In a second appeal regarding a suit for injunction over disputed properties, the High Court held that possession is a question of fact not open to challenge in appeal. Finding for the plaintiff based on title and presumption under the Evidence Act, the court dismissed the appeal.
The second appeal was dismissed; the interlocutory applications in the appeal were closed.
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
FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937
RSA.No. 1183 of 2015
JUDGMENT DATED 24-10-2014 IN AS 13/2004 OF SUB COURT, ATTINGAL JUDGMENT DATED 29-11-2003 IN OS 177/2002 OF MUNSIFF COURT, VARKALA
APPELLANT(S)/RESPONDENTS IN AS NO.13/2004 & DEFENDANTS IN OS NO.177/2002:
1. ABHILASH, AGED 57, S/O. SREEDHARAN, RESIDING AT ANILA MANDIRAM, VAKKOM DESOM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 308.
2. SASI, AGED 59, S/O. RAMAKRISHNAN, RESIDING AT KAYATHUVILAKAM, VAKKOM DESOM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 308.
3. BABY, AGED 57, D/O. RAMAKRISHNAN, RESIDING AT THODIYIL VEEDU, VAKKOM DESOM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 308.
BY ADVS.SMT.T.S.MAYA (THIYADIL) SMT.K.A.SUNITHA
RESPONDENT/APPELLANT IN AS NO.13/2004 & PLAINTIFF IN OS.NO.177/2002:
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THANKAMMA, AGED 69, D/O.GOVINDAN, KOCHUVADAYIL VEEDU, VAKKOM DESAM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695 308.
BY ADV. SRI.G.S.REGHUNATH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv
P.B.SURESH KUMAR, J.
R.S.A.No.1183 of 2015
-----------------------------------------------Dated this the 8th day of January, 2016
JUDGMENT
The defendants in a suit for injunction are the appellants in this second appeal.
R.S.A.No.1183 of 2015 2
suit properties on the basis of Ext.A2. As per Ext.A2, the power of attorney holder of Devaki transferred the plaint item No.1 property absolutely to the plaintiff. As regards the plaint item No.2 property is concerned, as per the said document, the plaintiff has acquired only 1/7th undivided right of Devaki over the said property. It is alleged by the plaintiff that the defendants who do not have any right over the suit properties are attempting to trespass into the same. The defendants resisted the suit. The case set up by the defendants is that Devaki is a citizen of Malaysia and that she has not come to India for many years. According to them, they are in possession of the suit properties. As far as the plaint item No.2 property is concerned, it was specifically contended by the defendants that since Devaki was not in India at the time when the partition deed referred to above was executed, the brother of the father of the first defendant was authorised as per the terms of the
R.S.A.No.1183 of 2015 3
partition deed itself to hold the said property allotted to the share of Devaki until she comes back to India and accordingly, he was holding the property of Devaki covered by the partition deed. It is also their case that the father of the first defendant obtained possession of the said property from his brother based on an agreement. It is their further case that the first defendant had obtained the said property from his father. The trial court dismissed the suit holding that the plaintiff has not established possession over the suit properties. The plaintiff took up the matter in appeal. The appellate court reversed the decision of the trial court and decreed the suit holding that the plaintiff has established possession over the suit properties. Aggrieved by the decision of the appellate court, the defendants have come up in this second appeal.
as also the learned counsel for the respondent/plaintiff.
R.S.A.No.1183 of 2015 4
suit of this nature, the only question to be considered is as to the possession of the plaintiff. The question as to possession is a pure question of fact. The appellate court found on facts that the plaintiff has established possession over the suit properties. The finding rendered by the appellate court as to possession cannot be challenged in this second appeal filed under Section 100 of the Code of Civil Procedure.
R.S.A.No.1183 of 2015 5
authenticated before the Indian Consul at Kula Lambur. Under Section 85 of the Evidence Act, the court is bound to presume that Ext.A1 is duly executed and authenticated. Therefore, the case of the plaintiff that she has acquired title to the plaint item No.1 property and 1/7th undivided right over plaint item No.2 property has to be accepted. As such, in the light of the principle that possession follows title, the appellate court cannot be faulted for having found that the plaintiff has established possession over the suit properties. True, as far as plaint item No.2 property is concerned, the plaintiff has acquired only 1/7th undivided right over the same, but as co-owner, the plaintiff is entitled to possess the whole property. As far as the case set up by the first defendant is concerned, there is nothing on record to infer that the first defendant has obtained possession over the suit properties. Further, even according to the first defendant, his father's brother was holding possession of
R.S.A.No.1183 of 2015 6
the property owned by Devaki as a trustee. As such, the case of the first defendant that his father's brother transferred the property to his father as per the terms of an agreement cannot be accepted.
In the said view of the matter, there is absolutely no merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in this appeal are closed.
P.B.SURESH KUMAR, JUDGE.
smm
3 issues framed by the court
Whether the appellate court's finding on the question of possession could be challenged in a second appeal.
Whether the plaintiff established possession over the suit properties despite partial acquisition of rights.
Whether the defendants' claim of possession over the properties is tenable based on recorded evidence.
1 provisions across 1 enactments
ABHILASH
SASI
BABY
THANKAMMA
P.B. SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
