Dismissed

Raveendran v. Radhamani Amma

Kerala HC7 Nov 2017RSA/589/2017

Case brief

AI extract

What is this about?

The High Court dismissed two second appeals challenging the lower appellate court's judgment in civil suits regarding land title, possession, and perpetual injunctions. The court held that the appellant failed to substantiate adverse possession and that the lower court's finding of an anticipatory attack was correct.

What did the court decide?

Second appeals R.S.A. Nos. 589 & 590 of 2017 dismissed; interlocutory applications closed with costs borne by respective parties.

Raveendran Vs Radhamani Amma — Property and Title | 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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TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939

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RSA.No. 589 of 2017 ()

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AGAINST THE JUDGMENT AND DECREE DATED 31-03-2016 IN AS 131/2010 of ADDITIONAL DISTRICT COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT AND DECREE DATED 26-07-2010 IN OS 901/1998 of MUNSIFF COURT, NORTH PARAVUR

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APPELLANT/RESPONDENT/PLAINTIFF:

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RAVEENDRAN,

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AGED 56,S/O.PURUSHAN, KANAKKATHARA HOUSE, AISWARYA BHAVAN, MAMANGALAM, EDAPPALLY, KANAYANNUR TALUK, ERNAKULAM, PIN CODE-682 025

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BY ADVS.SRI.P.VISWANATHAN SRI.SUNIL N.SHENOI

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RESPONDENTS/APPELLANTS/DEFENDANTS 1,3 AND 4:

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1. RADHAMANI AMMA, AGED 80, D/O. KAMALAKSHY AMMA, PULIYAMPILLI VEETIL, EDATHURUTHI, KADAKKARA MURI, EZHIKKARA VILLAGE, PARAVUR TALUK, NOW RESIDING AT OZHOOR VEETTIL, CEMETRY JUNCTION, COCHIN CORPORATION, PIN CODE 682 018.

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2. SREELATHA,

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AGED 50,D/O. RADHAMANI AMMA, NOW RESIDING AT OZHOOR VEETTIL, CEMETRY JUNCTION, COCHIN CORPORATION, PIN CODE 682 018.

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RSA.No. 589 of 2017 ()

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3. HARIKRISHNAN AGED 47,S/O. RADHAMANI AMMA, NOW RESIDING AT OZHOOR VEETTIL, CEMETRY JUNCTION, COCHIN CORPORATION, PIN CODE 682 018.

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R2 & R3 BY ADV. P.R.REENA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2017, ALONG WITH RSA. 590/2017, 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. Nos. 589 & 590 of 2017

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............................................................... Dated this the 7^th day of November, 2017

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J U D G M E N T

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The appellant as plaintiff preferred O.S.No.901 of 1998 before the Munsiff’s Court, North Paravur for a decree of perpetual injunction restraining the defendants from causing any obstruction to the prawn cultivation in plaint A and B schedule properties and from causing any destruction to the bunds on the 4 sides of the plaint schedule properties and from committing any sort of waste thereon.

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Initially, the suit was decreed on 28.02.2004. The

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said judgment and decree were challenged by the defendants before the lower appellate court through A.S.No.102 of 2004. The Subordinate Judge’s Court, North

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R.S.A. Nos. 589 & 590 of 2017

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-: 2 :-

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Paravur, allowed the appeal and remitted the matter to the trial court for fresh disposal in accordance with law. In the meantime, the defendants in the suit filed two other suits as O.S.No.562 of 2004 and O.S.No.622 of 2004.

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O.S.No.562 is one for declaration and recovery of possession, fixation of boundary and for injunction. O.S.No.622 of 2004 was filed for declaration and inunction. After the remand of O.S.No.901 of 1998, all the three suits were jointly tried before the Munsiff’s Court, North Paravur. O.S.No.562 of 2004 was treated as the main case. The trial court decreed O.S.No.562 of 2004, by declaring the title of the plaintiff over plaint A schedule property and granting recovery of possession of plaint C schedule property. The boundary of plaint A schedule property was fixed as per Exhibits C1, C1(a), C2 and C2(a) and the plans were ordered to form part of the decree. A decree for perpetual inunction was also passed by restraining the defendant from trespassing into plaint A and C schedule properties and from

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R.S.A. Nos. 589 & 590 of 2017

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-: 3 :-

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alienating or encumbering plaint C schedule property and from committing any sort of waste on plaint A and C schedule properties. The defendant was restrained from causing any obstruction to the taking of usufructs from plaint A and C schedule properties by the plaintiff.

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O.S.No.622 of 2004 was dismissed. The trial court partly decreed O.S.No.901 of 1998, thereby restraining the defendants from causing any obstruction to the conduct of prawn cultivation in the plaint A and B schedule properties by the plaintiff.

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The defendant in O.S.No.562 of 2004 preferred A.S.No.125 of 2010 before the Additional District Court, North Paravur. The plaintiffs in O.S.No.622 of 2004 preferred A.S.No.127 of 2010. Further, the defendants in O.S.No.901 of 1998 preferred A.S.No.131 of 2010. All these appeals were heard together and disposed of through the common judgment. The lower appellate court dismissed A.S.No.125 of 2010 and 127 of 2010 and allowed

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R.S.A. Nos. 589 & 590 of 2017

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-: 4 :-

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A.S.No.131 of 2010. The result is that the plaintiff in O.S.No.901 of 1998 has been non-suited. The plaintiffs in O.S.No.622 of 2004 were also non-suited. At the same time, the judgment and decree passed by the trial court in O.S.No.562 of 2004 are confirmed.

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Challenging the judgment and decree of the lower appellate court in A.S.No.131 of 2010, the plaintiff has come up in second appeal through R.S.A No.589 of 2017. Similarly, by challenging the judgment and decree in A.S.No.125/2010, the defendant has come up in second appeal through R.S.A.No.590 of 2017.

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Heard the learned counsel for the appellant on the question of admission. The learned Senior Counsel for the respondents is also heard.

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The crux of the matter is with regard to the identity of the property. What has been sought to be recovered by the respondents through O.S.No.562/2004 is plaint C schedule item. The extent of plaint C schedule is

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R.S.A. Nos. 589 & 590 of 2017

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-: 5 :-

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6.80 cents which is presently in the possession of the appellant. When the said aspect came to light through the Commissioner's report and plans, the respondents had chosen to file O.S.No.562/2004. In O.S.NO.562/2004 the present appellant contended that he had perfected his right over the said C schedule item through adverse possession and limitation. Even though the extinguishment of the right of the respondents herein was pleaded by the appellant in O.S.No.562/04, it has come out that he has not chosen to mount the box. Matters being so, virtually the said claim has been abandoned.

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By resorting to the plea of adverse possession and limitation, the appellant has clearly admitted the title of the respondents over the said property. When the right of adverse possession has not been proved, the appellant cannot maintain any claim at present over the said property. On going through the judgments, and on hearing either side, it has come out that the appellants have practically nothing

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R.S.A. Nos. 589 & 590 of 2017

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-: 6 :-

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to challenge the findings entered by the lower appellate court. The lower appellate court has correctly appreciated the facts and evidence and has concluded that through O.S.No.901/1998 the attempt of the appellant was nothing but an anticipated attack instead of defence. The impugned judgment does not give raise to any substantial question of law. The findings entered by the lower appellate court are not liable to be interfered with in any manner. Therefore, these second appeals are devoid of merits, and are only to be dismissed, and I do so.

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In the result, these second appeals are dismissed. In the nature of these appeals, the parties shall bear their respective costs. All the interlocutory applications in these appeals are closed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Raveendran v. Radhamani Amma

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Raveendran v. Radhamani Amma

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