Dismissed

Vijayan v. Vijayamma

Kerala HC1 Nov 2017RSA/556/2017

Case brief

AI extract

What is this about?

In this Regular Second Appeal arising from a suit for recovery of possession and eviction, the High Court of Kerala dismissed the appeal. Upholding the concurrent findings of the trial and appellate courts, the bench held that the plaintiff established a valid title through a 1988 settlement deed and the defendant had no right to remain in possession. The appeal was found devoid of merits.

What did the court decide?

This Regular Second Appeal is dismissed. All pending interlocutory applications in the appeal are closed.

Vijayan Vs Vijayamma — 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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WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939

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RSA.No. 556 of 2017 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 11-04-2017 IN AS 4/2015 of SUB COURT, CHENGANNUR

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AGAINST THE JUDGMENT AND DECREE DATED 24-02-2015 IN OS 301/2012 of MUNSIFF COURT, CHENGANNUR

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APPELLANT/APPELLANT/DEFENDANT:

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VIJAYAN,

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AGED 64 YEARS, S/O.LATE KESAVAN, R/O.VELLAPARAMBIL, PERISSERY PO-689122, PULIYOOR VILLAGE, CHENGANNUR TALUK.

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BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H. SMT.JINU ANTONY SRI.M.V.VIPINDAS

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RESPONDENT/RESPONDENT/PLAINTIFF:

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VIJAYAMMA, AGED 68 YEARS, D/O.LATE BHAVANI, R/O.VELLAPARAMBIL, PERISSERY PO-689122, PULIYOOR VILLAGE, CHENGANNUR TALUK

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BY ADV. SRI.M..RAMASWAMY PILLAI (CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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B. KEMAL PASHA, J.

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R.S.A. No.556 of 2017 G

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Dated this the 1^st day of November, 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, Chengannur in OS No.301/2012 followed by those of the Subordinate Judge's Court, Chengannur in AS No.4/2015, the defendant has come up in Second Appeal.

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The suit is one for recovery of possession and for a direction to the defendant and the members of his family to vacate the plaint schedule properties. The suit is decreed by directing the defendant to move out of the house and the plaint schedule property with his family and handover possession of plaint schedule A and B items to the plaintiff within one month from the date of decree. The counter

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RSA.556/2017

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: 2 :

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claim preferred by the defendant was also dismissed. The defendant went up in appeal through AS No.4/2015 before the lower appellate court. The lower appellate court also concurred with the findings entered by the trial court, and dismissed the appeal.

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According to the plaintiff, the plaint schedule properties were settled in her favour by her father through Ext.A1 settlement deed dated 10.05.1988. She has been paying tax for the property, and the property has been mutated in her favour. Her father had a total extent of 28 cents of property, out of which Ext.A1 was in respect of 9.5 cents with the building thereon.

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According to the defendant, when other children including the defendant were there, there was no reason for the father to execute Ext.A1. It seems that there is only an evasive denial in respect of Ext.A1. There is no specific case that Ext.A1 was the result of impersonation. According to the defendant, Ext.A1 was the result of undue influence

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RSA.556/2017

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: 3 :

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exerted by the plaintiff on the father.

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Learned counsel for the respondent has pointed

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out that the remaining properties of the father were gifted to the other children including the defendant. Of course, it is true that they could get only 3 cents each out of the said 28 cents. At the same time, specific reason has been stated in Ext.A1 as to why the father was inclined to settle the plaint schedule property and the building on the plaintiff. It has clearly come out that one of the siblings of the plaintiff, who was allotted with 3 cents of property by the father, has preferred a suit against the plaintiff for fixation of the boundary. That itself denotes that the said sibling has virtually admitted the title of the plaintiff over the plaint schedule properties.

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Ext.A1 settlement deed itself reveals that all the

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affairs of the father were taken care of by the plaintiff, who remained as a spinster. Presently, she is aged 71. Still, she cannot enjoy the property, since it is occupied by the

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RSA.556/2017

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: 4 :

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defendant and his family.

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On going through the judgments passed by both

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the courts below concurrently, it has come out that the defendant has no consistent case at all. The defendant has no manner of right or authority to continue in the building or the plaint schedule properties. There is absolutely nothing to interfere with the concurrent findings of facts entered by both the courts below. This 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 the appeal are closed.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/01/11

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// True Copy //

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PS to Judge

Vijayan v. Vijayamma

Case brief

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Vijayan v. Vijayamma

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