Disposed

T.K. Devaki v. K.T. Shailaja

Kerala HC12 Feb 2018RSA/183/2018

Case brief

AI extract

What is this about?

In a second appeal against a possession suit, the High Court found no substantial question of law regarding pecuniary jurisdiction under Section 99 CPC. The Court granted the appellants six months to vacate the property unconditionally, subject to filing an affidavit, allowing the lower court to execute the decree immediately if the affidavit is not filed.

What did the court decide?

Six months' time granted to vacate premises unconditionally upon filing affidavit; lower court may execute decree if affidavit not filed.

T.K. Devaki Vs K.T. Shailaja — Contract and Commercial Disputes | Kerala HC (2018)

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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 A.HARIPRASAD

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MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939

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RSA.No. 183 of 2018

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AGAINST THE JUDGMENT & DECREE DATED 10.10.2017 IN AS 9/2015 of IIND ADDITIONAL DISTRICT COURT, KASARAGOD

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AGAINST THE JUDGMENT & DECREE DATED 16.12.2014 IN OS 267/2012 of ADDITIONAL MUNSIFF COURT,CHERTHALA

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APPELLANTS/APPELLANTS/DEFENDANTS

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1 T.K. DEVAKI, 62 YEARS, D/O.NARAYANAN AND W/O.K.RAJAN RESIDING AT M.G.NAGAR, NEAR M.G.VAYANASALA,PANNIPPARA, MADHUR VILLAGE,

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HIDYATH NAGAR, KASARAGOD TALUK & DISTRICT.

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2 MANI @ RAJESH, S/O.T.K.DEVAKI AND K.RAJAN, AGED 32 YEARS, RESIDING AT M.G.NAGAR, NEAR M.G.VAYANASALA, PANNIPPARA, MADHUR VILLAGE, POST HIDAYATH NAGAR, KASARAGOD TALUK AND DISTRICT.

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BY ADVS.SRI.R.SREEHARI SRI.SACHIN VYAS

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RESPONDENT/RESPONDENT/PLAINTIFF:

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K.T. SHAILAJA, 49 YEARS, D/O.KUNHIRAMAN, SIVAKRUPA COTTAGE, VIVEKANANDA NAGAR, KUDLU VILLAGE, POST RAMDAS NAGAR, KASARAGOD TALUK AND DISTRICT PIN 671 124.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A. HARIPRASAD, J.

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R.S.A.No.183 of 2018

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Dated this the 12^th day of February, 2018

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JUDGMENT

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Heard the learned counsel for the appellants.

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Appeal is against the judgment and decree passed by

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the Additional District Judge - II, Kasaragod in A.S.No.9 of 2015 in a suit for recovery of possession on the strength of title. Appellants are the defendants and respondent is the plaintiff in the suit. Gist of allegations in the plaint are that plaint A schedule property originally belonged to Rajan in Janmam right. He executed Ext.A3 sale deed in favour of the respondent in 2012 for a consideration of Rs.3,70,000/-. The plaintiff/respondent was in actual possession and enjoyment of plaint A schedule property. On 04-07-2012, the appellants trespassed into the property and forcefully took possession of the same. Hence the suit for recovery of possession.

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RSA No.183/2018

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The appellants filed a written statement contending that the executant of Ext.A3, Rajan, is the husband of 1^st appellant and the father of 2^nd appellant. They disputed genuineness of Ext.A3 sale deed in favour of the respondent. It is further contended that the respondent has no financial ability to pay a consideration of Rs.3,70,000/-. According to the appellants, they never trespassed into the property. It was seen by the courts that the respondent is living with Rajan during the subsistence of marriage between him and the 1^st appellant.

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The appellants specifically challenged the valuation shown in the plaint and also the court fee paid. According to the learned counsel for the appellants, the suit was wrongly instituted before the Munsiff's Court in respect of a property worth more than 3 lakhs at the time of its institution. This question was specifically considered by the court below and entered a finding. The trial court further found that the respondent has title over the property by virtue of Ext.A3.

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RSA No.183/2018

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Dissatisfied with the judgment and decree of the trial court, the appellants took up the matter in first appeal before the District Court, Kasaragod. After appreciating the contentions with reference to the evidence on both sides, the appellate court agreed with the trial court and dismissed the appeal.

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After hearing the learned counsel for the appellants and on perusal of the impugned judgments, I find no substantial question of law arising in this second appeal. The contention that the court below wrongly exercised pecuniary jurisdiction in this suit, cannot hold good in view of Section 99 CPC.

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Having regard to the facts and circumstances, I find that the appellants should be given a reasonable time to vacate the premises. The lower court has already granted time. Considering the facts and circumstances, I hereby grant six months' time from 30^th April, 2018, on condition that the appellants shall file affidavit/affidavits before the trial court

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RSA No.183/2018

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unconditionally undertaking to vacate the building and land within the stipulated time without making any further claim. The affidavit shall be filed within a period of three weeks. If affidavit or affidavits are not filed as directed above, the court below is free to execute the decree as if no restriction is imposed on eviction.

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All pending interlocutory applications will stand dismissed.

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Sd/- A. HARIPRASAD JUDGE

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T.K. Devaki v. K.T. Shailaja

Case brief

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T.K. Devaki v. K.T. Shailaja

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