Dismissed

Vincent Mathew v. Leelamma

Kerala HC15 Mar 2019SA/277/2001

Case brief

AI extract

What is this about?

In two second appeals regarding suits for declaration of title and connected suits, the High Court of Kerala dismissed the appeals. The Court upheld the First Appellate Court's decision, finding no interference for plot No.4 as it was puramboke land and noting no evidence of trespass on defendants' property to warrant mandatory injunction.

What did the court decide?

Dismissal of Second Appeals 277 and 278/2001 without order as to costs.

Vincent Mathew Vs Leelamma — Partition | 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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FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940

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SA.No. 277 of 2001 (G)

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AGAINST THE DECREE AND JUDGMENT DATED 28.11.2000 IN AS No.34/1997 of SUB COURT, PALA

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AGAINST THE DECREE AND JUDGMENT DATED 30.09.1997 IN OS No.121/1989 of MUNSIFF COURT, PALA

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APPELLANT/2nd RESPONDENT/ADDL. 2 nd PLAINTIFF:

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VINCENT MATHEW, KUNNATHUPARA HOUSE, VELLILAPPALLY VILLAGE, EZHACHERRY KARA.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/APPELLANTS-RESPONDENTS/DEFENDANTS:

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1 LEELAMMA, W/o MANY, KAVIYIL, ANTHINADU KARA, LALAM VILLAGE.

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2 K.T. JOSEPH, S/o THOMAS, DO. DO.

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3 KURIAN ROSAMMA, KUNNATHUPARA PLATHOTTATHIL, ANTHINADU KARA, LALAM VILLAGE.

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4 THOMAS KURIAN, DO. DO.

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BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 & R2

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, ALONG WITH SA.278/2001. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.A.Nos.277 & 278/2001

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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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FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940

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SA.No. 278 of 2001 (G)

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AGAINST THE DECREE AND JUDGMENT DATED 28.11.2000 IN AS No.33/1997 of SUB COURT, PALA

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AGAINST THE DECREE AND JUDGMENT DATED 30.09.1997 IN OS No.73/1990 of MUNSIFF COURT, PALA

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APPELLANTS/RESPONDENTS 1 & 5/DEFENDANTS 1 & 5:

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1 MATHEW, S/o MATHAI, KUNNATHUMPARA, EZHACHERRY KARA, VELLILAPPALLY VILLAGE. (DIED)

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(THE SECOND APPELLANT AND RESPONDENTS 3 TO 6 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED 1^st APPELLANT VIDE ORDER DATED 02.06.2009 IN MEMO BEARING CF 2490/09) 2 VINCENT, S/o MATHEW, DO. DO.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/APPELLANTS – RESPONDENTS 3 TO 4 & 6/PLAINTIFF – DEFENDANTS 2 TO 4 AND 6:

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1 JOSEPH THOMAS, S/o THOMAS, KAVIYIL, ANTHINADU KARA, LALAM VILLAGE.

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2 LEELAMMA MANI, W/o MANI,

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DO. DO.

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3 OUSEPH, S/o MATHEW, KUNNATHUMPARA HOUSE, EZHACHERRY KARA, VELLILAPPALLY VILLAGE.

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4 AVIRAH, DO. DO.

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5 DOMINIC, DO. DO.

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6 SEBASTIAN, DO. DO. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 & R2

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, ALONG WITH SA.277/2001. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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S.A.Nos.277 & 278/2001

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JUDGMENT

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The suit in O.S.No.121/1989 for declaration of title

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and that Ext.A3 document is not binding on the plaintiff was tried along with a connected suit in O.S.No.73/1990 filed by the defendant. The Trial Court decreed the leading case in O.S.No.121/1989 and consequently dismissed the connected suit in O.S.No.73/1990. It was taken up in appeal and the Appellate Court reversed the finding of the Trial Court and modified the decree granted in O.S.No.121/1989 regarding the declaration granted over item No.4 property in Ext.C2(a) plan, but decreed the suit as against plot No.5 in Ext.C2(a) plan. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.

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There is no much dispute with respect to the

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respective title of parties. A large extent of property was owned by the plaintiff, out of which an extent of 2.100 cents with side measurement was given to third and fourth defendants under Ext.A2 sale deed and they, in turn, sold the said property to the defendants 1 and 2 under Ext.A3 wherein they have included two cents of property lying on the backside of the said property as excess land. It is

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admittedly a puramboke land lying adjoining to the registered holding under Ext.A2.

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S.A.Nos.277 & 278/2001

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In so far as plot No.4 property in Ext.C2(a) plan is concerned, it is a puramboke land lying adjoining to the registered holding of plaintiff and as such no interference is required in the matter of non grant of declaration. In so far as plot No.5 is concerned, the decree and judgment of the Trial Court was confirmed declaring the title of plaintiff over the property. It is lying on the northern side of the registered holding of plaintiff. The defendants' property is located as plot Nos.2 and 3 having a total extent of 2.100 cents. Item No.1 lying in front of

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their property is facing towards the road and it is admittedly a puramboke land over which the plaintiff in the leading case cannot claim any right, title or interest. The decree granted in the connected suit was also challenged on the reason that only a mandatory injunction was sought by the defendant who is the plaintiff in the connected suit. It is submitted that unless there is a prayer for recovery of possession, no such mandatory injunction can be granted. It is pertinent to note that defendants 1 and 2 are really litigating under the plaintiff through defendants 3 and 4.

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The plaintiff sold a portion of their property to defendants 3 and 4 and they, in turn, sold the property to the first and second defendants. The plaintiff has no case

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S.A.Nos.277 & 278/2001 5

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that after the sale and delivering possession of the property as enumerated and recited in the document they have committed trespass upon any portion of that property. In the absence of such a contention, it cannot be said that there should be a prayer for recovery of possession. If any construction or structure is abutting into the property owned by the first and second defendants, it is the liability of the plaintiff to remove the same for which a relief of mandatory injunction would be sufficient. No other reason was brought to the notice of this Court in order to have an interference in the decree and judgment of the First Appellate Court. Hence, both the appeals are liable to be dismissed and I do so.

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In the result, both the appeals are dismissed. No order as to costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Vincent Mathew v. Leelamma

Case brief

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Vincent Mathew v. Leelamma

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