Dismissed

Combi v. K.S.Ramachandran @ K.S.R. Chandran

Kerala HC23 Sept 2021RFA/784/2008

Case brief

AI extract

What is this about?

This court dismissed an appeal challenging a decree in a suit for recovery of possession. The court held that claims of tenancy and adverse possession were inconsistent and unsupported by evidence. It ruled that the defendant could not attack the validity of the Will to defeat a suit instituted by a legal heir, dismissing the appeal.

What did the court decide?

The appeal was dismissed without cost. Court fee payable is fixed at Rs. 1,88,400/- to be recovered under Rule 14 of Order 33 CPC if not paid within two weeks.

Combi Vs K.S.Ramachandran @ K.S.R. Chandran — Property and Title | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

THURSDAY, THE 23^RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943 RFA NO. 784 OF 2008(INDIGENT)

¶5

AGAINST THE JUDGMENT AND DECREE DATED 24/01/2008 IN OS 63/1999 OF SUB COURT, OTTAPPALAM

¶6

APPELLANT/1ST DEFENDANT:

¶7

*1COMBI, S/O.PANNAKKATTIL NANJAN, VENGASSERY AMSOM AND
DESOM, OTTAPALAM TALUK (DIED)

¶8

ADDITIONAL APPELLANTS IMPLEADED

¶9

ADDL.A2HARIDASAN P.K., S/O.COMBI, PANNAKATTIL HOUSE,
VENGASSERY AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD.

¶10

ADDL.A3 MOHANDAS, S/O.COMBI, PANAKKATTIL HOUSE, VENGASSERY AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD.

¶11

ADDL.A4 SATHYABHAMA P.K., W/O.UNNIKRISHNAN, PARALADI(H) VALLIKODE P.O. PALAKKAD DISTRICT.

¶12

ADDL.A5 AJITHA, PUNNAKULAM (H), KULUVANMUKKU P.O., KUZHALAMANNAM, PALAKKAD.

¶13

6 MANJULA P.K., NADAKKAVU(H) KAKKAYUR P.O, KODUVAYUR

¶14

7 SHINY, VAZHAKADU (H), PERUVAMB P.O., PALAKKAD.

¶15

ADDITIONAL APPELLANTS A2 TO A7 ARE IMPLEADED AND IT IS
RECORDED THAT THE ADDITIONAL APPELLANTS 2 TO 7 AND THE
SECOND RESPONDENT IN THE APPEAL ARE THE LEGAL HEIRS OF
THE DECEASED SOLE APPELLANT VIDE ORDER DATED 26.9.17 IN
IA 1623/17

¶16

BY ADVS. SMT.S.KARTHIKA
 SMT.K.P.GEETHA MANI
 SRI.M.S.UNNIKRISHNAN

¶17

RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:

¶18

*1K.S.RAMACHANDRAN @ K.S.R. CHANDRAN
S/O.KOTTIVATTATTUMADATHIL LATE SIVARAMA IYER,
THRIKKANGODE AMSOM, MANISSERY DESOM,
OTTAPALAM TALUK. (DIED)

¶19

2 KAMALAKSHY, W/O.COMBI, VENGASSERY AMSOM AND DESOM IN OTTAPALAM TALUK.

¶20

RFA NO. 784 OF 2008(INDIGENT) 2

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ADDITIONAL RESPONDENTS 3 TO 8 IMPLEADED

¶22

ADDL.R3 AMBIKA AMBAL, AGED 76 YEARS, W/O.K.S.RAMACHANDRAN @ K.S.R. CHANDRAN, 'SRI BRINDAVAN' FLAT, DOOR NO. 7A, G 2, 35TH STREET, NANGANELLUR, CHENNAI 600 061.

¶23

ADDL.R4 K.S.SIVARAMAN, AGED 57 YEARS, S/O.LATE K.S.RAMACHANDRAN @ K.S.R.CHANDRAN, NO.7,5TH CROSS STREET, SRI RAM NAGAR,PEERICANKANNI, PERUMGULATHUR, CHENNAI 600 063

¶24

ADDL.R5 K.S.SUBBARAMAN, AGED 53 YEARS, 'SRI BRINDAVAN' FLAT, DOOR NO. 7A, G 2, 35TH STREET, NANGANELLUR, CHENNAI 600 061.

¶25

ADDL.R6K.R.ANANTHAVALLI, AGED 55 YEARS, D/O.LATE
K.S.RAMACHANDRAN @ K.S.R.
CHANDRAN, S-2, ADITHYA MANOR, 9/5,
3RD MAIN ROAD,

¶26

NANGANELLUR, CHENNAI 600 061.

¶27

ADDL.R7 K.R.JAYANTHI, AGED 50 YEARS,D/O.LATE K.S.RAMACHANDRAN @ K.S.R. CHANDRAN , JAYALAKSHMI APARTMENTS, NO.17, FLAT B, A BLOCK, 4TH MAIN ROAD, NANGANELLUR, CHENNAI 600 061.

¶28

ADDL.R8ANNAPOORNI SANKARANARAYANAN,
AGED 46 YEARS, D/O.LATE K.S.RAMACHANDRAN @
K.S.R.CHANDRAN, DOOR NO.1 PLOT NO.48,7TH STREET,
GANESH NAGAR, PUZHUTHUVAKKAM, CHENNAI 600061.

¶29

LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT
ARE IMPLEADED AS ADDL.R3 TO R8 AS PER ORDER DATED
10.07.2018 IN IA 1056/2018.

¶30

BY ADVS.
SRI.P.T.GIRIJAN
SRI.P.S.ABHISHEK
SRI.N.SUBRAMANIAM
SMT.V.BHARGAVI (PANANGAD)
SMT.USHA NARAYANAN
SMT.NEENU PAVITHRAN
SRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
SHRI.AKSHAY R

¶31

THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON

¶32

23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶33

RFA NO. 784 OF 2008(INDIGENT) 3

¶34

JUDGMENT

¶35

Tenancy right was raised by the defendant over
10 acres of property in a suit for injunction
simplicitor of the year 1987 and it was referred
under Section 125 of Kerala Land Reforms Act for
adjudication, wherein it was answered negatively
due to lack of evidence. Thereon, the plaint was
amended for recovery of possession. A claim of
adverse possession was raised by the defendant.
The suit was decreed based on the title of the
year 1947 (partition deed) and a registered Will
No.41/1972.

¶36

2. The decree and judgment of the trial court
were assailed mainly on the reason that the Will
was not proved in accordance with the mandate
under Section 68 of the Evidence Act by summoning
one among the attesting witnesses to the document.
The identity of the property was not disclosed in
the registered Will. The claim of adverse
possession was not considered properly.

¶37

RFA NO. 784 OF 2008(INDIGENT) 4

¶38

3. The contention of tenancy right and adverse
possession is mutually destructive and hence
cannot be sustained. The tenancy right claimed was
rejected by the Land Tribunal on a reference under
Section 125 of the KLR Act due to lack of
evidence. Nothing was brought to the notice of
this court regarding any acceptable proof or
evidence showing any existing tenancy right. As
discussed earlier, the claim of adverse possession
is mutually destructive and inconsistent, hence
cannot be sustained.

¶39

4. Regarding the Will, even otherwise the
plaintiff is one of the legal heirs of deceased
testator and being a co-owner, he can very well
maintain a suit. The genuineness of the Will is a
matter to be adjudicated between the persons who
are litigating under the testator, and it will not
be a ground of attack available to the defendant
who had set up a different claim over the
property. Hence, the appeal lacks merits, deserves
only dismissal. I do so.

¶40

RFA NO. 784 OF 2008(INDIGENT) 5

¶41

The court fee payable comes to Rs.2,17,900/-,
but it was submitted by the counsel for the
appellant that the actual court fee payable is
only Rs.1,88,400/- and there is some inadvertent
mistake in the calculation. In the lower court,
the court fee paid comes to Rs.1,88,400/ and hence

¶42

the court fee payable can be fixed at
Rs.1,88,400/-. Since the suit was filed as an
indigent person, the appellant is liable to pay
the said court fee within two weeks, failing which
it shall be recovered. The Registry shall forward
a copy of the decree to the District Collector for
recovery under Rule 14 of Order 33 CPC. The appeal
will stand dismissed without cost.

¶43

Sd/-

¶44

P.SOMARAJAN JUDGE

¶45

msp

Combi v. K.S.Ramachandran @ K.S.R. Chandran

Case brief

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What did the court decide?

Combi v. K.S.Ramachandran @ K.S.R. Chandran

Case brief

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