Dismissed

Sivarama Panicker Viswanathan, v. Appipennu Karthiyani

Kerala HC17 Oct 2018SA/316/1999

Case brief

AI extract

What is this about?

In a suit for recovery of immovable property, the High Court dismissed a second appeal filed by a defendant transposed as additional appellant. The Court held the appeal was without merits as the identification of property by Advocate Commissioner had no objection and findings were not perverse.

What did the court decide?

The second appeal is dismissed as it is without merits.

Sivarama Panicker Viswanathan, Vs Appipennu Karthiyani — Partition | 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 P.B.SURESH KUMAR

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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SA.No. 316 of 1999

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AGAINST THE DECREE AND JUDGMENT DATED 18-02-1998 IN AS 74/1990 of DISTRICT COURT, TRIVANDRUM

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AGAINST THE DECREE AND JUDGMENT DATED 16-01-1989 IN OS 646/1974 of II ADDL.M.C.,NEYYATTINKARA

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APPELLANTS/APPELLANTS/DEFENDANTS 4 AND 7:

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1 x SIVARAMA PANICKER VISWANATHAN, (DIED) S/O.SIVARAMA PANICKER, ADVOCATE, VANCHIYOOR, THIRUVANANTHAPURAM.

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x (THE LEGAL HEIRS OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL.RESPONDENTS 16 TO 18 AS PER ORDER DATED 18.07.2018 IN IA 1834/2017.)

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**2 *SIVARAMAPANICKER PRABHAKARAN, S/O.SIVARAMA PANICKER, RESIDING IN KADAVILAKATHU HOUSE, VELLARADA DESOM, VELLARADA VILLAGE, NEYYATTINKARA TALUK.

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*****(THE APPELLANT 2 IS TRANSPOSED AS ADDL.R15 AS PER ORDER DATED 18.07.2018 IN IA 1827/17.)**

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**3 SIVARAMA PANICKER SURESHKUMAR RESIDING AT KADAVILAKATHU VEEDU, DO. DO.

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**TRANSPOSED AS ADDL.A3. BY ADV. P R VENKITESH

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RESPONDENTS/RESPONDENTS 2 TO 15/DEFENDANTS 1 TO 3, 5, 6, 8 TO 12 AND LEGAL REPRESENTATIVES OF PLAINTIFF:

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*APPIPENNU KARTHIYANI (DIED) KADAVILAKATH VEEDU, VELLARADA DESOM, VELLARADA VILLAGE.

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***(THE APPELLANT 2 AND RESPONDENTS 2 TO 10 AND RESPONDENTS 16 TO 18 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 24.7.2017 IN MEMO DATED 19.7.2017 WITH VIDE CF 4397/2017.) 2 xx KARTHIAYANI GOMATHY, (DIED)**

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SA.No. 316 of 1999

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.DO. .DO. .DO. xx LRS IMPLEADED (THE LEGAL REPRESENTATIVES OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL.R19 AS PER ORDER DATED 18.7.2018 IN I.A.NO.1832/2017) 3 KARTHIAYANI SUKUMARI, (DIED) ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE FROM .DO. .DO. xxx LRS IMPLEADED (THE LEGAL REPRESENTATIVES OF DECEASED THIRD RESPONDENT ARE IMPLEADED AS ADDL.R20 TO ADDL.R24 AS PER ORDER DATED 18.7.2018 IN IA.NO. 1828/2017 4 SIVARAMA PANICKER RAMACHANDRAN, PANNAYATTTU ROADARIKATHU VEEDU, VELLARADA DESOM, VELLARAD VILLAGE.

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5 KARTHIAYANI LALITHA, VILATHUVILA ANANDA BHAVAN,VILAVANCODE DESOM, VILAVANKODE VILLAGE, KANYAKUMARI DISTRICT FROM THE AFORESAID KADAVILAKATHU VEEDU, VELLARADA DESOM.

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6 KARTHIAYANI CHANDRIKA, KALLUMMOOTTU VEEDU, PETTAH, THIRUVANANTHAPURAM FROM KADAVILAKATHU VEEDU, VELLARADA DESOM.

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7 KARTHIAYANI NALINI, KADAVILAKATHU VEEDU, VELLARADA DESOM, VELLARADA VILLAGE.

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**8 SIVARAMA PANICKER, SURESHKUMAR, RESIDING AT KADAVILAKATHU VEEDU, .DO. .DO.

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****(THE RESPONDENT 8 IS TRANSPOSED AS ADDL.APPELLANT NO.3 AS PER ORDER DATED 18.07.2018 IN IA 1826/2017.)**

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9 SIVARAMA PANICKER RANJITH KUMAR, KADAVILAKATHU VEEDU, .DO. .DO. 10 KARTHIAYANI REETHA, KADAVILAKATHU VEEDU, .DO. .DO. 11 SHYLAJA DEVI, WIDOW OF LATE K.SOMAN, RESIDING IN 'PRASALA' VELLARADA DESOM, VELLARADA VILLAGE, NEYYATTINKARA TALUK.

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12 K.S.SALEENA, D/O.LATE K.SOMAN, RESIDING AT .DO. .DO.

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SA.No. 316 of 1999

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13 K.S.LALI, D/O.LATE K.SOMAN, RESIDING AT .DO. .DO. 14 xxxx K.S.PRADEEP, (DIED) S/O.LATE K.SOMAN, RESIDING AT .DO. .DO. xxxx LRS IMPLEADED (THE LEGAL REPRESENTATIVES OF DECEASED 14TH RESPONDENT ARE IMPLEADED AS ADDL.R25 TO ADDL.R27 AS PER ORDER DATED 18.7.2018 IN IA.NO. 1830/2017 ADDL.R15 SIVARAMAPANICKER PRABHAKARAN S/O.SIVARAMA PANICKER, RESIDING IN KADAVILAKATHU HOUSE, VELLARADA DESOM, VELLARADA VILLAGE, NEYYATTINKARA TALUK.

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ADDL.R16 SULOCHANA,

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W/O.SIVARAMA PANICKER VISWANATHAN, VANCHIYOOR, THIRUVANANTHAPURAM

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ADDL.R17 LEKHA, D/O.SIVARAMA PANICKER VISWANATHAN, VANCHIYOOR, THIRUVANANTHAPURAM

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ADDL.R18 RAKHI,

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D/O.SIVARAMA PANICKER VISWANATHAN, VANCHIYOOR, THIRUVANANTHAPURAM

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ADDL.R19 D.VINOD, D/O GOMATHY, KADAVILAKATH VEEDU, VELLARADA DESOM, VELLARADA VILLAGE ADDL.R20 SANAL KUMAR, S/O SUKUMARI, ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE ADDL.R21 SHAJI KUMAR, S/O SUKUMARI, ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE ADDL.R22 SHEEJA, D/O SUKUMARI, ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE ADDL.R23 SHEEBA, D/O SUKUMARI, ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE ADDL.R24 SHEENA, D/O SUKUMARI, ALUVILA PUTHEN BUNGLOW, ATHIYANNOOR DESOM, ATHIYANNOOR VILLAGE ADDL.R25 JAYALATH, W/O K.S.PRADEEP, RESIDING IN 'PRASALA' VELLARADA DESOM, VELLARADA VILLAGE, NEYYATTINKARA TALUK

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ADDL.R26 AKSHAYAN, S/O K.S. PRADEEP, DO. DO ADDL.R27 PIYUSH, S/O K.S. PRADEEP, DO. DO

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BY ADV. SRI.G.S.REGHUNATH, R11 TO R14 ADV. SRI.REJU MOHAN - R25 TO R27

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SA.No. 316 of 1999

JUDGMENT

The tenth defendant in the suit is the appellant. The appellant was originally one of the respondents in the second appeal and he was transposed as the additional third appellant in terms of the order date d 18.07.2018.

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The suit is one for recovery of possession. The plaint schedule property is one measuring 25 cents. It belonged to the family of one Kali Mathevi. Ext.A1 is the partition effected in the family of Kali Mathevi in the year 1957. The plaint schedule property is included in the share of Kali Mathevi in Ext.A1 partition deed as C schedule item No.1. Kali Mathevi had 3 sons namely, Keshava Panicker, Sivarama Panicker and Krishna Panicker. Properties have been allotted to the sons of Kali Mathevi also in terms of the said partition deed. Later, Kali Mathevi gifted the plaint schedule property to Keshava Panicker. The plaintiff is one of the legal representatives of Keshava Panicker. According to him, the plaint schedule property devolved on the plaintiff and other legal representatives of Keshava Panicker, on his death. There was a partition in the family of Keshava Panicker in the year 1972. Ext.A3

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SA.No. 316 of 1999

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is the said partition deed. In terms of Ext.A3 partition deed, the plaint schedule property was allotted to the share of the plaintiff. The case set out by the plaintiff in the plaint is that the defendants, who are the successors of Sivarama Panicker and who hold properties on the north and west of the plaint schedule property have trespassed into the plaint schedule property. The suit, in the circumstances, was for recovery of possession of the plaint schedule property on the strength of the title. The defendants resisted the suit contending, among others, that they have perfected title to the plaint schedule property by adverse possession and limitation. The trial court accepted the said case of the defendants and dismissed the suit and the decision of the trial court has been confirmed in appeal. The plaintiff challenged the said decisions before this Court in S.A.No.970 of 1979. In the said case, though this Court reversed the findings of the courts below that the defendants have perfected title to the suit property by adverse possession and limitation, the suit was remitted to the trial court for fresh disposal holding that the plaint schedule property has not been properly identified in the suit. Thereupon, an Advocate Commissioner was appointed by the trial court for identification of the suit property. In fact, there was an earlier suit

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SA.No. 316 of 1999

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by a stranger against the defendants in respect of the 2 acres and 25 cents of property obtained by Sivarama Panicker in terms of Ext.A1 partition deed as B schedule item No.1 therein, and the land adjoining the same in their possession. The property in the possession of the defendants was identified in the said suit. Ext.B1(a) is the plan prepared by the Advocate Commissioner in the said suit. The Advocate Commissioner appointed in the present suit, in the circumstances, identified the plaint schedule property based on Ext.B1(a) plan. The trial court accepted the report of the Advocate Commissioner and decreed the suit permitting the plaintiff to recover the plaint schedule property from the defendants as identified by the Advocate Commissioner. Though defendants 4 and 7 challenged the decision of the trial court in appeal, the appellate court, on a re-appraisal of the materials on record, confirmed the decision of the trial court. It is aggrieved by the said decisions of the courts below that the tenth defendant is pursuing this second appeal which was instituted by defendants 4 and 7.

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Heard the learned counsel for the appellant.

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As noted, in the light of the decision of this Court in

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S.A.No.970 of 1979, the only issue that is relevant is the issue relating to the identity of the plaint schedule property. The issue

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SA.No. 316 of 1999

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relating to the identity of an item of immovable property is a pure question of fact. Two courts have concurrently found the said issue against the defendants. As such, unless it is shown that the findings rendered on the said issue are perverse, this Court may not interfere with such findings. It is not demonstrated that the findings on the aforesaid issue is perverse in any manner. Be that as it may. The Advocate Commissioner appointed in the suit has identified the suit property and filed a report and plan. The tenth defendant, who is now pursuing the second appeal, has not filed any objection against the report and plan submitted by the Advocate Commissioner after identifying the property. In other words, it can be taken that the tenth defendant had no objection to the identification of the plaint schedule property made by the Advocate Commissioner. In so far as the tenth defendant has not filed any objection to the report and plan submitted by the Advocate Commissioner, I do not find any bonafides on the part of the tenth defendant in pursuing this appeal filed by defendants 4 and 7. Further, it has come out that the defendants, who have obtained only an extent of 2 acres and 25 cents of property from their predecessor, are now in possession of 2 acres and 50 cents of property. The defendants have no case that they have obtained the

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SA.No. 316 of 1999

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excess property in their possession under a different title. It is the said excess property in their possession that is permitted to be recovered in terms of the impugned decisions. There is, therefore, no scope also for the tenth defendant to be aggrieved by the impugned decisions.

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The second appeal, in the circumstances, is without merits and the same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR

JUDGE

SKS

Sivarama Panicker Viswanathan, v. Appipennu Karthiyani

Case brief

What is this about?

What did the court decide?

Sivarama Panicker Viswanathan, v. Appipennu Karthiyani

Case brief

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