This Second Appeal concerned a suit for recovery of possession. The High Court dismissed the appeal, holding that plaintiffs failed to prove title independently or account for the surrendered property area when determining possession on the relevant date.
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 K.HARILAL
WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938
RSA.No. 542 of 2016 (F)
AGAINST THE JUDGMENT IN AS 58/2010 of SUB COURT, OTTAPPALAM DATED 14-01-2016.
AGAINST THE JUDGMENT IN OS 89/2005 of MUNSIFF COURT, OTTAPPALAM, DATED 30-03-2010.
APPELLANTS/APPELLANTS/SUPPL. PLAINTIFFS 2 TO 4:
1. SUBHADRA RAMACHANDRAN, 65 YEARS, W/O. LATE RAMACHANDRA PANICKER.
2. ACHUTHANANDAN, 44 YEARS, S/O. SUBHADRA RAMACHANDRAN.
3. SUNITHA, 46 YEARS, D/O. SUBHADRA RAMACHANDRAN.
ALL ARE RESIDING AT KAKKARUMADATHIL HOUSE, CHERPULASSERY AMSOM DESOM AND POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.R.SREEHARI SRI.SACHIN VYAS
RESPONDENT/RESPONDENT/DEFENDANT:
NARAYANANKUTTY PANICKER, 75 YEARS, S/O. LAKSHMIKUTTY AMMA, KAKKARUMADATHIL HOUSE, KATTUKULAM AMSOM DESOM AND POST, OTTAPALAM TALUK, PALAKKAD DIST, PIN- 679 514. BY ADV. SRI.K.RAVI (PARIYARATH)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL, J.
-----------------------------------------------------R.S.A. No.542 of 2016-F
-----------------------------------------------------Dated this the 26th day of October, 2016
JUDGMENT
The appellants are the supplementary plaintiffs 2 to 4 in O.S. No.89/2005 on the files of the Munsiff's
Court, Ottappalam, as well as the appellants in A.S. No.58/2010 on the files of the Sub Court, Ottappalam. It is the case of the plaintiffs that plaint 'B' Schedule property forms part of 'A' Schedule property and the defendant trespassed into the 'B' Schedule property and reduced the same to his possession on 18/2/2004. On the other hand, the defendant contended that the southern Panchayat road has come into existence after Ext.A1 and a portion of 'A' Schedule property was taken for the formation of the Panchayat road. The Commissioner has reported that, on physical
R.S.A. No.542 of 2016 -: 2 :-
appearance, the plot shown as 'B' is lying as a part and parcel of 'A' Schedule property. No attempt had been made to identify the property that has been taken for the formation of the Panchayat road on the southern side.
R.S.A. No.542 of 2016
-: 3 :-
the possession of the defendant. As rightly held by the courts below, that it is not a sufficient ground to arrive at a finding that the excess portion is the property taken from 'A' Schedule property, particularly when the appellants have surrendered a considerable extent of property for the formation of southern Panchayat road. The plaintiffs, who claim possession, based on the title, must prove the title independently by adducing a positive evidence. But, here there is no evidence to show that the appellants were in possession of 61 cents as on 18/2/2004, the date of the alleged trespass. Unless and until the title is proved independently, the plaintiffs are not entitled to get recovery of possession.
R.S.A. No.542 of 2016 -: 4 :-
of the Panchayat road, the reduction of the property from the plaintiffs' account cannot be determined on the basis of the fact that the defendant is in possession of the property in excess. The plaintiffs have to prove the title independently and they cannot rely on the weakness of the defendant's case, in a suit for recovery of possession.
This Regular Second Appeal is dismissed.
Sd/- (K. HARILAL, JUDGE)
Nan/
//true copy// P.S. to Judge
1 issue framed by the court
Whether the appellants, claiming title to the property, proved their possession excluding the portion surrendered for the Panchayat road.
SUBHADRA RAMACHANDRAN AND ORS.
NARAYANANKUTTY PANICKER
K. HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
