The High Court of Kerala dismissed a second appeal challenging lower court findings in a suit for boundary fixation and recovery of possession. The Court found the appellant lacked title to the property in question due to a defective sale deed executed by a vendor who had already disposed of the land.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939
RSA.No. 854 of 2014 (B)
AGAINST JUDGMENT DATED 13-02-2014 IN AS 173/2010 of ADDL. DISTRICT & SESSIONS COURT - V, KOLLAM
AGAINST JUDGMENT DATED 19-03-2010 IN OS 72/2000 of MUNSIFF-MAGISTRATE COURT, SASTHAMCOTTA
APPELLANT(S)/APPELLANT/PLAINTIFF:
SOMARAJAN, AGED 55 YEARS,
S/O.THEVAN, SURYA BHAVANAM VEEDU,(JAYAVILASAM),IVERKALA PADINJATTEKKARA,VADAKKUMURI, KUNNATHOOR VILLAGE,KOLLAM DISTRICT.
BY ADV. SRI.B.MOHANLAL
RESPONDENT(S)/RESPONDENT/DEFENDANT:
K.NANU, AGED 64 YEARS, VALUTHUNDIL VEEDU,IVERKALA PADINJATTEKKARA P.O. VADAKKUMURI,KUNNATHOOR VILLAGE,KOLLAM DISTRICT. PIN- 690524.
R1 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
R.S.A. No. 854 of 2014
............................................................... Dated this the 12th day of October, 2017
J U D G M E N T
Challenging the findings entered by the Munsiff's Court, Sasthamcotta in O.S.No.72/2000 followed by those of the Additional District Court, Kollam in A.S.No.173/2010, the plaintiff in the suit, who has sought for fixation of boundary of his property, has come up in appeal.
R.S.A. 854 of 2014
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situated just west to the plaint A and B schedule properties. It is the case of the plaintiff that there is no separating boundary between the plaintiff's property and the property of the defendant, and consequently he has sought for a decree for fixation of boundary.
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property also. The defendant has sought for a counter claim for a decree of perpetual injunction restraining the plaintiff from trespassing into any of the portions of the property in the possession of the defendant.
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allowed the counter claim. The same was carried in appeal as A.S.No.173/2010 before the District Court, Kollam. The Additional District Court, Kollam has concurred with the findings entered by the trial court, and dismissed the appeal with costs, and hence this second appeal.
as well as the learned counsel for the respondent, and also on perusing the records, it has come out that the plaintiff had originally purchased plaint A schedule property through Ext.A1 from the niece of the defendant. One Kuttappan is the direct brother of the defendant, who was having six cents of property, out of which 3½ cents were acquired for the purpose of the canal. The remaining extent of property with the said Kuttappan was only 2½ cents. Through Ext.B1
sale deed, Kuttappan had sold the said 2½ cents of property to one Radhakrishna Pillai on 26.07.1991. Therefore, it has
to be noted that nothing was left with Kuttappan after
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26.07.1991 in the property. Strangely enough, Kuttappan could prevail upon the plaintiff or viceversa and Ext.A2 sale deed dated 3.12.1991 was created just five months after the execution of Ext.B1. Even though no property was left with Kuttappan, Kuttappan had chosen to execute Ext.A2 in respect of 3½ cents of property to the plaintiff. The plaintiff is claiming title over the said 3½ cents as B schedule item, which in fact, is not in existence.
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sought for, the plaintiff ought to have proved his title over plaint B schedule property. The plaintiff cannot clinch on the fact that the defendant is in possession of 2½ cents of excess land. Unless and until the title is proved, the plaintiff cannot claim recovery of possession based on title. The plaintiff cannot stand on the weakness of the defendant to seek a relief of declaration. On going through the entire matter and on hearing either side, this Court is satisfied that any substantial question of law does not emerge from the impugned judgment and decree. Matters being so, this second appeal is devoid of merits, and is only to be dismissed, and I do so.
In the result, this RSA is dismissed. There is no order as to costs. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
2 issues framed by the court
Whether the Second Appeal is liable to be dismissed having regard to the facts of the case.
Whether the plaintiff has proved his title over the property schedule item to claim recovery of possession.
1 provisions across 1 enactments
SOMARAJAN
K. NANU
B. KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
