Dismissed

Karthiyayini (Died) v. v.K.Thankamma

Kerala HC16 Oct 2017RSA/1134/2016

Case brief

AI extract

What is this about?

A regular second appeal challenging the concurrent decrees of the Munsiff's Court and Subordinate Judge's Court in a property partition and recovery suit. The High Court found no substantial question of law and dismissed the appeal, upholding the plaintiffs' title to the property.

What did the court decide?

The regular second appeal was dismissed with no order as to costs and all pending interlocutory applications were closed.

Karthiyayini (Died) Vs v.K.Thankamma — Partition | Kerala HC (2017)

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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 B.KEMAL PASHA

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MONDAY, THE 16TH DAY OF OCTOBER 2017/24TH ASWINA, 1939

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RSA.No. 1134 of 2016 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 06-02-2016 IN AS 26/2010 of I ADDITIONAL SUB COURT, ERNAKULAM

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AGAINST THE JUDGMENT AND DECREE DATED 01-07-2008 IN OS 9/2006 of PRINCIPAL MUNSIFF'S COURT, ERNAKULAM

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APPELLANTS/APPELLANTS/DEFENDANTS:

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KARTHIYAYINI (DIED)

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W/O. P.K. DAMODARAN, PUTHIYEDATH HOUSE, PONNURUNNI DESOM, MAMBRA ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK, VYTILA P.O., KOCHI-682 019.

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P.D. SAJEEVAN ,

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AGED 42 YEARS, S/O. DAMODARAN, PUTHIYEDATH HOUSE, PONNURUNNI DESOM, MAMBRA ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK, VYTILA P.O., KOCHI-682 019.

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P.D.VALSALA,

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AGED 60 YEARS, W/O. SATHYAN, PULIANTHARA THUNDIYIL HOUSE, CHAMBAKKARA , THRIPOONITHURA, POONITHURA VILLAGE, KANAYANNOOR TALUK, POONITHURA P.O.,

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BY ADV. SRI.MOHAN C.MENON

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RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 4 AND DEFENDANTS 3 & 5:

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V.K.THANKAMMA

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AGED 82 YEARS, W/O. PADMANABHAN, PUTHIYEDATH HOUSE, PONNURUNNI DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. PIN- 682 038.

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RSA.No. 1134 of 2016 (B)

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RETHI,

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AGED 49 YEARS, D/O. PADMANABHAN, PUTHIYEDATH HOUSE, PONNURUNNI DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. PIN- 682 038.

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KUTTAN,

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AGED 44 YEARS, S/O. PADMANABHAN, PUTHIYEDATH HOUSE, PONNURUNNI DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. PIN- 682 038.

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RAJAN,

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AGED 64 YEARS, HUSBAND OF RETHI, S/O. NARAYANAN, PUTHUKULANGARA HOUSE, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNOR TALUK, NOW RESIDING AT PUTHUKULANGARA HOUSE, RESEARCH ROAD, PONNURUNNI, PIN- 682038.

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1. P.D. SAROJINI (STRUCK OFF) AGED 60 YEARS, W/O. SUDHAKARAN, D/O. DAMODARAN, AREKKADI THUNDIYIL HOUSE, PONNURUNNI DESOM, ASAN ROAD, POONITHURA VILLAGE,KANAYANNOR TALUK, VYTTILA P.O., PIN- 682038.

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(STRUCK OFF)

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1. SREEKANT (STRUCK OFF) AGED 20 YEARS, S/O. C.K. SOMAN AND LATE SREEKALA, CHAKKALACKAL HOUSE, TEMPLE ROAD CROSS LINE-5, AYYAPANKAVU, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM,KOCHI-682 018.

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1. C.K.SOMAN,

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(STRUCK OFF)

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CHAKKALACKAL HOUSE, TEMPLE ROAD CROSS LINE-5 AYYAPPANKAVU, ERNAKULAM VILLAGE KANAYANNOOR TALUK, ERNAKULAM, KOCHI-682 018 (RESPONDENTS 5 TO 7 ARE STRUCK OFF FROM THE PARTY ARRAY AT THE RISK AND COST OF THE APPELLANTS AS PER ORDER DATED 01.08.2017 IN IA.1894/2017 IN RSA.1134/2016)

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R1 -R 4 BY ADVS. SRI.N.NEELAKANDHAN NAMBOODIRI

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SRI.P.S.NARAYANA RAJA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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R.S.A. No.1134 of 2016 B

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Dated this the 16^th day of October, 2017

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Challenging the concurrent findings entered by

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the Munsiff's Court, Ernakulam in OS No.9/2006 followed by those of the Subordinate Judge's Court, Ernakulam in AS No.26/2010, defendants 1, 2 and 4 in OS No.9/2006 have come up in Second Appeal.

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The suit is one for declaration that the inclusion of plaint schedule property in Ext.A11 partition deed executed

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by the defendants is null and void, and for recovery of possession of plant A schedule property, after removing the shop room illegally constructed by defendants 1 to 4 in it. A mandatory injunction has also been sought for, for the removal of the portions of the sunshade of the residential

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RSA.1134/2016

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: 2 :

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building put up by the defendants in their property protruding into plaint A schedule property. Damages for illegal occupation and mesne profits were also sought for.

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The Munsiff's Court passed a decree in favour of the plaintiffs in terms of the plaint, except for the relief of damages and mesne profits. The same was carried in appeal by defendants 1, 2 and 4 through AS No.26/2010 before the lower appellate court. The lower appellate court also concurred with the findings entered by the trial court and dismissed the appeal with costs, and hence the Second Appeal.

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Heard learned counsel for the appellants and learned counsel for the respondents on the question of admission.

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The facts reveal that the properties including the plaint schedule property originally belong to the joint family consisting of Padmanabhan, Damodaran, Parameswaran and Kalyani as its members. They partitioned the property

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RSA.1134/2016

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: 3 :

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in the year 1948 through Ext.A1 partition deed allotting A schedule property in Ext.A1 to Damodaran, B schedule property therein to Padmanabhan, C schedule property therein to Parameswaran and D schedule property therein to Kalyani.

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According to the plaintiffs, B schedule in Ext.A1 allotted to Padmanabhan expressly takes in the plaint schedule property. After the execution of Ext.A1, Padmanabhan had been in possession and enjoyment of the plaint schedule property including other properties allotted to him. Padmanabhan had gifted 26 cents of property out of his properties to Jalajamani, who is the daughter of Padmanabhan in his first wife, through Ext.A2 and Ext.A3 gift deeds. Thereafter, Padmanabhan executed Ext.A4 registered Will dated 29.12.1986, thereby bequeathing all his remaining properties to plaintiffs 1 to 3. Padmanabhan died on 06.10.1991. Thereafter, plaintiffs 1 to 3 were in absolute possession and enjoyment of the

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RSA.1134/2016

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: 4 :

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properties covered by Ext.A4 Will including the plaint schedule property.

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According to the plaintiffs, plaintiffs 1 to 3 were in possession and enjoyment of the plaint schedule property till July 2003. In July 2003, plaintiffs 1 to 3 were not in station and by taking that opportunity, the defendants trespassed into the plaint schedule property and constructed a shop room therein. Apart from that, they put up a residential building in the adjacent property belong to them in such a way that a portion of its sunshade is protruding into the plaint schedule property.

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The plaintiffs had approached the Corporation authorities complaining about the illegal construction. When nothing was done in the matter, a writ petition was preferred by the plaintiffs before this Court. In spite of the direction in the writ petition, no fruitful action was taken by the Corporation authorities, apart from directing the plaintiffs to have recourse to civil litigation for recovery of possession of

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RSA.1134/2016

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: 5 :

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their property. The matter was challenged in appeal before the Tribunal for Local Administration. When the plaintiffs were directed to have recourse to the civil proceedings, the present suit has been filed.

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Defendants 1, 2 and 4 filed a joint written statement contending, inter alia , that the plaint schedule property was in the possession and enjoyment of Damodaran and on the death of Damodaran, it devolved on the defendants. Thereafter, the defendants executed Ext.A11 partition deed and the plaint schedule property was allotted to the share of defendants 1 and 2 through Ext.A11. According to defendants 1, 2 and 4, in case it is found that they have no title over the property, they are entitled to protect their possession through adverse possession and limitation. The 3^rd defendant filed a separate written statement contending that the 3^rd defendant has never trespassed into the plaint schedule property, and that she subscribed her signature to Ext.A11 without knowing its

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RSA.1134/2016

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: 6 :

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contents. Defendants 5 and 6 have filed a separate written statement almost in terms of the contentions resorted to by defendants 1, 2 and 4.

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After a full fledged trial, the trial court found that the defendants have no manner of right or authority over the plaint schedule property; whereas, the plaint schedule properties were portions of B schedule property covered by Ext.A1 allotted to the share of Padmanabhan. It was also found that the defendants had no manner of right or authority to include the plaint schedule property in Ext.A11 partition deed and its inclusion will not give rise to any right to the defendants over the plaint schedule property. A relief of recovery of possession has been granted by the trial court by directing the removal of the shop room from the plaint schedule item. Mandatory injunction has also been granted by directing the defendants to remove the portions of the sunshade of the residential building, which protrude into the plaint schedule property.

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RSA.1134/2016

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: 7 :

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This is a case wherein defendants 1, 2 and 4 as well as defendants 5 and 6 have contended that the plaint schedule property was in the possession of Damodaran till his death and thereafter, it devolved on the defendants. It is also the case of defendants 1, 2 and 4 that plaintiffs 1 to 3 have lost their right, if any, over the plaint schedule property through adverse possession and limitation. When properties were separately allotted to the four members of the joint family, through Ext.A1 partition deed in the year 1948, it is idle to contend that the plaint schedule property, which was allotted to Padmanabhan continued in the possession and enjoyment of Damodaran. When there were severance of tenements and parties were enjoying their respective shares independently, either Damodaran or his legal heirs cannot claim that the plaint schedule property, which is a portion of B schedule item in Ext.A1, continued in the possession of Damodaran. A notice for removal of the illegal constructions was caused to be issued by the plaintiffs, which evoked a

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RSA.1134/2016

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: 8 :

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response in the form of Ext.A13 reply, in which the defendants have taken up false and frivolous contentions, which necessitated the suit. It is true that right from 2003 onwards, the plaintiffs have been knocking all the doors against the trespass and illegal constructions made by the defendants in the plaint schedule property. Ultimately, they were directed to have recourse to civil proceedings, and hence the suit.

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On hearing either side and on perusing the evidence, records and the judgments rendered by both the courts below, this Court is of the view that no substantial question of law emerges from this Second Appeal. The facts have been concluded by both the courts below concurrently, which do not invite any interference at all. Both parties are claiming properties based on Ext.A1. Therefore, the defendants cannot be heard to say that the plaint schedule property allotted to Padmanabhan through Ext.A1 did not devolve on Padmanabhan. The said property clearly

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RSA.1134/2016

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: 9 :

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belongs to plaintiffs 1 to 3 through Ext.A4 registered Will executed by Padmanabhan on 29.12.1986, when Padmanabhan died on 06.10.1991. There is no evidence to show any total ouster of either Padmanabhan or the plaintiffs from the plaint schedule property. There is absolutely no evidence to show that the title of plaintiffs 1 to 3 over the plaint schedule property has been extinguished within the meaning of Section 27 of the Limitation Act. Matters being so, this Regular Second Appeal is devoid of merits, and is only to be dismissed, and I do so.

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In the result, this Regular Second Appeal is dismissed. No order as to costs. All pending interlocutory applications in this appeal are closed.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/16/10

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// True Copy //

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PS to Judge

Karthiyayini (Died) v. v.K.Thankamma

Case brief

What is this about?

What did the court decide?

Karthiyayini (Died) v. v.K.Thankamma

Case brief

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