAYIL, AGED 55,
       W/O KRISHNAN, HOUSE NO. 24/381/A., VALAYANAD AMSOM DESOM, P.O.
       MANKAV, KOZHIKODE TALUK, PIN 673 001.

2.     KRISHNAN, AGED 66
       S/O APPU, HOUSE NO. 24/381/A., VALAYANAD AMSOM DESOM, P.O.
       MANKAV, KOZHIKODE TALUK, PIN -673 001.
RESPONDENT/RESPONDENT:
       C.K.BALAMOHAN @ MOHAN MENON, AGED 65,
       S/O CHEMBIL KAKKITTAM PARAKKAL, DAKSHAYANI AMMA,
       VALAYANAD AMSOM DESOM, P.O. MANKAV,
       KOZHIKODE TALUK
       KOZHIKODE , PIN 673 001.

         Application praying that in the circumstances stated in the affidavit filed therewith the
High Court be pleased to       stay the operation of judgment and decree dated 28.01.2019 passed
in OS.No.83 of 2001 by the Hon'ble Munsiff's Court, Manjeri as confirmed in AS.No.70 of
2015 dated 08.01.2019 passed by the Hon'ble Subordinate Judge Court, Manjeri pending
disposal of the appeal.


         This application coming on for orders upon perusing the application and the affidavit
filed in support thereof, and upon hearing the arguments of M/S K.M.FIROZ and M.SHAJNA,
Advocates for the petitioners and of M/S K.A.SALIL NARAYANAN, Advocate for the
respondent, the court passed the following
                  N. ANIL KUMAR, J.
    -----------------------------------------
               RSA No. 1081 of 2019
    -----------------------------------------
      Dated this the 29th day of March, 2021

    For information purpose only
                               ORDER

Heard the learned counsel for the appellants

and the respondents.

2. The RSA is admitted on the following

substantial questions of law;

(1) Is the first appellate court justified

in not applying the principles of

acquiescence in favour of the defendants

without any legal evidence in support

thereof?

(2) Is the first appellate court justified

in granting mandatory and prohibitory

injunction to the plaintiff, particularly,

when the property is not properly

identified?

(3) Whether the first appellate court RSA No. 1081 of 2019

..2..

justified in placing the burden of proof of

certain facts on the defendants, of which

the burden of proof is on the plaintiff? For information purpose only Post after summer vacation.

IA No. 2 of 2019

Heard the learned counsel for the appellants

and the respondents.

2. Operation of the judgment and decree in AS No.

29 of 2017 on the file of the District Court,

Kozhikode (wrongly shown as AS No.70 of 2015

of Subordinate Judges Court, Manjeri) stands

stayed for a period of three months.

Sd/-

N. ANIL KUMAR JUDGE

bka/29.03.2021

/true copy/ Sd/- ASSISTANT REGISTRAR