Dismissed

Santhakumari v. Krishnamoorthi

Kerala HC11 Jul 2019RSA/214/2010

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal wherein the appellant challenged the first appellate court's refusal to interfere with a prior final decree. The court held that as the declaration of title and possession of the property and building had become final, no new cause of action arose merely because the building remained undismantled. Therefore, no interference with the earlier decree

What did the court decide?

Controlled dismissal of the appeal without costs.

Santhakumari Vs Krishnamoorthi — Property and Title | Kerala HC (2019)

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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.SOMARAJAN

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THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941

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RSA.No.214 of 2010

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AGAINST THE JUDGMENT/DECREE IN AS 295/2006 OF DISTRICT COURT,THIRUVANANTHAPURAM, DATED 09-11-2009

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AGAINST THE JUDGMENT/DECREE IN OS 332/1996 OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM DATED 24-11-2005

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APPELLANT/APPELLANT/DEFENDANT:

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SANTHAKUMARI

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D/O. SARASWATHI AMMA, RESIDING AT OLD TC NO.10/1151, SANTHA BHAVAN, KAVALLOOR, VATTIYOORKAVU, PEROORKADA VILLAGE, THIRUVANANTHAPURAM - 13.

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BY ADV. SRI. ALEX M.SCARIA

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RESPONDENT/RESPONDENT/PLAINTIFF:

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KRISHNAMOORTHI

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S/O.PADMANABHA PILLAI, AGED 54 YEARS, RESIDING AT ALUMMOOTTU VEEDU, T.C.10/1288, KAVALLOOR, VATTIYOORKAVU, PEROORKADA VILLAGE, THIRUVANANTHAPURAM - 13.

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BY ADVS.

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SRI.S.V.BALAKRISHNA IYER (SR.) SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.R.SURAJ KUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.214 of 2010 2

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JUDGMENT

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This appeal is filed by the defendant against the

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decree granted by the first appellate court directing the defendant to dismantle the building situated in the property. Earlier there was a suit in O.S. No. 1359/1982. It was ended in Ext.A3 judgment by the trial court. It was fought up to the second appellate court. The second appellate court ultimately delivered Ext.A5 judgment by setting aside the first appellate judgment and restoring the decree and judgment of the trial court i.e., Ext.A3, by which a decree was granted declaring the title and possession of the plaintiff over the plaint schedule property except the building situated therein. The decree has become final and conclusive. It would show that the plaintiff's title and possession was already declared by a competent court and it has become final and conclusive. What is remained in the property is the building structure. In view of the finalisation of the decree declaring possession and title, the defendant cannot claim any possession over the

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RSA.No.214 of 2010 3

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landed property/soil. The soil wherein the building is situated also form part of the earlier decree in Ext.A5 and as such after the conclusion and finalisation of earlier decree, what is remained with the defendant is the structure, the building except the soil wherein it is situated.

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It is not permissible to grant a declaration without having removal of building structure owned by the defendant. The building so long as remains in the landed property, it is not proper to grant a declaration of title of landed property without addressing the permanent structure situated therein, the building, which is owned by the defendant. But, the decree granted in the earlier proceeding has become final and conclusive as a declaration was granted over the landed property. The non-demolition of building even after the finality of earlier proceeding by the defendant would give rise another cause of action and in the peculiar circumstance involved in the instant case there cannot be any application of Order II Rule 2 of the Code of Civil

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RSA.No.214 of 2010 4

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Procedure. The finding rendered by the First Appellate Court hence deserves no interference. None of the questions raised is involved in the appeal.

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The appeal is dismissed, but without costs.

SD/-

P.SOMARAJAN

JUDGE

DCS

Santhakumari v. Krishnamoorthi

Case brief

What is this about?

What did the court decide?

Santhakumari v. Krishnamoorthi

Case brief

What is this about?

What did the court decide?

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A compact analysis

Issues for consideration

Statutes considered

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