Appeal against a decree partially granting recovery of possession. The court dismissed the appeal and allowed the cross-objection, modifying the decree to order recovery of the entire property extent as per the plaint.
Decree of recovery of entire property extent as per plaint modified; appeal dismissed and cross-objection allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 23rd DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
AS NO. 455 OF 1995
AGAINST THE JUDGMENT AND DECREE IN OS No.339/1989 OF SUB COURT,
PALAKKAD
APPELLANTS/DEFENDANTS:
SUPPL.APPELLANTS 3 AND 4
(LRS OF FIRST APPELLANT ARE IMPLEADED AS SUPPL.APPELLANTS 3 AND 4 VIDE ORDER DATED 9/10/2018 IN IA.NO.553/2003) ADDL.APPELLANTS 5 TO 8
A.S.No.455 of 1995 & Cross objection
2
BY ADV. T.C.SURESH MENON FOR A1 TO A8 A3 & A4 BY ADVS. SRI.R.RAJA RAJA VARMA SMT.M.R.VALSA
RESPONDENT/PLAINTIFF:
1 R.S.RAMAKRISHNAN, S/o SUBBARAYA PILLAI, TRUSTEE, SRI BALIKALAMBU GANAPATHY TEMPLE, KUNNTHURMEDU, PALAKKAD. **R1 SUBSTITUTED AS. THE EXECUTIVE OFFICER, BALIKOLUMBA GANAPATHY TEMPLE, KUNNATHURMEDU, PALAKKAD 678013 (SUBSTITUTED VIDE ORDER DATED 18/11/2020 IN IA NO.2/2019 IN AS NO. 455/95.)
SUPPLEMENTAL RESPONDENTS 2 AND 3
SUPPL. M MANI, S/o LATE MADHAVAN, RESIDING AT VINAYAKAPURAM, MURUKAN NAGAR, VILANKURUSSI, RESPONDENT COIMBATORE- 35 ( DELETED) 2
SUPPLEMENTAL RESPONDENT NO.2 IS DELETED FROM PARTY ARRAY VIDE ORDER DATED 14/02/2019 IN IA NO.1/2019
SUPPL. M SARALA, D/o LATE MADHAVAN, RESIDING AT THEKKUMPURAM, KAVILPAD PO, PALAKKAD.
RESPONDENT
3 (LEGAL HEIRS OF DECEASED SECOND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 5 TO 8 AND SUPPLEMENTAL RESPONDENTS 2 AND 3 VIDE ORDER DATED 18/11/2020 IN IA NO. 4425/2006 IN AS 455/1995 OF WHICH SUPPLEMENTAL RESPONDENT No.2 HAD BEEN DELETED FROM PARTY ARRAY VIDE ORDER DATED 14.2.2019 IN I.A.1/19 AS ABOVE)
R1 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN
THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.S.No.455 of 1995 & Cross objection
3
JUDGMENT
The defendants came up in appeal against the decree
for recovery of possession decreed in part granting recovery except 2 cents of property out of the plaint schedule. The plaint schedule is a large extent of 29 cents. Admittedly, 2 ½ cents is in the possession of one Kudiyirup and ½ cents is in the possession of some other person. They sought to recover the remaining portion of property. The suit was instituted in the year 1989, when the defendants attempted to trespass into the property and put up fencing. They raised a contention that they have obtained leasehold right over the property from the erstwhile trustee of the deity to whom the property belongs and a reference was made under Section 125 of the KLR Act without adhering to the exception engrafted under Section 3 of the Act. Anyway, the tenancy was found negatively on
the ground of lack of proof to show any leasehold arrangement or subsisting leasehold right over the
property. Nothing was brought to the notice of this court
A.S.No.455 of 1995 & Cross objection
4
in support of the leasehold right raised and no documentary evidence, much less any scrap of paper, produced in that behalf. No other satisfactory evidence was also adduced. Hence, the rejection of the claim by the concerned Land Tribunal on a reference under Section 125 of the KLR Act
deserves no interference.
leasehold right over the property which was answered negatively by the Land Tribunal. As discussed above, there is no reason for interference to the finding of the Land
Tribunal. If that be so, I am at a loss to understand why the trial court had excluded 2 cents to the defendants and
ordered recovery of the balance extent. The lower court is not expected to show any kind of leniency or favour or
disfavour to any party when there is a finding that the leasehold right claimed found to be not correct. Instead of ordering recovery of the entire extent of property as
scheduled in the plaint excluding the 2 cents given in kudiyirup and ½ cents given to other person, the trial court granted a decree in part overlooking all settled
A.S.No.455 of 1995 & Cross objection
5
principles. Hence, the same is liable to be set aside and the decree granted to the plaintiffs requires modification to that extent. Hence, the appeal will stand dismissed and the cross objection will stand allowed by modifying the decree of the trial court granting recovery of the entire extent of property as scheduled in the plaint from the defendants. Both parties are directed to suffer their respective costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
2 issues framed by the court
Whether to allow or dismiss an appeal against a decree for partial recovery of possession.
Whether to modify the decree to grant recovery of the entire extent of property as scheduled in the plaint.
M. MADHAVAN
M. R. RAMAKRISHNAN
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
