Dismissed

Kuttan v. Gopalankutty

Kerala HC19 Feb 2016RSA/1390/2015

Case brief

AI extract

What is this about?

This second appeal by defendants/appellants against an ex parte suit decree admitting 956 days delay was dismissed. The court rejected the plea to condone delay and hold a new trial on merits, held that the plaintiff chose not to sue other heirs, and found no merit in disputes regarding property identity.

What did the court decide?

The second appeal was dismissed. All interlocutory applications in the appeal are closed.

Kuttan Vs Gopalankutty — Property and Title | 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 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937

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RSA.No. 1390 of 2015 ()

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IA NO. 1018/2013 IN AS 31/2013 AND AS 31/2013 OF SUB COURT, OTTAPPALAM OS.NO. 193/2009 OF MUNSIFF COURT, OTTAPPALAM DATED 24-07-2010

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APPELLANTS/APPELLANTS/DEFENDANTS :

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1. KUTTAN AGED 51 YEARS, S/O.KUNCHEKKAN KUNCHATTA CHALAKKIL, ELAMBULASSERY AMSOM, POMBRA DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT.

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2. SANTHA AGED 46 YEARS, W/O.KUTTAN, KUNCHATTA CHALAKKIL, ELAMBULASSERY AMSOM POMBRA DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.P.JAYARAM

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RESPONDENT/RESPONDENT/PLAINTIFF :

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GOPALANKUTTY

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AGED 59 YEARS, S/O.CHERUKODE SRAMBIKKAL BHARGAVI AMMA ELAMBULASSERY AMSOM, POMBRA DESOM, P.O. POMBRA OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-678 595.

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BY ADV. SRI.R..SREEHARI (CAVEATER ADVOCATE)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, 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.1390 of 2015

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-----------------------------------------------Dated this the 19^th day of February , 2016

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JUDGMENT

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The defendants in a suit for recovery of

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possession are the appellants in this second appeal.

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The plaint schedule properties belong to the

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plaintiff by virtue of Exts.A1 and A2 documents. According to the plaintiff, the defendants have trespassed into the plaint C schedule property. The defendants resisted the suit, contending that the father of the first defendant Kunchekkan has been in possession of the plaint C schedule property for more than 40 years and one his death, they are continuing in possession of the said property. According to the defendants, in view of the long and continuous possession of the plaint C schedule property by them, they

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R.S.A.No.1390 of 2015

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have perfected title to the plaint C schedule property by adverse possession and limitation.

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Though the defendants filed written

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statement raising a plea of adverse possession, when the suit came up for trial, they remained absent. Consequently, the suit was decreed ex parte. Thereupon, the defendants filed I.A.No.1664 of 2010 seeking orders to set aside the ex parte decree against them. The said application was dismissed by the trial court and the decision therein was confirmed in appeal. Though the decision of the appellate court was challenged by the defendants before this Court in C.R.P.No.98 of 2013, the same was dismissed. Thereupon, the defendants preferred an appeal challenging the ex parte decree against them with a petition to condone the delay of 956 days in filing the appeal. In the affidavit filed in support of the application, it was explained that the delay occurred on account of the pendency of I.A.No.1664 of 2010 and the

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R.S.A.No.1390 of 2015

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proceedings initiated by them challenging the order in the said interlocutory application. The appellate court did not accept the said reason as a sufficient cause for condoning the long delay of 956 days in filing the appeal. Consequently, the delay petition as also the appeal were dismissed. The defendants, who are aggrieved by the said decision of the appellate court, 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 plaintiff.

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The learned counsel for the appellants contended that the appeal preferred by the appellants was an appeal on the merits of the matter and as such, the appellate court should have decided the appeal on merits, after condoning the delay occurred in filing the appeal. According to the learned counsel for the appellants, since the defendants are in possession of the plaint C schedule

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property for so many years, if they are given an opportunity to adduce evidence, they would certainly be able to establish their case that they have perfected title to the plaint C schedule property by adverse possession and limitation. As noted above, the appellants remained absent in the proceedings when they were to adduce evidence in support of their contention. Later, though the appellants filed I.A.No.1664 of 2010 seeking orders to set aside the ex parte decree passed against them, the same was dismissed by the court and the decision therein has been confirmed not only by the appellate court but also by this Court in C.R.P.No.98 of 2013. Having suffered the aforesaid order, the appellants cannot be heard to contend that they shall be given another opportunity to adduce evidence to establish their contention.

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The learned counsel for the appellants also contended that the suit is bad for non joinder of necessary

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parties. It is seen that the specific case raised by the appellants in the written statement filed by them was that Kunchekkan, the father of the first defendant was in possession of the suit property. According to the learned counsel, the other children of Kunchekkan are also necessary parties to the suit. I do not find any merit in the said submission. The plaintiff being the master of the suit, if he does not want a decree against the aforesaid persons, he cannot be compelled to seek relief against the said persons.

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The learned counsel for the appellants then contended that the identity of the property sought to be recovered has been disputed by the defendants and therefore, the courts below ought not have passed the decree in such a suit, that too, for recovery possession. A copy of the written statement filed by the defendants was made available to me at the time of hearing. The written statement filed by the defendants does not indicate that the

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defendants have disputed the identity of the property sought to be recovered. On the other hand, it was specifically contended by them that they have perfected title to the said property by adverse possession and limitation. Had there been any dispute as to the identity of the property sought to be recovered, the defendants would not have been in a position to raise a plea of adverse possession and limitation. As such, there is no substance in the said contention also.

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There is, therefore, no merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Kuttan v. Gopalankutty

Case brief

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Kuttan v. Gopalankutty

Case brief

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