Dismissed

Yohannan Gregory v. Xavier Marcily

Kerala HC25 Jan 2016RSA/735/2013

Case brief

AI extract

What is this about?

In a second appeal regarding property disputes, the High Court dismissed the appeal in limine. The court held that a suit for possession based on title effectively claims title, so its maintainability is not defeated by the absence of an explicit prayer for declaration. Additionally, a kudikidappukaran cannot claim adverse possession against the owner. Finally, tax receipts dating only to 1994 wer

What did the court decide?

Second appeal dismissed in limine; all interlocutory applications closed.

Yohannan Gregory Vs Xavier Marcily — 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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MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937

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RSA.No. 735 of 2013 ()

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----------------------AS 55/2005 of SUB COURT, ALAPPUZHA OS 382/2000 of ADDITIONAL MUNSIFF COURT, ALAPPUZHA

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APPELLANTS/APPELLANTS/DEFENDANTS :

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

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1. YOHANNAN GREGORY, AGED 82 YEARS, KOLLAPARAMBIL HOUSE, PUNNAPRA P.O., ALAPPUZHA-4.

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2. YESUDAS, AGED 43 YEARS,

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S/O.YOHANNAN GREGORY, KOLLAPARAMBIL, PUNNAPRA P.O., ALAPPUZHA-4.

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BY ADV. SRI.MATHEW JAMES

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RESPONDENT/RESPSONDENT/PLAINTIFF :

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

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XAVIER MARCILY PANACKAL PURACKAL HOUSE, PUNNAPRA P.O, ALAPPUZHA-4.

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BY ADV. SRI.K.S.HARIHARAPUTHRAN BY ADV. SRI.GEORGE MATHEW

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = =

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R.S.A.No.735 of 2013.

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= = = = = = = = = = = =

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Dated this the 25^th day of January, 2016.

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J U D G M E N T

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The defendants in a suit for fixation of boundary,

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recovery of possession and injunction are the appellants in this second appeal.

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The first defendant was a kudikidappukaran under the plaintiff. There are three items of properties in the suit. The plaint item No.1 property belongs to the plaintiff. The plaint item No.2 property was the property obtained by the first defendant from the plaintiff by way of kudikidappu. Later, the first defendant transferred the plaint item No.2 property to the second defendant. The plaint item No.2 property lies on the west of plaint item No.1 property. According to the plaintiff, the defendants demolished the eastern boundary of their property and encroached into a portion of the plaint item No.1 property. The portion of the

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RSA.No.580/2015.

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plaint schedule item No.1 property allegedly encroached upon by the defendants is shown in the plaint as item No.3 property. On the said allegations, the plaintiff sought a decree for fixation of the western boundary of the plaint item No.1 property, a decree for recovery of possession of the plaint item No.3 property and also a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule item No.1 property. Defendants resisted the suit. According to them, though they have obtained purchase certificate only in respect of 5 cents of property, they are actually in possession of 8 cents of property and that the excess land in their possession is shown by the plaintiff as plaint item No.3 property. It is their case that they have perfected title to the plaint item No.3 property by adverse possession and limitation. The trial court accepted the case of the plaintiff and decreed the suit. Though an appeal was preferred by the defendants challenging the decision of the trial court,

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RSA.No.580/2015.

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the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by the defendants.

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Heard the learned counsel for the appellants. 4. The learned counsel for the appellants

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contended that in so far as there is no prayer for declaration of title of the plaintiff over plaint item No.1 property, the suit is not maintainable. The learned counsel also contended that though Ext.B1 purchase certificate takes only an extent of 5 cents of property, Ext.B2 series tax receipts would indicate that they were paying tax in respect of 8 cents of property. According to the learned counsel, Ext.B2 series are sufficient to establish their adverse possession over the disputed property.

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I do not find any merit in the contentions

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raised by the learned counsel for the appellants. A suit for recovery of possession based on title is in effect a suit for declaration of the title of the plaintiff as well. As such, it

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RSA.No.580/2015.

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cannot be contended that the suit is not maintainable for the mere reason that the prayer for declaration of title is not sought when the title of the plaintiff was disputed by the defendants. Further, as noted above, the first defendant was admittedly a kudikidappukaran of the plaintiff. A kudikidappukaran is a person occupying a hut or homestead as permitted by the owner of the property. A person who is in permissive occupation of a property cannot claim title to the property adverse to the interest of the owner of the property. On this sole ground the case set up by the defendants that they have perfected title to plaint item No.3 property by adverse possession is liable to be rejected. Again, even going by Ext.B2 series tax receipts, the tax has been paid by the defendants in respect of plaint item No.3 property only from the year 1994 onwards. The suit was filed in the year 2000. In other words, even if the tax payments are accepted as evidence for possession of the property, the defendants have not established continuous

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RSA.No.580/2015.

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possession of the disputed property for a period of 12 years. As such, I do not find any reason to interfere with the impugned decisions of the courts below. The second appeal, in the said circumstances, is dismissed in limine. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR, JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Yohannan Gregory v. Xavier Marcily

Case brief

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Yohannan Gregory v. Xavier Marcily

Case brief

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