Dismissed

Kunnileri Radha v. Raghavan Mavilipurathoot

Kerala HC5 Jun 2012RSA/384/2012

Case brief

AI extract

What is this about?

In this regular second appeal concerning recovery of possession, the High Court of Kerala dismissed the appeal. The court held that prior judgments confirming title via assignment deeds were unassailable, rendering further identification or specific measurement unnecessary. The plea regarding insanity of the deceased assignor was dismissed as academic due to his death.

What did the court decide?

Second Appeal dismissed; all pending interlocutory applications dismissed.

Kunnileri Radha Vs Raghavan Mavilipurathoot — 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 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934

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RSA.No. 384 of 2012 ()

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AS.12/2008 of SUB COURT, KOYILANDY OS.88/2007 of MUNSIFF COURT, KOYILANDY

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APPELLANT(S)/APPELLANT NO.3 AND LRS OF 1ST APPELLANT/DEFENDANT NO.3 AND LRS OF 1ST DEFENDANT :

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KUNNILERI RADHA

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D/O. IMBICHAN, MODAKKALLUR AMSOM, KOOMULLY DESOM KOYILANDY TALUK, KOZHIKODE.

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KUNNILERI KUTTY MALU (INSANE) REPRESENTED BY GUARDIAN - NEXT FRIEND - KUNNILERI RADHA MODAKKALLUR AMSOM, KOOMULLY DESOM, KOYILANDY TALUK KOZHIKODE.

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KUNNILERI SEKHARAN (INSANE) REPRESENTED BY GUARDIAN - NEXT FRIEND - KUNNILERI RADHA MODAKKALLUR AMSOM, KOOMULLY DESOM, KOYILANDY TALUK KOZHIKODE.

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KUNNILERI GEETHA D/O. IMBICHAN, MODAKKALLUR AMSOM, KOOMULLY DESOM KOYILANDY TALUK, KOZHIKODE.

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BY ADVS.SRI.V.V.ASOKAN

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SMT.RUKHIYABI MOHD KUNHI

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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RAGHAVAN MAVILIPURATHOOT

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S/O. CHATHUKUTTY, SREEJITH NIVAS, MELUR AMSOM DESOM KOYILANDY TALUK, KOYILANDY P.O., KOZHIKODE-673 305.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.384 of 2012

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Dated this the 5^th day of June, 2012.

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JUDGMENT

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This appeal is brought by the 3^rd defendant and the legal representatives of the 1^st defendant from the judgment and decree of the Munsiff's Court Koyilandy in O.S.No.88 of 2007 as confirmed by the learned Sub Judge, Koyilandy in A.S.No.12 of 2008.

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Though this litigation started in the year 2007, the seeds were sawn as early as in the year, 1998. According to the respondent/plaintiff, suit property originally belonged to the deceased 1^st defendant as per partition deed No.1582 of 1965 and he got purchase certificate for the said property. The deceased 1^st defendant assigned that property to one Chandran as per Ext.A2, assignment deed No.1332 of 1995 dated 09.05.1995 conveying his right, title, interest and possession. Chandran executed Ext.A3, assignment deed No.1189 of 1996 dated 09.04.1996 conveying his right, title, interest and possession in the suit property to the respondent/plaintiff. While so, the deceased 1^st defendant accompanied by the 2^nd defendant filed O.S.No.282 of 1998 for a declaration that Ext.A2, assignment deed No.1332 of 1995 executed by the deceased 1^st defendant in favour of Chandran is void for the reason that 1^st defendant on account of insanity was unable to execute the document and for a decree for prohibitory injunction against trespassing into the suit property. That

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RSA No.384/2012 2

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suit was dismissed on 29.11.2003. The appeal arising therefrom - A.S.No.22 of 2004 was allowed in part. While refusing to interfere with the decision of the trial court not to grant declaration prayed for by the deceased 1^st defendant and the 2^nd defendant, they were granted a decree for prohibitory injunction against respondent trespassing into the suit property, without prejudice to the right of the respondent to recover possession of the said property. It is in the light of that decree that respondent filed O.S.No.88 of 2007 for recovery of possession of the suit property on the strength of title he claims as per Exts.A2 and A3.

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Defendants in O.S.No.88 of 2007 contended that the 1^st defendant is insane, the assignment deeds (Exts.A2 and A3) are fraudulently and collusively created and that no right, title or interest has passed on to the respondent/plaintiff by virtue of the said documents. They claimed that they are in possession of the property from 1965 onwards.

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Trial court rejected the contentions raised by the defendants and upheld Exts.A2 and A3 in the light of the judgment and decree in O.S.No.282 of 1998. The plea of limitation raised by the defendants was not pursued at the time of hearing of the suit. Trial court granted a decree for recovery of possession which the first appellate court has confirmed.

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RSA No.384/2012

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Learned counsel has argued that there is no proper identification of the suit property notwithstanding that in the written statement in O.S.No.282 of 1998 respondent ventured to contend that the suit property is not identified and it is part of a larger extent. According to the learned counsel, in a suit for recovery of possession based on title a proper measurement of the property and a plan is essential. It is also contended by the learned counsel that notwithstanding the contention of defendants that the 1^st defendant was insane, trial court has not conducted enquiry under Order XXXII, Rule 15 of the Code of Civil Procedure (for short, “the Code”).

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So far as challenge to the title of respondent is concerned, validity of Exts.A2 and A3 has been upheld by the trial and first appellate courts in O.S.No.282 of 1998 and A.S.No.22 of 2004, specifically finding that the contention of defendants that the 1^st defendant was insane at the time of execution of Ext.A2 is not correct. Therefore, finding of the courts below in the present case as to the title of respondent/plaintiff based on Exts.A2 and A3 is unassailable.

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No doubt, when a suit for recovery of possession based on title is filed a properly measured plan of the property is necessary. That is, since a decision on title cannot be based on surmises and conjunctures. In this case, I found that in view of the judgments and decrees in O.S.No.282 of 1998 and A.S.No.22 of 2004 (Exts.A6 and A7), finding of the trial and first appellate courts

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RSA No.384/2012

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that respondent has title over the suit property as per Exts.A2 and A3 is unassailable. Hence for a decision on title, on the peculiar facts and circumstances of this case a plan of the property is not essential. It is the plaint B schedule property in O.S.No.282 of 1998 which is scheduled in the present suit as seen from the copy of plaint in the former suit. Hence there cannot be any dispute as to the identity of the property as per the description in the plaint schedule. I must also keep in mind that if at all any further identification is required, the executing court is not powerless to appoint an Advocate Commissioner and Surveyor if the executing court found it necessary.

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What remained is the contention regarding alleged insanity of deceased 1^st defendant at the time O.S.No.88 of 2007 was filed. Ext.A2, assignment deed executed by the deceased 1^st defendant is dated 09.05.2005. He, along with the 2^nd defendant filed O.S.No.282 of 1998. Learned counsel would point out that in that suit 1^st defendant was represented by the 2^nd defendant as the next friend. Assuming so, it is seen that 2^nd defendant has filed vakalath and written statement for and on behalf of the 1^st defendant as well and contested the suit. There is no interse dispute between the 1^st defendant and 2^nd defendant who acted on behalf of the 1^st defendant. Moreover, the alleged insanity of the 1^st defendant and whether there should have been an enquiry under Order XXXII, Rule 15 of the Code has now become a matter of academic interest alone due to the death of the 1^st defendant thereafter. In that view of

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RSA No.384/2012

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the matter the contention that there was no enquiry as to the alleged insanity of the 1^st defendant and hence the suit must fail for that reason cannot be entertained.

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Having heard learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring its admission.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Kunnileri Radha v. Raghavan Mavilipurathoot

Case brief

What is this about?

What did the court decide?

Kunnileri Radha v. Raghavan Mavilipurathoot

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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