Dismissed

Madhavi v. Felix D/Souza

Kerala HC11 Nov 2016RSA/1149/2016

Case brief

AI extract

What is this about?

This Regular Second Appeal challenges concurrent findings that plaint 'B' schedule property forms part of plaint 'A' schedule property under an Ext. A1 sale deed. The High Court dismissed the appeal, finding no title or possession in the appellant over the disputed land, though noting the alleged donee son was not a necessary party.

What did the court decide?

The Regular Second Appeal was dismissed. There is no question of law for consideration.

Madhavi Vs Felix D/Souza — Partition | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938

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RSA.NO. 1149 OF 2016 (C)

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AGAINST THE JUDGMENT AND DECREE DATED 16-08-2016 IN A.S. NO. 14/2015 OF THE IIIRD ADDITIONAL DISTRICT COURT, KASARAGOD

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AGAINST THE JUDGMENT AND DECREE DATED 17-12-2014 IN O.S. NO.232/2011 OF THE PRINCIPAL MUNSIFF'S COURT, KASARAGOD

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APPELLANT/APPELLANT/DEFENDANT:

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MADHAVI, AGED 68 YEARS, W/O. KORAGA CHETTIYAR, RESIDING AT PILANJATTA, UBRANGALA VILLAGE, KASARGODE TALUK, P.O.KUMBADAJE.

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BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL

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RESPONDENT/RESPONDENT/PLAINTIFF:

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FELIX D/SOUZA, AGED 46 YEARS, S/O. THOMAS D'SOUZA, UBRANGALA VILLAGE, P.O.KUMBADAJE, KASARGODE - 671 121.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A.No. 1149 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2016

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J U D G M E N T

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The appellant is the defendant in the Original

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Suit and the appellant in the Appeal before the lower appellate court. The suit is one for recovery and possession, on the strength of title and also for consequential permanent prohibitory injunction. According to the plaintiff, plaint 'A' schedule property belongs to him, by virtue of Ext.A1 sale deed, executed by the defendant and the same is having an extent of 46 cents. The plaintiff is residing far away from the plaint 'A' schedule property. In the year 2010, he filed a suit O.S. No.108 of 2010, before the Munsiff's Court, Kasargod against the defendant, when the defendant tried to form a pathway through the plaint schedule property, by force and obtained a decree in favour of him. In

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R.S.A.No. 1149 of 2016

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-: 2 :-

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spite of the judgment and decree in O.S. No.108 of 2010, on 15.08.2011, at about 11 am, the defendant

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and her men forcefully encroached and took possession of plaint 'B' schedule property, having an extent of 13½ cents. Thus, now the defendant is in unlawful possession of plaint 'B' schedule property. The defendant has no manner of right, title or interest over any portion of plaint 'B' schedule property, as the same forms a part of plaint 'A' schedule property, which was conveyed to him, by Ext.A1 sale deed and the suit was filed for recovery of possession and consequential permanent prohibitory injunction.

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The defendant has filed a written

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statement, contending that it is not correct to say that the plaint 'B' schedule property is part and parcel of the plaint 'A' schedule property. So

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R.S.A.No. 1149 of 2016

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-: 3 :-

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also, she denied the averment that the defendant has

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no manner of right, title or interest over any portion of plaint 'B' schedule property. But, at the same time, it is admitted that the defendant sold an extent of 46 cents of property in Re-Survey No.17/1B to the plaintiff, by Ext.A1. It is contended that plaint 'A' schedule property contains definite boundary as water channel on the northern side and boulder stone compound wall on the west and the plaintiff has put up glarycedia and hibiscus fence to the north of water channel, east and south of the plaint 'A' schedule property. The defendant has gifted 10 cents of land to the north of water channel to her son, by virtue of a gift deed of 2009 and ever since the gift deed he is in possession and enjoyment of that portion of property.

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It is also contended that the defendant's

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R.S.A.No. 1149 of 2016

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-: 4 :-

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son 'Sasidharan', who is the owner of the aforesaid 10 cents of property has not been arrayed as a party in the suit and thereby the suit is barred by nonjoinder of necessary parties. She further denied the allegation that on 15.08.2011, she encroached plaint 'A' schedule property and took possession of plaint 'B' schedule property.

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On the aforesaid rival pleadings, both parties adduced evidence and the evidence on record consists of the oral testimony of CW1 and Exts.A1 to A4 and Exts.C1 and C2 were marked. No evidence had been adduced by the defendant. After considering the evidence on record, the trial court arrived at a finding that plaint 'B' schedule property forms a part of plaint 'A' schedule property, which stands covered by Ext.A1 sale deed and the defendant has no neither title nor possession over the said property

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R.S.A.No. 1149 of 2016

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-: 5 :-

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and the plaintiff is entitled to recover the said property from the defendant. In Appeal, after reappreciating the evidence on record, the appellate court also concurred with the findings of the trial court and dismissed the appeal. Thus, the legality and propriety of the concurrent findings, whereby the court below found that plaint 'B' schedule property forms a part of plaint 'A' schedule property and the plaintiff is entitled to recover plaint 'B' schedule property from the defendant, are challenged in this Appeal.

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Heard the learned counsel for the

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appellant.

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It is not disputed that the plaintiff obtained plaint 'A' schedule property, by virtue of Ext.A1 sale deed, executed by the defendant herself. The total extent of the property covered by Ext.A1

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R.S.A.No. 1149 of 2016

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is 46 cents. The defendant has not raised any claim over the said property, having an extent of 46 cents. It is the specific case of the plaintiff that on 15.08.2011, at about 11 am, the defendant and her men forcefully encroached a portion of plaint 'A' schedule property and took possession of plaint 'B' schedule property, having an extent of 13½ cents and thereafter, the defendant is in unlawful possession of plaint 'B' schedule property. The defendant has contended that plaint 'B' schedule property is not a part of plaint 'A' schedule property. An Advocate Commissioner had been appointed to measure the property with the aid of a Taluk Surveyor and the Commissioner filed Ext.C1 report and Ext.C2 plan. In the Commission Report, the Commissioner has reported that he has identified the plaint 'A' schedule and plaint 'B' schedule property, as shown to him by

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R.S.A.No. 1149 of 2016

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-: 7 :-

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both parties and he measured with plan made

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available by the plaintiff and also the Taluk Surveyor. He has measured plaint 'A' schedule property and found that out of 46 cents, 32½ cents marked in read colour alone is found in possession of plaintiff and the remaining 13½ cents marked in blue colour covered by the above said title deed of the plaintiff is in possession of the defendant. In short, at present, the extent of property, covered by Ext.A1 title deed, found in possession of plaintiff, is 32½ cents only and remaining 13½ cents is found in possession of the defendant in the suit.

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It is also reported that the improvements in plaint 'A' and 'B' schedule properties are similar in nature and there is no demarcating boundaries separating them each other. Though, the Commissioner was examined in detail. Nothing was

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R.S.A.No. 1149 of 2016

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-: 8 :-

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brought out to discredit the above findings of the Commissioner in the report.

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It is the case of the defendant that she

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had gifted 10 cents of property in the year 2009, in favour of her son. It is pertinent to note that the defendant has no claim over plaint 'B' schedule property. So also, she has no specific pleadings that plaint 'B' schedule property is not a part of plaint 'A' schedule property. Further, the defendant has no case that description of plaint 'A' schedule property is not as that of the description in Ext.A1 sale deed. Thus, there is no confusion or doubt, as regards the identity of the property conveyed by Ext.A1 sale deed, by the defendant to the plaintiff.

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Thus, it stands proved that the defendant has neither title nor lawful possession over plaint 'B' schedule property, as plaint 'B' schedule property

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R.S.A.No. 1149 of 2016

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-: 9 :-

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forms a part of plaint 'A' schedule property.

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Besides the mere pleadings, no evidence has been adduced on the side of the defendant to prove that plaint 'B' schedule property is in possession of her son 'Sasidharan' or some other person other than the defendant.

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However, in the absence of any evidence, proving the title and possession of 'Sasidharan' over plaint 'B' schedule property, 'Sasidharan' is not a necessary party in the present suit. Thus, as rightly held by the courts below, the plaintiff has succeeded in proving her case that plaint 'B' schedule property forms a part of plaint 'A' schedule property and she is entitled to recover plaint 'B' schedule property, which is in unlawful possession of the defendant. I do not find any kind of illegality or impropriety in any of the findings

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R.S.A.No. 1149 of 2016

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-: 10 :-

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of the courts below. No question of law arises for consideration.

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This Regular Second Appeal will stand dismissed

accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Madhavi v. Felix D/Souza

Case brief

What is this about?

What did the court decide?

Madhavi v. Felix D/Souza

Case brief

What is this about?

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