Allowed

M.M.Paulose v. John M.Paul

Kerala HC17 Jan 2022OP(C)/1061/2014

Case brief

AI extract

What is this about?

Single judge bench allowed appeal against decree in suit for declaration of title. Court set aside trial court's refusal to grant relief regarding factory building and shed (items 2 and 3), decreeing the suit in full, as the question of title to structures was not available for adjudication via counterclaim.

What did the court decide?

The decree and judgment of the trial court are set aside regarding items 2 and 3; the suit is decreed in full inclusive of property scheduled as items 2 and 3.

M.M.Paulose Vs John M.Paul — Execution and Attachment | Kerala HC (2022)

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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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MONDAY, THE 17^th DAY OF JANUARY 2022 / 27TH POUSHA, 1943

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RFA NO. 486 OF 2008 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 19.10.2007 IN OS No.181/2006 OF

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PRINCIPAL SUB COURT, ALAPPUZHA

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APPELLANTS/PLAINTIFFS:

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1 BINU M.JOHNSON, MANNARETHU VEEDU, ANAPRAMBAL NORTH P.O., ALAPPUZHA DISTRICT.

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2 JOHNSON M. PAUL, S/o M.M.PAULOSE, DO. DO.

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BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)

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RESPONDENTS/DEFENDANTS:

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1 M.M.PAULOSE, MANNATETHU VEETIL, ANAPRAMBAL NORTH P.O., ALAPPUZHA DISTRICT.

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2 AMMINIKUTY PAULOSE, W/o M.M.PAULOSE, DO. DO.

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3 ELIYAAMMA MATHEW, PAURETHU VEETIL, CHERUKOL P.O., ALAPPUZHA DISTRICT. R1 BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 17.01.2022, ALONG WITH OP(C).1061/2014 & WP (C) No. 25195/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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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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MONDAY, THE 17^th DAY OF JANUARY 2022 / 27TH POUSHA, 1943

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ORDER DATED 5.6.2013 IN E.P.No.289/2011 IN O.S.No.882/2004 OF

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ADDITIONAL MUNSIFF COURT, ALAPPUZHA

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A.S.No.33/2009 OF DISTRICT COURT, ALAPPUZHA

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PETITIONER:

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M.M.PAULOSE, AGED 77 YEARS, S/o LATE MATHAI, MANNARETHU VEEDU, ANAPARAMBAL NORTH P.O, THALAVADI, ALAPPUZHA DISTRICT, PIN-689 572

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BY ADVS. SRI.ABRAHAM SAMSON

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SMT.LOVELY SAMSON

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RESPONDENTS:

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1 JOHNSON M.PAUL, S/o PAULOSE, PRAKASH VESSAL PALACE, JOHNSON BUILDING, EDATHUA P.O, PIN-689 573

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2 BINU M. JOHNSON, W/o JOHNSON, PRAKASH VESSAL PALACE, JOHNSON BUILDING, EDATHUA P.O, PIN-689 573.

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BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)

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THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 17.01.2022, ALONG WITH RFA.486/2008 AND W.P © No.25195/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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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 MONDAY, THE 17^th DAY OF JANUARY 2022 / 27TH POUSHA, 1943 WP(C) NO. 25195 OF 2013 (Y)

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PETITIONER:

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M.M.PAULOSE, MANNARATHIL HOUSE, ANAPRAMBAL NORTH, THALAVADY P.O., PIN: 689 527, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON

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RESPONDENTS:

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1 ALAPPUZHA MAINTENANCE APPELLATE TRIBUNAL, ALAPPUZHA 689 001.

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2 JOHNSON M.PAUL, PRAKASH VESSEL PALACE, EDATHUA P.O. 689 573.

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3 BINU M.JOHNSON, PRAKASH VESSEL PALACE, EDATHUA P.O 689 573.

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4 REVENUE DIVISIONAL OFFICER ALAPPUZHA 689 001.

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R2 & R3 BY ADV SRI.UNNI. K.K. (EZHUMATTOOR) R1 & R4 BY GOVERNMENT PLEADER SRI. S. UNNIKRISHNAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 17.01.2022, ALONG WITH RFA.486/2008 AND O.P.(C) No.1061/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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JUDGMENT

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This appeal is against the decree and judgment of the Sub Court, Alappuzha. It is a suit for declaration of title over item No.1 immovable property and the permanent structures therein - factory building and the shed, which are scheduled separately as item Nos. 2 and 3. Item No.1 property was obtained under Ext.A1 sale deed by the first plaintiff and she is in occupation and enjoyment of the property and paying basic tax. She had constructed a factory building in that property by purchasing the structures from a partnership firm by availing a loan from the bank. The defendants are her close relatives. They contended that she has not acquired any right, title or interest over the property. Inter alia it is contended that the building situated therein - item Nos.2 and 3, are

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not belonged to her and claimed that they are having right,

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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title and interest over the structures. A decree in part was granted by the trial court declaring the right, title and interest of the plaintiff over the immovable property, item No.1. But, the relief in so far as item Nos.2 and 3 was declined mainly on the reason that there can be separate entity for the structures situated in the property and that the maxim quid quid inaedificatur solo solo cedit (the building on a land belongs to the owner of the land) has no application in India. Strange enough, the Sub Court went wrong in appreciating the dispute involved in the suit and by overlooking all the settled principles declined the reliefs sought in respect of item Nos.2 and 3, that too, on extraneous matters, though the said question was not available for consideration in the suit. In the absence of a suit for declaring title over the structures situated in the property or a counter claim thereof, it is not permissible to go into that question merely based on a contention, without seeking any relief thereof. Even going by the judgment it is clear that the learned Sub Judge had gone into highly extraneous matters and entered into a

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014 6

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wrong conclusion without a definite adjudication. In fact,

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that question was not available for adjudication in the instant suit. Hence the decree and judgment of the trial court are set aside in so far as it is against the plaintiff declining the relief pertaining to item Nos.2 and 3 properties. The suit is decreed in full, as prayed for, inclusive of the property scheduled in the plaint as item Nos.2 and 3. There is no order as to cost. The appeal is allowed accordingly.

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WPC No.25195/2013 is against the order passed by the Revenue Divisional Officer rejecting the claim of the father, the first defendant. The father is a retired employee from the Government Service. His wife is also a retired teacher. That facts were taken into consideration by the officer while rejecting their claim. Prima facie it appears that there is nothing to interfere with the said order. Hence, the writ petition will stand dismissed.

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OPC No.1061/2014 is against the compromise arrived at by the parties at the execution stage. Nothing was brought to the notice of this court in order to have an

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014 7

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interference with the compromise arrived at and signed by the parties. Hence the original petition will stand

dismissed.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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APPENDIX OF OP(C) 1061/2014

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PETITIONER'S EXHIBITS

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EXT.	P1	COMPROMISE PETITION IN A.S.NO.33 OF 2009 FILED BEFORE THE DISTRICT COURT, ALAPPUZHA.
EXT.	P2	ORDER IN E.P.NO.214 OF 2010 IN OS NO.882/2004 PASSED BY THE LEARNED MUNSIFF, ALAPPUZHA.
EXT.	P3	ORDER IN E.P.NO.128 OF 2010 IN O.S.NO.882/2004 PASSED BY THE LEARNED MUNSIFF, ALAPPUZHA.
EXT.	P4	ORDER PASSED BY THE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, ALAPPUZHA IN MWP NO.19 OF 2012.
EXT.	P5	ORDER PASSED BY THE APPELLATE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, ALAPPUZHA.
EXT.	P6	ORDER IN E.P.NO.289/2011 IN O.S.882/2004 BY THE LEARNED MUNSIFF ALAPPUZHA.
RESP	ONDENTS'	EXHIBIT
EXT.	R1	TRUE COPY OF THE JUDGMENT DATED 29.10.2012 IN W.P.(C) No.26925/2011.

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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APPENDIX OF WP(C) 25195/2013

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PETITIONER'S EXHIBITS

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EXT. P1	TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, ALLEPPEY AS MWP NO.19/2010 DATED 4/12/2012.
EXT P2	TRUE COPY OF THE MEMO FILED BY THE PETITIONER BEFORE THE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, ALLEPPEY AS MWP NO.19/2012 DATED 17/12/2012.
EXT.P3	TRUE COPY OF THE ORDER DATED 20/10/2011 IN MWP NO.19/2010 PASSED BY THE 4TH RESPONDENT.
EXT.P4	TRUE COPY OF THE ORDER NO.5185/11/E DATED 27/2/2013 PASSED BY THE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, ALLEPPEY.
EXT.P5	TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 1/4/2013.
EXT.P6	TRUE COPY OF THE ORDER NO.K.DIS/16704/2013/N7 DATED 20/6/2013 PASSED BY THE 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS

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EXHIBIT R2	TRUE COPY OF JUDGMENT.	THE	COMPROMISE DECREE AND
EXHIBIT R2(a)	TRUE COPY OF No.289/2001 I	THE N O	ORDER PASSED IN EP .S.No.882/2004.
EXHIBIT R2(b)	TRUE COPY OF	THE	JUDGMENT PASSED IN W.P.(C)
	No.26925/2011	DA	TED 29.10.2012.

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RFA No. 486 of 2008, WPC No.25195 of 2013 & OPC No.1061 of 2014

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APPENDIX OF RFA 486/2008

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APPELLANTS' ANNEXURE:

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ANNEXURE C1 : - TRUE COPY OF THE COMPROMISE DEED FILED BEFORE THE DISTRICT COURT, ALLEPPEY IN A.S.No.33/2009 ON 09.04.2010.

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RESPONDENTS' ANNEXURE: NIL

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// TRUE COPY //

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P.A. TO JUDGE

M.M.Paulose v. John M.Paul

Case brief

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M.M.Paulose v. John M.Paul

Case brief

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