Second appeal challenging a transfer decree in a suit for declaration of title. Overturned defendants' attempt to sustain title by disputing internal subdivision of a larger extent of land already located. Held: Appeal dismissed.
Appeal dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941
SA.No.294 of 2003
AGAINST THE JUDGMENT AND DECREE DATED 02-04-2002 IN AS 111/1995 of SUB COURT, CHERTHALA
AGAINST THE JUDGMENT AND DECREE DATED 13-07-1995 IN OS 554/1985 of ADDITIONAL MUNSIFF COURT,CHERTHALA
APPELLANTS (APPELLANTS 1 & 3 IN THE APPELLATE COURT. 1ST APPELLANT IS THE 1ST DEFENDANT IN THE TRIL COURT ORIGINAL 2ND APPELLANT 2ND DEFENDANT DIED DURING THE APPELLATE STAGE.- 2ND APPELLANT HEREIN IS THE SOLE LEGAL REPRESENTATIVE):
1 INDUMATHY AMMA
W/O.VISWANATHAN NAIR, KUNNATHU HOUSE, UZHUVA MURI, VAYALAR WEST VILLAGE, CHERTHALA.
2 PRABHASH, S/O.LATE SREEDHARAN, VELIYIL, PATTANAKKAD PANCHAYATH, WARD NO.X, PATTANAKKAD P.O., CHERTHALA.
BY ADV. SRI.V.L.SHENOY
RESPONDENT (RESPONDENT IN THE APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT):
1 PADMANABHAN
S/O.RAMAN THEKKE NIKARTHIL, PAZHAKKACHIRAYIL, UZHUVA MURI, VAYALAR WEST VILLAGE, CHERTHALA. (DIED)
LRS IMPLEADED.
ADDL. SIDHARTHAN,
R2. S/O.PADMANABHAN, MANINILAYAM, PATTANAKKADU (PO), CHERTHALA, PIN - 688 531.
SA.No.294 of 2003 2
ADDL. PANKAJAKSHAN, R3. S/O.PADMANABHAN, MANINILAYAM, PATTANAKKADU (PO), CHERTHALA, PIN - 688 531.
ADDL. JAYACHANDRAN, R4 S/O. PADMANABHAN, MANINILAYAM, PATTANAKKADU (PO), CHERTHALA, PIN - 688 531.
THE LEGAL REPRESENTATIVES OF DICEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 AS PER ORDER DATED 13/06/2019 IN IA.504/2017.
BY ADV. SRI.J.OM PRAKASH
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No.294 of 2003 3
JUDGMENT
A suit for declaration of title, possession and injunction ended in a decree in the Trial Court (Addl.Munsiff Court, Cherthala) in O.S.No.554/1985 and in the First Appellate Court (Sub Court, Cherthala) in A.S.No.111/1995. Aggrieved by the said decree and judgment, the first defendant came up with this appeal.
survey No.129/1A. According to the plaintiffs, it is a mistake, it is really situated in 129/1B. It
was obtained by the plaintiffs under Ext.A6
document of the year 1959 and form part of large
extent of 42 cents. By virtue of Ext.A11
proceedings, purchase certificate was granted, wherein the correct survey number shown as 129/1B.
It was disputed by the defendants stating that in
their document the sub division number is stated as 1A and not as 1B and that they cannot claim any
property in sub division No.1B. Inter alia , it was
SA.No.294 of 2003 4
also contended that they are the owners of 47 cents
which would form part of large extent of 89 cents inclusive of the 42 cents obtained under Ext.A6 document. The survey Commissioner who visited the property has located the 42 cents of property obtained under Ext.A6 and also the 47 cents of property belong to the defendant. Out of the 42 cents, the plaintiffs property shown as having an
extent of 15 cents and 700 square links.
the plaintiffs are entitled to only the property comprised in survey No.129/1A cannot be sustained,
simply on the reason that the letters A and B stand for division of property at the time of mutation of
the various plots given under various document of
alienation and it will not constitute any sub division of the property as per survey records and it will not create any sub division in the survey records. The property of the defendant which comes to 47 cents already located and separated. The property belonged to the plaintiffs inclusive of the large extent 42 cents also located. It is
SA.No.294 of 2003 5
out of that 42 cents the property of plaintiffs was located, wherein the defendant has no business at all as their 47 cents of property was already located and separated. It is not from the 47 cents of property owned by the defendant, the plaint schedule was separated. In short, whatever may be the identity of property or location of property claimed in the plaint out of 42 cents is an internal matter in between the person who holds various part of large extent of 42 cents, wherein the defendant has no business at all. Hence, the concurrent finding rendered by both the courts below deserves no interference by this Court. None of the questions raised would come into play. The appeal hence deserves no merit.
The appeal is dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
//TRUE COPY//
P.A. TO JUDGE
1 issue framed by the court
Whether the dispute regarding the subdivision of property (Survey No.129/1A vs 129/1B) affects the validity of the lower courts' finding on title and possession regarding the 42 cents property claimed
Indumathy Amma
Prabhash
Addl. Sidharthan
Addl. Pankajakshan
Addl. Jayachandran
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
