This second appeal sought to challenge the reverse of a decree of dismissal for an injunction suit by plaintiffs claiming title via devolution. The court dismissed the appeal, noting the appellant failed to prove possession and that a prior assignment deed precluded devolution.
Second Appeal dismissed without costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.SOMARAJAN
WEDNESDAY,THE 21ST DAY OF NOVEMBER,2018/30TH KARTHIKA, 1940
SA.No.341 of 2003
AGAINST THE DECREE AND JUDGMENT DATED 31.1.2002 IN A.S.NO.31/1995 OF THE II ADDL. DISTRICT COURT, PALAKKAD
AGAINST THE DECREE AND JUDGMENT DATED 30.9.1994 IN OS NO.863/1991 OF THE PRINCIPAL MUNSIFF'S COURT, PALAKKAD
APPELLANT/RESPONDENT/DEFENDANT:
PONNU, S/O.CHAMU, (DIED) RESIDING AT VADAKKODE VEEDU, ELAPPULLI AMSOM, PALAKKAD TALUK. (LRS IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 6 AND ADDITIONAL RESPONDENTS 3 TO 6)
SUPPLEMENTAL APPELLANTS -
2 PARVATHY. P.,D/O.LATE PONNU AND LATE THATHA, W/O.KANDAMUTHAN P.K., RESIDING AT PARAPPANA HOUSE, KINASSERY P.O.-678 707, PALAKKAD DISTRICT.
3 SULOCHANA P., D/O.LATE PONNU AND LATE THATHA ,W/O.RAMAN, RESIDING AT CHUTTIPPARA HOUSE, VENGODI P.O-678622,PALAKKAD DISRICT.
4 THANKAMANI P., D/O.LATE PONNU AND LATE THATHA ,W/O.MOHANAN, RESIDING AT APPUPILLAYOOR HOUSE, ERATTAKULAM P.O-678 622.
5 RAJAN,S/O.LATE PONNU AND LATE THATHA, RESIDING AT VADAKODE VEEDU, ELAPPULLY AMSOM, ELAPPULLY P.O.-678 622, PALAKKAD DISTRICT.
6 MOHANAN, S/O.LATE PONNU AND LATE THATHA, RESIDING AT VADAKODE VEEDU, ELAPPULLY P.O.-678 622, PALAKKAD DISTRICT.
LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 6 AND ADDITIONAL RESPONDENTS 3 TO 6 AS PER ORDER DATED 13.07.2017 IN IA.NO.2983/2014. ADDL.A2 TO A6 BY ADV. SRI.D.KRISHNA PRASAD SRI.VISHNU PRASAD SMT.MINI V.MENON
S.A.No.341 of 2003
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RESPONDENTS/APPELLANTS/PLAINTIFFS:
1 MADHAVAN (DIED) RESIDING AT KOTTEKKAD AMSOM, ARIMBRATHODI, PALAKKAD TALUK. (LRS. IMPLEADED AND RECORDED) 2 RAJAN,S/O.MADHAVAN, RESIDING AT KOTTEKKAD AMSOM, ARIMBRATHODI, PALAKKAD TALUK. ADDITIONAL RESPONDENTS: 3 KALLYANI, W/O.LATE PONNU, VADAKODE VEEDU, ELAPPULLY P.O- 678 622, PALAKKAD DISTRICT. 4 SURESH, S/O.LATE PONNU AND KALLYANI, VADAKODE VEEDU, ELAPPULLY P.O- 678 622, PALAKKAD DISTRICT. 5 GEETHA, D/O.LATE PONNU AND KALLYANI, W/O.MURALEEDHARAN, RESIDING AT KULATHINPALLA HOUSE, MUTTIKULANGARA P.O-678594,PALAKKAD DISTRICT. 6 SHEEJA, D/O.LATE PONNU AND KALLYANI, W/O. KALADHARAN, RESIDING AT KULAMADACHALLA HOUSE, MENONPARA P.O-678556,PALAKKAD DISTRICT. ADDL. RESPONDENTS 7 SAROJINI, W/O.LATE MADHAVAN, RESIDING AT ARIMBRATHODIHIL, KOTTEKKAD AMSOM, PALAKKAD TALUK. 8 BEENA, D/O.LATE MADHAVAN, RESIDING AT ARIMBRATHODIHIL, KOTTEKKAD AMSOM, PALAKKAD TALUK. LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 6 AND ADDITIONAL RESPONDENTS 3 TO 6 AS PER ORDER DATED 13.07.2017 IN IA.NO.2983/2014. 2nd RESPONDENT IS RECORDED AND ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1st RESPONDENT AS PER THE ORDER DATED 13.7.2017 IN I.A.NO.212/2015. R2 BY ADV. SRI.JACOB SEBASTIAN
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Against the reversal of the decree of dismissal of the suit by the first appellate court (II Additional District Court, Palakkad) in A.S.No.31 of 1995, the defendant came up with this second appeal.
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enjoyment of the property. The suit was
instituted when there was an attempt to trespass upon the property by the defendant.
was so far not challenged by the defendant. It stands in the name of deceased Valliyammal and her two children, a deceased daughter and the second plaintiff herein. No counter claim was raised in the suit and no suit was filed for setting aside the said document. Now the period available for setting aside the document also lapsed. The plaintiffs, being the owners of the property, who obtained the same by devolution, it can be safely
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presumed that they are in possession of the property, unless otherwise proved the contrary. The learned counsel for the appellant advanced an argument that the title of the property need not be considered in a suit for injunction simplicitor and what matters is the possession of the property and took support from the legal position laid down in Pattathari Kuttiraman v. Puthukkudi Narayanan (2010 (3) KHC 136) by a single Judge of this Court. The legal proposition laid down in the said decision will not in any way improve the case advanced by the defendant as the possession normally would go along with the title unless otherwise the contrary is established. No material was placed in order to show the possession of the defendant herein. On the other hand, what he has claimed is exclusive title over the property on the death of his father Chamu. The document Ext.A1 of the year 1986 shows that Chamu was not holding any right, title or interest over the property as on the date of his death. In other words, nothing was left out over the property by Chamu at the time of his death. So,
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there is no question of devolution in favour of the defendant in so far as the plaint schedule property is concerned.
The Second Appeal lacks in merits, deserves only dismissal and I do so, but without costs.
Sd/
P.SOMARAJAN
JUDGE
ahz/
3 issues framed by the court
Whether the title of the property should be considered in a suit for injunction simplicitor where possession was not established by the appellant.
Whether the appellant is entitled to devolution of the property in view of the prior assignment deed executed in 1986.
Whether the appeal against the revision of the decree dismissing the suit deserves to be allowed.
Colour shows how this judgement treated each authority
Pattathari Kuttiraman v. Puthukkudi NarayananReferred¶6
Pattathari Kuttiraman v. Puthukkudi Narayanan (2010 (3) KHC 136)
PONNU, S/O.CHAMU
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
