Dismissed

Kunjukunju v. Leelamma Michael

Kerala HC9 Jan 2017RSA/1297/2016

Case brief

AI extract

What is this about?

In a regular second appeal regarding a disputed property title and possession, the court dismissed the appellant's challenge to the conviction of adverse possession claims and potential injunction benefits arising from a dismissed suit, finding strong evidence of the respondent's title.

What did the court decide?

The regular second appeal and all pending interlocutory applications are dismissed.

Kunjukunju Vs Leelamma Michael — 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 K.HARILAL

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MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938

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RSA.No. 1297 of 2016 (D)

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AGAINST THE JUDGMENT AND DECREE DATED 22-07-2016 IN AS 39/2010 of SUB COURT, CHERTHALA.

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AGAINST THE JUDGMENT AND DECREE DATED 29-03-2010 IN OS 199/2008 of PRINCIPAL MUNSIFF'S COURT, CHERTHALA.

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APPELLANT/APPELLANT/PLAINTIFF:

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KUNJUKUNJU,

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S/O. CELESTINE, AGED 62 YEARS, KARUMANCHERIL, EZHUPUNNA SOUTH MURI OF KODAMTHURUTHU VILLAGE, CHERTHALA.

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BY ADVS.SRI.T.JAYAKRISHNAN SRI.R.KRISHNAKUMAR (CHERTHALA)

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RESPONDENT/RESPONDENT/DEFENDANT:

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LEELAMMA MICHAEL,

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W/O. MICHAEL, AGED 71 YEARS, KARUMANCHERIL, EZHUPUNNA SOUTH MURI OF KODAMTHURUTHU VILLAGE, CHERTHALA-688 550.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No. 1297 of 2016-D

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Dated this the 9^th day of January, 2017

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JUDGMENT

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The appellant is the unsuccessful plaintiff as well as the appellant before the trial court and the lower appellate court respectively. The Original Suit was filed for a decree declaring title and possession over the plaint schedule property and consequential injunction. According to him, his father purchased the plaint schedule property, in the name of the defendant, as per Ext.B1 sale deed in the year 1979. The defendant is the cousin sister of the plaintiff's wife. Even though Ext.B1 stands in the name of the defendant, Ext.B1 happened to be executed, in the name of the defendant, on the reason that the vendor was not willing to transfer the property to the father of the

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R.S.A. No. 1297 of 2016 -: 2 :-

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plaintiff. The father of the plaintiff was having property adjacent to the east of the plaint schedule property and from 3/11/1979 onwards, he was in possession of the plaint schedule property, notwithstanding the existence of Ext.B1 sale deed. After the death of the father of the plaintiff, the title and possession, over the plaint schedule property, have been devolved upon the plaintiff. The defendant has neither title; nor possession over the plaint schedule property. If at all she had no right, by virtue of the sale, that has been lost by long and open adverse possession of the property by the plaintiff in continuation of the possession of his father from 3/11/1979. Hence the suit was filed seeking the aforesaid reliefs.

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The defendant denied the averments in the plaint that she was only a name lender and the plaint schedule property was actually purchased by the father of the plaintiff in the name of the defendant.

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R.S.A. No. 1297 of 2016 -: 3 :-

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According to the defendant, the consideration of Ext.B1 was paid by the father of the plaintiff and the father of the plaintiff had neither title; nor possession over the property, after the execution of Ext.B1 sale deed. He has taken possession of the property and mutated the same under the Transfer of Registry Rules and she has been paying the property tax for the said property. The claim of adverse possession is also baseless and mutually destructive and opposing against his earlier averments in the plaint.

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On the aforesaid rival pleadings, P.Ws.1 to 5, D.W.1 and C.W.1 were examined and Exts.A1 and B1 to B4 and C1 and C1(a) were marked. After considering the evidence, on record, the trial court dismissed the suit. Though the plaintiff had preferred A.S.No.39/2010 before the Sub Court, Cherthala, after re-appreciating the evidence, on record, the lower appellate court also dismissed the suit confirming the findings of the trial court. Thus, the legality and

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R.S.A. No. 1297 of 2016 -: 4 :-

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correctness of the concurrent findings; whereby the plaintiff's claim of title and possession over the plaint schedule property stands rejected, are challenged in this Regular Second Appeal.

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Heard the learned counsel for the appellant.

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The sum and substance of the arguments advanced by the learned counsel for the appellant/plaintiff is that earlier, the defendant had filed O.S.No.324/1998 against the plaintiff seeking declaration of title and injunction and the said suit was dismissed for default under Order IX Rule 9 of the Code of Civil Procedure. According to the learned counsel for the plaintiff, if Order IX Rule 9 of the C.P.C. bars the defendant from filing a fresh suit, consequent on the light of the dismissal of O.S.No.324/1998, the plaintiff is entitled to get the lesser relief of injunction against the forceful dispossession of the plaintiff from the plaint schedule property in the present suit filed by the plaintiff.

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R.S.A. No. 1297 of 2016 -: 5 :-

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It is not disputed that the defendant had earlier filed O.S.No.324/1998 before the Munsiff's Court, Cherthala, seeking declaration of title and possession and consequential injunction against the plaintiff herein and the said suit was dismissed for default under Order IX Rule 9 of the C.P.C. It is true that consequent on the dismissal of O.S.No.324/1998, the defendant will be precluded from instituting a fresh suit for the same cause of action. But, in the instant case, the present suit is filed by the plaintiff, who was the defendant in O.S.No.324/1998. This Court is of the view that even though the defendant herein was the plaintiff, who suffered the dismissal of his suit under Order IX Rule 9 of the C.P.C., he will not be precluded from defending a further suit filed by the defendant in the earlier suit against him. Merely on the reason that the earlier suit filed by the defendant herein was dismissed for default, under Order IX Rule 9 of the C.P.C., the plaintiff herein is not entitled to get

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R.S.A. No. 1297 of 2016 -: 6 :-

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automatically a lesser relief of injunction, notwithstanding the merits of the case in the subsequent suit. In other words, the dismissal of the earlier suit under Order IX Rule 9 of the C.P.C. will not stand in the way of contesting the subsequent suit fled by the defendant in the earlier suit, by raising all possible contentions available under law.

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Coming to the merits of the case, it is seen that the courts below have meticulously considered and determined all the material issues in its correct perspective. It is the case of the plaintiff that Ext.B1 document happened to be executed in the name of the defendant, as a mere name lender only; since the vender was not willing to transfer the property to the father of the plaintiff. Admittedly, by virtue of Ext.B1 document, the defendant obtained two items of property and the dispute is confined to one item of property in the sale deed. There is no sufficient explanation from the side of the plaintiff as to when

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R.S.A. No. 1297 of 2016 -: 7 :-

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two items were jointly purchased by the plaintiff by way of Ext.B1 sale deed, why he claims right and title over one item only. Secondly, as rightly found by the courts below, the pleadings claiming right of adverse possession are mutually opposing and destructive, as he contended the father himself was the actual owner in possession of the plaint schedule property. Needless to say, the claim of adverse possession can be raised against the title holder of the property only. So long as the plaintiff claims that his father himself was the actual title holder of the property, though Ext.B1 stands in the name of the defendant, he is precluded from raising the claim of adverse possession. Thirdly, the plaintiff claims that the property devolved upon him by the death of his father. But, at the same time, he admitted that he has brothers and sisters and no document had been produced to show that he is the sole legal heir of the deceased father. More over, it is pertinent to note

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R.S.A. No. 1297 of 2016 -: 8 :-

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that till the death of the father of the plaintiff, he has no case that he purchased the property in the name of the defendant for and on behalf of him and the consideration was paid by him.

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On the other hand, the defendant has produced Exts.B1 to B4. Ext.B1 is the original sale deed and Ext.B2 is the tax receipt and Ext.B3 is the sale deed and Ext.B4 is a copy of the mortgage deed. Ext.B2 tax receipts, two in number, show that after Ext.B1, the property had been mutated under the Transfer of Registry Rules and she has been paying tax for the said plaint schedule property. Ext.B4 mortgage deed shows that the defendant has availed loan from a Co-operative Society by depositing the original Ext.B1 sale deed and the Society was permitted to take yield from the property. As rightly observed by the courts below, Ext.B4 indicates that after the execution and registration of Ext.B1 sale deed in the year 1979, the defendant took possession

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R.S.A. No. 1297 of 2016 -: 9 :-

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of the same and she mortgaged the property with the Society.

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In the above analysis, this Court finds that the courts below have rightly appreciated the evidence, on record, and there is no illegality or impropriety in any of the findings. No question of law arises for consideration.

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This Regular Second Appeal will stand dismissed. All pending interlocutory applications will also stand dismissed.

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Sd/(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

Kunjukunju v. Leelamma Michael

Case brief

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Kunjukunju v. Leelamma Michael

Case brief

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