Dismissed

Krishnakumar v. Muniyappan

Kerala HC25 Nov 2016RSA/1186/2016

Case brief

AI extract

What is this about?

A regular second appeal challenging findings on title and possession of disputed property. The court held that despite a deed mentioning 15 cents, the actual boundaries contained 17 cents. In the absence of evidence for co-parcenary rights, the appeal was dismissed.

What did the court decide?

The regular second appeal was dismissed; the mandatory injunction directing the appellants to vacate the property was maintained.

Krishnakumar Vs Muniyappan — 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 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938

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RSA.No. 1186 of 2016 ()

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AGAINST JUDGMENT IN AS.210/2014 of I ADDL.DISTRICT COURT, PALAKKAD DATED 30-07-2016

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AGAINST JUDGMENT IN OS.43/2013 of MUNSIFF COURT, CHITTUR DATED 30-08-2014

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APPELLANTS/APPELLANTS/DEFENDANTS:

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KRISHNAKUMAR, AGED 33 YEARS,

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S/O MUNIYAPPAN, RESIDING AT SANKARACHAN PALAYAM

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NATTUKAL.P.O, NELLEPPULLY, CHITTUR TALUK.

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RADHIKA, AGED 30 YEARS, W/O.KRISNAKUMAR, RESIDING AT SANKARACHAN PALAYAM

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NATTUKAL.P.O, NELLEPPULLY, CHITTUR TALUK.

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BY ADV. SRI.RAJESH SIVARAMANKUTTY

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RESPONDENT/RESPONDENT/PLAINTIFF:

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MUNIYAPPAN, AGED 78 YEARS, S/O.LATE PONNU, RESIDING AT SANKARACHAN PALAYAM NATTUKAL.P.O, NELLEPPULLY, CHITTUR TALUK.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.1186 of 2016

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Dated this the 25^th day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The appellants are the defendants in O.S.

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No.43/2013 on the files of the Munsiff's Court, Chittur and the plaintiff is none other than the father of the appellants. The parties are referred to as in the original suit. According to the plaintiff, the plaint schedule property belongs to him by virtue of Ext.A1 title deed. It is his case that even though in Ext.A1 document the extent of property is described as 15 cents, the actual extent comes to 17 cents and he has been residing with family in the said 17 cents of property. It is also averred that the total extent of property within the four boundaries described in Ext.A1 is 17 cents and the same is

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RSA.1186/2016

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: 2 :

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scheduled as plaint schedule property. The 1^st defendant was a toddy tapper and he is a habitual drunkard and usually creating problems and issues in the family and now, he is trying to expel the plaintiff and his wife from the plaint schedule house. He has no legal right over the property or in the house. Even though the plaintiff has filed complaint before police alleging the nuisance caused by the 1^st defendant and he agreed to vacate the house, later he refused to do so. In the above, circumstances, he was constrained to file the aforesaid original suit seeking a mandatory injunction directing the defendant to vacate the plaint schedule residential building.

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The defendants in the written statement contended that the plaintiff has neither title nor possession over the excess two cents of property, which lies on the eastern side of the 15 cents of property. According to the defendants, the said two cents actually belong to Ponnu, the

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RSA.1186/2016

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: 3 :

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grand father of the 1^st defendant and also his sons, the plaintiff and his brother Krishnan and grand children born prior to the Kerala Joint Hindu Family System Abolition Act. In short, according to the 1^st defendant, he is a co-parcenary in the said property and he is having 1/4^th share in two cents of property and building thereon. He had renovated the old building situated in two cents of property by spending two lakhs rupees and resides with the family. According to him, the plaintiff has no right, title or possession over the disputed two cents of property.

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To substantiate the title and possession of 17 cents of property scheduled in the plaint, the plaintiff was examined as PW1 and marked Exts.A1 and A2. No oral evidence was adduced by the defendants but marked Exts.B1 and B2. After considering the evidence on record, the trial court decreed the suit on a finding that the disputed two cents of property form a part of plaint schedule 15 cents

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RSA.1186/2016

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: 4 :

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of property and the defendants have neither title nor possession over the said property.

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In appeal, after re-appreciating the evidence on

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record, the appellate court also affirmed the findings as such without any interference and dismissed the appeal. The said concurrent findings are challenged in this R.S.A.

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Heard learned counsel for the appellants.

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It is the specific case of the plaintiff that, even though in Ext.A1 partition deed the extent of property described as 15 cents only, the actual extent of property is 17 cents and the property is lying as a compact plot within the boundaries described in Ext.A1 title deed and the 1^st defendant has neither title nor possession over the property and he was allowed to reside along with the plaintiff as his son only. On the other hand, the 1^st defendant contended that the disputed excess two cents belong to the father of the plaintiff and it is a co-parcenary property and thereby, it

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RSA.1186/2016

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: 5 :

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belongs to the father of the plaintiff and his sons and the plaintiff and his brother Krishnan and the grandchildren born prior to the Kerala Joint Hindu Family System Abolition Act. So, the 1^st defendant has joint possession over the two cents of property and thereby, he has right over 1/4^th share in the two cents of property and building thereon. In order to substantiate the title and possession over 17 cents of property, the plaintiff has given oral evidence asserting his title and possession over 17 cents, which is lying as a compact plot, within the four boundaries described in Ext.A1 title deed. Ext.A2 is the receipt issued by the Grama Panchayat evidencing payment of tax. Thus, Ext.A2 shows that the building situated in the plaint schedule property belongs to the plaintiff. Even though the 1^st defendants had contended that the disputed two cents is a co-parcenary property, no evidence has been adduced to substantiate the said contention. He could not prove that the two cents

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RSA.1186/2016

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: 6 :

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within the plaint schedule property ever belong to himself and others in common.

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As against the sworn statement of PW1, there is no oath against the oath from the side of the defendants. In the absence of evidence, at no stretch of imagination, it can be presumed that the disputed two cents of property is a coownership holding. On the other hand, the evidence on record shows that 17 cents of property lies as a compact plot within the four boundaries scheduled to the plaint. The

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1^st defendant has never disputed the correctness of the boundaries of the plaint schedule property. As rightly noted by the court below, it is trite law that even if the extent of property shown in a document differs with the actual extent of the land within the boundaries, the boundaries will prevail over the extent shown in the document. It stands well proved that the whole extent of 17 cents lies exactly within the boundaries scheduled to Ext.A1. Thus, the defendant

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RSA.1186/2016

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could not prove any rival or exclusive right, possession or enjoyment over the house appurtenant to the land. If he is residing in the house, the said residence is at the will and pleasure of his father only. He has no legal right to reside in the property. In the absence of legal right to reside in the house, the courts below are justified in passing the mandatory injunction directing him to vacate the house. I do not find any reason to interfere with the concurrent findings of the courts below. No question of law arises for consideration in this appeal.

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Accordingly, this R.S.A. is dismissed.

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Sd/- (K. HARILAL, JUDGE)

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aks/25/11

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// True Copy //

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PA to Judge

Krishnakumar v. Muniyappan

Case brief

What is this about?

What did the court decide?

Krishnakumar v. Muniyappan

Case brief

What is this about?

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