High Court of Kerala dismissed a second appeal in a property dispute where the lower courts upheld a suit to set aside a gift deed. The court refused interference under Section 100 CPC but granted appellants time to surrender possession due to the health of a third party.
Appellants granted time till 15.5.2016 to surrender vacant possession on conditions of filing affidavits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 3RD DAY OF NOVEMBER 2015/12TH KARTHIKA, 1937
RSA.No. 962 of 2015
AS 3/2015 OF ADDITIONAL SUB COURT, KOTTAYAM, DATED 10-04-2015 OS 198/2004 OF MUNSIFF COURT, CHANGANACHERRY
APPELLANT(S)/APPELLANTS/DEFENDANTS:
1. PANKIAMMA, W/O.KARUNAKARAN, ASWATHY SADANAM HOUSE, PARAL KARA, VAZHAPPALLY WEST VILLAGE, CHANGANACHERRY, KOTTAYAM.
2. MOHANAN,
BY ADVS.SRI.M.P.MADHAVANKUTTY SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H.
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
SARADA W/O.SREEDHARAN, PUTHENPARAMBIL HOUSE, THRIKODITHANAM KARA, THRIKODITHANAM VILLAGE, CHANGANACHERRY, KOTTAYAM. PIN - 686 001.
BY ADV. SRI.C.S.SUNIL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
P.B.SURESH KUMAR, J.
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R.S.A.No.962 of 2015.
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Dated this the 3rd day of November, 2015.
J U D G M E N T
Though notice before admission was ordered in
this matter on 1.9.2015, there is no appearance for the respondent.
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RSA.No.962/2015.
he is in possession of the suit property and the same was dismissed. Thereafter, the first defendant executed Ext.A2 gift deed in respect of the suit property in favour of the second defendant ignoring the earlier sale deed executed by her in favour of Vasappan. The plaintiff thereupon filed the present suit to set aside Ext.A2 gift deed. She also claimed a decree for recovery of possession. The suit was resisted by defendants 1 and 2 contending that even though the first defendant was given the suit property and the second defendant was given the B schedule property in Ext.A3 gift deed, under a mistaken impression as to the identity of the properties, the first defendant was holding the property of the second defendant and the second defendant was holding the suit property. In other words, according to the defendants, the first defendant could not have transferred title and possession over the suit property to Vasappan and consequently, the plaintiff has not acquired any right in the suit property. The trial court rejected the contentions raised
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RSA.No.962/2015.
by the defendants and decreed the suit. Though the matter was taken up in appeal by defendants, the appellate court confirmed the decision of the trial court. Defendants 1 and 2 have thus come up in this second appeal challenging the concurrent decisions against them.
one obtained by the first defendant as per Ext.A3 settlement deed. Ext.A4 sale deed executed by the first defendant in favour of Vasappan indicates that the same is in respect of the suit property. After having executed Ext.A4 sale deed, the first defendant cannot be heard to contend that she has any more rights in the property. Ext.A2 gift deed, in the circumstances, is invalid. The second defendant does not claim title to the property. He only claims possession over the property. The claim of possession raised by the second defendant over the property was turned down in the earlier suit. In the said view of the matter, there is absolutely no
RSA.No.962/2015.
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reason for this Court to interfere with the decisions of the courts below, in exercise of the power under Section 100 of the Code of Civil Procedure.
In the result, the second appeal is dismissed. However, the appellants are granted time till 15.5.2016 to surrender vacant possession of the suit property to the
RSA.No.962/2015.
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plaintiff on condition that they shall file affidavits before the execution court within two weeks from the date of receipt of a copy this judgment, unconditionally undertaking to surrender vacant possession of the property on or before 15.5.2016. All the interlocutory applications in the appeal are closed.
Sd/- P.B.SURESH KUMAR,
JUDGE.
Kvs/-
// true copy //
PA TO JUDGE.
2 issues framed by the court
Whether there is sufficient reason to interfere with the concurrent decisions below dismissing the appeal.
Whether the appellants should be granted time to surrender vacant possession of the suit property.
1 provisions across 1 enactments
Pankiamma
Mohan
Sarada
P.B.Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
