Dismissed

Joseph v. Francis @ Baby

Kerala HC8 Jan 2016RSA/1323/2014

Case brief

AI extract

What is this about?

A second appeal in a suit for injunction arising from a property dispute between brothers. The appellant challenged the acceptance of an Advocate Commissioner report that did not measure the defendant's possession. The Court dismissed the appeal, holding that the finding on possession was a question of fact not subject to interference in a second appeal, leaving the title dispute open for a separa

What did the court decide?

The second appeal filed in RSA No. 1323 of 2014 is dismissed. All interlocutory applications are closed.

Joseph Vs Francis @ Baby — 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 P.B.SURESH KUMAR

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FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

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RSA.No. 1323 of 2014 ()

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AS 195/2009 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM OS 88/1998 of PRL.SUB COURT, KOTTAYAM

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APPELLANT/APPELLANT/DEFENDANT :

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JOSEPH, AGED 74 YEARS, S/O.JOSEPH, THOTTUMKAL THEKKETHIL HOUSE, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, NOW RESIDING AT VALIYAPARAMBIL HOUSE, THOVALA KARA, KATTAPPANA, IDUKKI DISTRICT.

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BY ADV. SMT.A.SREEKALA

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RESPONDENT/RESPONDENT/PLAINTIFF :

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

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FRANCIS @ BABY, AGED 58 YEARS, S/O.JOSEPH, THOTTUMKAL THEKKETHIL HOUSE, MATTAKKARA KARA, AKALAKUNNAM VILLAGE, KOTTAYAM DISTRICT-686564.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2016, 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.1323 of 2014

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Dated 8^th January, 2016.

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J U D G M E N T

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The defendant in a suit for injunction is the appellant in this second appeal. There are two items of properties in the suit. Item No.1 is a property measuring 60 cents obtained by the plaintiff as per Ext.B3 settlement deed and item No.2 is a property measuring 1 acre and 35 ½ cents obtained by the plaintiff as per Ext.B4 sale deed. It is alleged by the plaintiff that the defendant who is none other than his brother and who is holding properties adjacent to the suit properties, is attempting to trespass into the suit properties. The defendant resisted the suit contending that he is only in possession of property which he obtained as per Ext.A2 settlement deed from his mother. According to him, his mother obtained 1 acre and 55 cents of property as per Ext.A1 sale deed and out of the said 1 acres and 55 cents, 1 acre and 5 cents of property was transferred to him by his mother as per Ext.A2 settlement deed.

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RSA 1323 of 2014

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It is also the case of the defendant that the remaining 50 cents of property is in the possession of the brother of the parties namely, V.J.Sebastian. An Advocate Commissioner was appointed in the suit to identify and locate the suit properties. Exts.C2 and C2(a) are the report and plan submitted by the Advocate Commissioner. In Ext.C2 report, the Advocate Commissioner has stated that the plaintiff is in possession of 1 acre and 79 cents of property out of the property obtained by him as per Exts.B3 and B4 documents. Accepting the report of the Advocate Commissioner, the trial court decreed the suit restraining the defendant from trespassing into the said 1 acre and 79 cents found to be in the possession of the plaintiff. Though the defendant took up the matter in appeal, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. The defendant, who is aggrieved by the concurrent decisions against him has thus come up in this second appeal.

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Heard the learned counsel for the appellant.

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The learned counsel for the appellant contended

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RSA 1323 of 2014

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that the Advocate Commissioner has submitted Ext.C2 report and C2(a) plan without measuring the property in the possession of the defendant and as such, the courts below should not have accepted the same.

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As noted above, the case of the plaintiff is that he

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is in his possession of 1 acre and 95 ½ cents of property covered by Exts.B3 and B4 documents. The case of the defendant, on the other hand, is that he is in possession of 1 acre and 5 cents of property covered by Ext.A2 settlement deed. In Ext.C2 report, the Advocate Commissioner has reported that only an extent of 3.09 acres of property is available in the possession of the plaintiff, defendant and their brother V.J.Sebastian. The Advocate Commissioner has also reported that though the title deeds of the plaintiff refers to 1 acre and 95 ½ cents of property, he is actually in possession of only 1 acre and 79 cents of property. Ext.C2 report and Ext.C2 (a) plan do not indicate the extent of property in the possession of the defendant. But, the suit being one for injunction, the finding rendered by the courts below that the plaintiff is in

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RSA 1323 of 2014

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possession of 1 acre and 79 cents of property being a finding on a pure question of fact, I do not think that I can interfere with the said finding rendered, in the second appeal filed under Section 100 of the Code of Civil Procedure. In the said view of the matter, there is no merit in the second appeal and the same is accordingly, dismissed. However, it is made clear that the judgment in the present suit as confirmed by this Court in this second appeal will not preclude the defendant from instituting a suit for recovery of possession based on title, if he has a case that any portion of his property is in the possession of the plaintiff. It is also made clear that Ext.C2 report and Ext.C2(a) plan have been accepted for the purpose of the present suit only for deciding the possession of the parties and not for determining the title of the parties over the suit properties. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Joseph v. Francis @ Baby

Case brief

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What did the court decide?

Joseph v. Francis @ Baby

Case brief

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