Dismissed

Edward Sirling v. Gracy

Kerala HC3 Apr 2012RSA/154/2012

Case brief

AI extract

What is this about?

Second Appeal dismissed. Court vacated lower courts' findings on title as unnecessary due to impleadment issues, leaving appellants free to file a comprehensive suit declaring title, recovering possession, and fixing boundaries with all necessary parties included.

What did the court decide?

Findings of lower courts regarding title vacated; appellants allowed to file a fresh suit impleading necessary parties.

Edward Sirling Vs Gracy — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934

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RSA.No. 154 of 2012 ()

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AS.1/2008 of PRINCIPAL SUB COURT,THIRUVANANTHAPURAM OS.340/2004 of III ADDL.MUNSIFF'S COURT,THIRUVANANTHAPURAM

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APPELLANT(S)/APPELLANTS/PLAINTIFFS:

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1. EDWARD SIRLING, S/O.XAVIER INNAS SIRLING, NOW RESIDING AT MARIAN VILLA, T.C.32/311 (1) PADRPIO TOWNSHIP, KOCHUVELI, T.T.P.(P.O), THIRUVANANTHAPURAM, PIN-695 021.

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2. SHARLET, W/O. EDWARD SIRLING, NOW RESIDING AT MARIAN VILLA, T.C.32/311 (1), PADREPIO TOWNSHIP, KOCHUVELI, T.T.P.(P.O), THIRUVANANTHAPURAM, PIN-695 021.

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BY ADV. SRI.GOPAKUMAR R.THALIYAL

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RESPONDENT(S):RESPONDENTS/DEFENDANTS:

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1. GRACY, D/O. MARIUM, RESIDING AT LIJI HOUSE, T.C.33/518, VETTUKADU, T.T.P.(P.O), THIRUVANANTHAPURAM - PIN-695 021.

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2. VARGHESE, S/O.ANTHONEY, RESIDING AT LIJI HOUSE, T.C.33/518, VETTUKADU, T.T.P.(P.O), THIRUVANANTHAPURAM - PIN-695 021.

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3. PRINCY VARGHESE, C/O.GRACY VARGHESE, LIJI HOUSE, T.C.33/518, VETTUKADU, T.T.P.(P.O), THIRUVANANTHAPURAM - PIN-695 021.

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BY ADV. SRI.JOHN NUMPELI (JUNIOR) BY ADV. SMT.K.M.MINIMOL

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No. 154 of 2012

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==================================== Dated this the 03^rd day of April, 2012

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J U D G M E N T

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Respondents appear through counsel pursuant to the notice served on them before admission of this appeal.

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This Second Appeal arises from the judgment and decree of learned Principal Sub Judge, Thiruvananthapuram in A.S. No.1 of 2008 confirming judgment and decree of learned Third Additional Munsiff, Thiruvananthapuram in O.S. No.340 of 2004. That is a suit filed by the appellants for declaration of title, fixation of boundary and injunction. Appellants claimed that the suit property – 15 cents belong to and is in their possession as per Ext.A1, document No.2 of 1994 and produced Ext.A2, receipt for payment of revenue to prove their contention. It is the further case of appellants that respondents have 14 cents on the south of the suit property but there is no specific boundary in between property of appellants and respondents. Hence the suit for reliefs as first above stated.

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Respondents 1 and 2 contended that as per Ext.B1, gift deed No.4429 of 1980 first respondent owned 14.750 cents on the

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R.S.A. No. 154 of 2012

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-: 2 :-

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south of property belonging to the appellants. Of the said 14.750 cents she transferred 6.250 cents to the third respondent, her daughter (later impleaded as additional third defendant in the suit) and her husband as per Ext.B3, gift deed No.2992 of 2003. The remaining 8.500 cents belong to and is in the possession of the 1^st respondent. They also contended that the remaining properties belonging to and in the possession of 1^st respondent and the 3^rd respondent (additional 3^rd defendant) are bounded by wall separating it from the property of the appellants.

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Trial court held that the husband of third respondent is also a necessary party to the suit and his non-impleadment is fatal. A further finding trial court has made is that appellants failed to prove physical possession of the entire suit property regarding which declaration of title, fixation of boundary and other reliefs are sought for. Trial court noticed the existence of compound wall on the southern side of property now in the possession of appellants and held that in the circumstances prayer for declaration of title and fixation of boundary cannot be allowed. Those findings were confirmed by the first appellate court as well. Hence this Second Appeal urging the substantial questions of law raised in the memorandum of appeal.

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R.S.A. No. 154 of 2012

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-: 3 :-

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Learned counsel for appellants contended that if the suit was not maintainable for non-impledment of husband of third respondent (additional third defendant) and if at all trial and first appellate courts were of the view that any portion of the property belonging to the appellants is in the possession of respondents, there was no necessity to enter any finding regarding title claimed by the appellants and the issue regarding title should have been left open so that appellants could filed a comprehensive suit on title for recovery of possession if it is found necessary, for fixation of boundary and other reliefs impleading the husband of third respondent as well.

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Learned counsel for respondents contended that there is no reason to interfere with the judgment and decree of the courts below.

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The view taken by the trial and first appellate courts is that appellants have failed to show that they are in possession of the 15 cents they claimed as per Ext.A1. Courts below also noticed a physical boundary on the southern side of property now in the possession of appellants.

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In Baputty (a) Sydali v. Cheriakutty (a) Veerankhani Rawther (1990 [1] KLJ 218 – paragraph 6)

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R.S.A. No. 154 of 2012

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-: 4 :-

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and Anjil Vellachi v. Mamuni Bhaskaran (2009 [3] KHC 728) it is held that when the property is in the possession of defendant, plaintiff cannot ask for fixation of boundary since that would amount to overreaching the other contentions regarding title and possession raised by the defendant. In that view of the matter without asking for recovery of possession of property (if they are entitled), appellants could not have asked for fixation of boundary on the strength of title. The trial and first appellate courts were of the view that non-impledment of husband of third respondent is fatal. Hence it was not necessary to enter any finding regarding title claimed by the appellants as per Ext.A1. Otherwise, no substantial question of law is involved in this appeal.

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Having heard learned counsel on both sides, the appropriate course is to vacate all findings if any entered by the courts below regarding title claimed by the appellants as per Ext.A1 and leaving it open to appellants to file a fresh suit if they are so advised and otherwise entitled to that course. Accordingly it is directed that all the findings if any entered by the courts below regarding title claimed by the appellants as per Ext.A1, will stand vacated being unnecessary.

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R.S.A. No. 154 of 2012

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-: 5 :-

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Second Appeal is dismissed with the above direction making it clear that it will be open to the appellants to file proper suit for declaration of title, recovery of possession, fixation of boundary and such other reliefs as circumstances warranted if they are so advised and are otherwise entitled to such a course impleading all necessary parties to the litigation.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Edward Sirling v. Gracy

Case brief

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Edward Sirling v. Gracy

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