Dismissed

Prabhakaran Nair v. Jayakumari

Kerala HC8 Mar 2016RSA/1289/2015

Case brief

AI extract

What is this about?

This second appeal challenged a decree for the fixation of a boundary. The High Court held that since defendants did not contest the plaintiff's title or claim of enjoyment, her brief cross-examination admission regarding another's possession did not bar the boundary decree suit.

What did the court decide?

The second appeal was dismissed and all interlocutory applications in the appeal were closed.

Prabhakaran Nair Vs Jayakumari — Landlord and Tenant | 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 P.B.SURESH KUMAR

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TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937

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RSA.No. 1289 of 2015 (C)

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AS 532/2014 of DISTRICT COURT, THIRUVANANTHAPURAM OS 1585/2008 of I ADDL.MUNSIFFF COURT, THIRUVANANTHAPURAM ----------------

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APPELLANTS/APPELLANTS/DEFENDANTS :

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------------------------------------------------------------

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1. PRABHAKARAN NAIR, AGED 65 YEARS, S/O.VASUDEVAN PILLAI, KIZHAKKEKKARA PUTHEN VEEDU, CHERUVAKKAL VILLAGE, KATTELA, SREEKARIAYAM P.O., THIRUVANANTHAPURAM.

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2. PRATHIPA P. AGED 35 YEARS, D/O.PADMAJAM, TC 42427 , KIZHAKKEKKARA PUTHEN VEEDU, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM.

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BY ADVS.SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN

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RESPONDENT/RESPONDENT/PLAINTIFF :

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----------------------------------------------------------

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JAYAKUMARI, AGED 51 YEARS, W/O.SADASIVAN NAIR, SUNIL BHAVAN, MARUTHOOR, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM-695 028.

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BY ADV. SMT.M.HEMALATHA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A.No.1289 of 2015

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-----------------------------------------------Dated this the 8^th day of March, 2016

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JUDGMENT

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The defendants in a suit for fixation of boundary

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are the appellants in this second appeal.

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The first defendant is the brother of the plaintiff and the second defendant is the daughter of the first defendant. The mother of the plaintiff and the first defendant has settled 10 cents of property to the plaintiff and 60 cents of property to the first defendant as per Ext.A1 settlement deed. The 10 cents of property obtained by the plaintiff as per Ext.A1 settlement deed is the plaint A schedule property and the 60 cents of property obtained by the first defendant as per Ext.A1 settlement deed is the

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R.S.A.No.1289 of 2015

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plaint B schedule property. According to the plaintiff, the plaint A schedule property lies on the south of the plaint B schedule property and since there is no boundary separating the plaint A schedule property from the plaint B schedule property, the defendants are attempting to trespass into the plaint A schedule property. The plaintiff claimed a decree for fixation of the northern boundary of the plaint A schedule property on the aforesaid allegation.

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The first defendant contended that out of the 60 cents of property which he got as per the terms of Ext.A1 settlement deed, he settled 21 cents in favour of the second defendant, 35 cents in favour of his son and the remaining 4 cents was surrendered for the formation of the road on the west of the property. In other words, according to him, he has no interest in the property. The second defendant who got the 21 cents of property lying on the immediate north of the plaint A schedule property contended that there is no

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R.S.A.No.1289 of 2015

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property in existence as described by the plaintiff in the plaint A schedule a nd that the attempt of the plaintiff in instituting the suit is to grab a portion of the 21 cents of property which she obtained from the first defendant.

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The Advocate Commissioner appointed in the suit located and identified the suit properties with the aid of a Surveyor with reference to its description in Ext.A1 settlement deed. Ext.C1 is the report of the Advocate Commissioner and Ext.C2 is the plan appended to Ext.C1 report. The plot AHBCDFEA in Ext.C2 plan is the property held by the mother of the plaintiff. The plot AHGFEA in Ext.C2 plan is the property settled in favour of the first defendant as per the terms of Ext.A1 settlement deed and the plot HBLGH in Ext.C2 plan is the property settled in favour of the plaintiff. As per Ext.C1 report, the area of the plot HBLGH is 9.25 cents. The trial court accepted Ext.C1 report and C2 plan submitted by the Commissioner and

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R.S.A.No.1289 of 2015

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decreed the suit as prayed for allowing the plaintiff to put up boundary on LG line in Ext.C2 plan which separates the plaint A schedule property from the plaint B schedule property. Though the defendants took up the matter in appeal, the appellate court confirmed the decision of the trial court. The defendants who were aggrieved by the concurrent decisions against them have thus come up in this second appeal.

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Heard the learned counsel for the appellants as also the learned counsel for the respondent, the plaintiff.

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The learned counsel for the appellants contended that the plaintiff has admitted in cross examination that the first defendant is in possession of the plaint A schedule property and that therefore, she is not entitled to the relief of fixation of boundary sought in the plaint. According to the learned counsel, even if it is conceded that the plaintiff has title to the property identified

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R.S.A.No.1289 of 2015

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by the Advocate Commissioner, she cannot seek a decree for fixation of the boundary of the said property without establishing her possession over the same. He relied on the decision of this Court in Anjili Vellachi vs. Mamuni Bhaskaran [2009 (4) KLT SN6 (Case No.6)] in support of the said contention. Per contra, the learned counsel for the respondent pointed out that the plaintiff has asserted in the plaint that she is in enjoyment of the plaint A schedule property and the said averment in the plaint has not been denied at all by the defendants. As such, according to the learned counsel, merely for the reason that the plaintiff has made a statement in cross examination that the first defendant is in possession of the property, it cannot be said that she has admitted that she is not in possession of the property.

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As rightly pointed out by the learned counsel

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for the respondent, in paragraph 6 of the plaint, the plaintiff

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R.S.A.No.1289 of 2015

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has categorically stated that the plaintiff is in enjoyment of the property allotted to her as per Ext.A1 settlement deed. Neither the first defendant nor the second defendant has denied the said averment in the plaint. As noted above, in the written statement filed by the second defendant, what is contended by the second defendant is that there is no such property as described by the plaintiff in the plaint A schedule . In other words, neither the first defendant nor the second defendant has a case that they are in possession of the property settled in favour of the plaintiff as per Ext.A1 settlement deed. True, during cross examination, the plaintiff has stated that the first defendant is in possession of the plaint A schedule property. As noted above, since the defendants have no case that they are in possession of the plaint A schedule property, the solitary statement made by the plaintiff in cross examination cannot be treated as an admission on the part of the plaintiff that she is not in

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R.S.A.No.1289 of 2015

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possession of the plaint A schedule property. In so far as the defendants have no case that they are in possession of the plaint A schedule property, they cannot be heard to contend that the plaintiff is not entitled to the decree sought by her in the suit. In the said view of the matter, there is no merit in the second appeal and the same is, accordingly, dismissed. All the interlocutory applications in the second appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Prabhakaran Nair v. Jayakumari

Case brief

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Prabhakaran Nair v. Jayakumari

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