Dismissed

Baby v. Alex Montiero @ Alexander Xavier

Kerala HC4 Feb 2016RSA/878/2015

Case brief

AI extract

What is this about?

This regular second appeal challenging eviction decrees was dismissed. Upholding findings that the respondent is the rightful proven legal representative entitled to possession, the Court however granted the appellant until July 31, 2016, to vacate the building.

What did the court decide?

Second appeal dismissed; appellant granted time till 31.7.2016 to surrender vacant possession of the suit building.

Baby Vs Alex Montiero @ Alexander Xavier — 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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THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937

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RSA.No. 878 of 2015 (D)

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----------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 56/2011 OF SUB COURT, KASARAGOD DATED 31-03-2015)

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(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 148/2010 OF PRINCIPAL MUNSIFF COURT, KASARAGOD DATED 29-06-2011)

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APPELLANT/APPELLANT/DEFENDANT:

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MRS.BABY, DAUGHTER OF GOWRAMMA AND W/O. VISHWANATHA,AGED 65 YEARS, RESIDING AT KALIYOOR HOUSE, SUNKADAKATTE, KALIYOOR VILLAGE, POST VORKADI - 671 323, KASARAGOD TALUK AND DISTRICT.

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BY ADVS.SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SRI.P.VISHNU PRASAD

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RESPONDENT/RESPONDENT/PLAINTIFF:

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MR. ALEX MONTIERO, SON OF LATE XAVIER JEFFRY MONTERIO,AGED 57 YEARS, FLAT NO. T. 66, ROOM NO. 313, 3RD FLOOR, PRATEEKSHA NAGAR, KOLIWADA, MUMBAI - 400 022.

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BY ADVS. SRI.T.R.RAVI SRI.JAWAHAR JOSE SRI.ARUN AJAY SHANKAR

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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R.S.A.No.878 of 2015

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-----------------------------------------------Dated this the 4^th day of February, 2016

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JUDGMENT

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The defendant in a suit for eviction is the appellant

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in this second appeal.

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According to the plaintiff, the suit building belonged to his mother Sobina Montiero and that on her death, the same devolved on him being her only surviving legal representative. It is alleged by the plaintiff that the suit building was let out by his mother to the mother of the defendant on 1.5.1983 and that since the tenancy arrangement with the defendant was terminated, he is entitled to get vacant possession of the suit building. The defendant resisted the suit by filing a written statement. In

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R.S.A.No.878 of 2015

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the written statement filed by the defendant, she admitted that the suit building belonged to Sobina Montiero. However, she contended that the plaintiff is not the son of Sobina Montiero and that therefore, he has no locus standi to institute the suit. The trial court found that the plaintiff is the son of Sobina Montiero and consequently, decreed the suit. Though the defendant took up the matter in appeal, the appellate court, on a re-appraisal of the materials on record, confirmed the decision of the trial court. The defendant who is aggrieved by the concurrent decisions against her, has thus come up in this second appeal.

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Heard the learned counsel for the appellant as

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also the learned counsel for the respondent.

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The learned counsel for the appellant pointed out that the findings rendered by the courts below that the plaintiff is the son of the landlady Sobina Montiero is based on Ext.A1 Letters of Administration. According to the

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R.S.A.No.878 of 2015

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learned counsel, the courts below were not justified in rendering a finding that the plaintiff is the son of Sobina Montiero based on Ext.A1. It was pointed out by the learned counsel for the appellant that there is nothing on record to establish that the plaintiff is the son of Sobina Montiero.

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I do not find any merit in the contentions raised by the learned counsel for the appellant. Of course, Ext.A1 is the letters of administration issued by the Bombay High Court in respect of the assets of one Jeffry Montiero. It is recited in Ext.A1 that the plaintiff is the son of Jeffry Montiero. This fact is not disputed by the defendant. The case of the defendant is only that the plaintiff has nothing to do with Sobina Montiero. It is averred by the plaintiff in the plaint that Sobina Montiero is the wife of Jeffry Montiero and that the plaintiff is their only legal representative. The plaintiff has given evidence in the proceedings as PW1 in tune with his pleadings in the plaint. Though there was a

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R.S.A.No.878 of 2015

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suggestion to the plaintiff that he is not the son of Sobina Montiero, there is not even a suggestion that he is not the son of Jeffry Montiero or that Jeffry Montiero is not the husband of Sobina Montiero. As such, according to me, even eschewing Ext.A1, there are sufficient materials on record to establish that the plaintiff is the son of Sobina Montiero. While the defendant contends that the plaintiff is not the son of Sobina Montiero, there is no case for her as to the identity of the plaintiff. She has also no case as to who are the real legal representatives of Sobina Montiero. In the said circumstances, I do not find any reason to interfere with the impugned decisions.

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Having found that the contentions raised by the appellant are not found acceptable to this Court, alternatively, the learned counsel sought time to surrender vacant possession of the suit building. Having regard to the fact that the defendant is in occupation of the building from

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R.S.A.No.878 of 2015

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the year 1983 onwards, I deem it appropriate to grant to the defendant time upto 31.7.2016 to surrender vacant possession of the building to the plaintiff.

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In the result, the second appeal is dismissed. However, the defendant is granted time to surrender vacant possession of the suit building till 31.7.2016 on condition that she shall file an affidavit before the trial court within two weeks from the date of receipt of a copy this judgment, unconditionally undertaking to surrender vacant possession of the building on or before 31.7.2016.

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P.B.SURESH KUMAR, JUDGE.

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smm

Baby v. Alex Montiero @ Alexander Xavier

Case brief

What is this about?

What did the court decide?

Baby v. Alex Montiero @ Alexander Xavier

Case brief

What is this about?

What did the court decide?

What the court decided

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