The High Court dismissed a regular second appeal challenging a decree for recovery of possession. The court held that the lower courts correctly decreed the suit based on plaintiff's title and that the eviction order was not granted without a prayer in the plaint.
The second appeal was dismissed and the decree and judgment of the courts below were confirmed.
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 A. BADHARUDEEN
THURSDAY, THE 14TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945
RSA NO. 676 OF 2021
AGAINST THE DECREE AND JUDGMENT DATED 27.08.2021 IN A.S.NO.29/2019
ON THE FILES OF THE COURT OF THE SUBORDINATE JUDGE, KARUNAGAPPALLY
ARISING FROM THE DECREE AND JUDGMENT DATED 26.02.2019 IN
O.S.NO.71/2012 ON THE FILES OF THE COURT OF THE MUNSIFF-
MAGISTRATE, SASTHAMCOTTA
APPELLANT/APPELLANT/DEFENANT:
SYAMALA
AGED 72 YEARS,
W/O.GOPI, RESIDING AT MOOLATHARA THEKKATHIL,
AITHOTTUVA MURI, WEST KALLADA VILLAGE, KOLLAM - 691500
BY ADVS.
HARISH GOPINATH
ARYA UNNIKRISHNAN
RESPONDENT/RESPONDENT/PLAINTIFF:
CHANDRALAL
AGED 42 YEARS
S/O.NADARAJAN, RESIDING AT THARAYIL VEEDU, KIDAPURAM
MURI, MUNDROTHURUTHU VILLAGE, KOLLAM - 690538
BY ADV UMMUL FIDA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 676 of 2021
2
JUDGMENT
Dated this the 14th day of December, 2023
This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.29 of 2019 dated 27.08.2021 on the files of the Court of the Subordinate Judge, Karunagappally arose from decree and judgment in O.S. No.71 of 2012 dated 26.02.2019 on the files of the Court of the MunsiffMagistrate, Sasthamcotta. The appellant herein is the defendant and the respondent is the plaintiff in O.S. No.71 of 2012.
R.S.A. No. 676 of 2021
3
second appeal by formulating the following substantial question of law:
Whether the two courts below went wrong in granting a decree for recovery of possession without a specific relief for the same?
R.S.A. No. 676 of 2021
4
statement denying her status as that of a tenant and also denying execution of the lease agreement relied upon by the plaintiff. According to the defendant, the defendant executed Ext.A6 sale deed in favour of one John and John in turn executed Ext.A5 sale deed in favour of the plaintiff. However, the title and possession of the plaint schedule property is with her.
In the result suit is decreed with costs as follows:
i) The defendant is directed to remove herself from the plaint schedule property including building in it, if not, the plaintiff is entitled to evict the defendant.
ii) The plaintiff is entitled to get recovery of possession of plaint schedule property and the building in it.
R.S.A. No. 676 of 2021
5
R.S.A. No. 676 of 2021
6
building number as argued, though change in the building number by the local Authority periodically shall have no bearing as regards to the identity of the building which is situated in the property obtained by the plaintif f as per Ext.A5 in continuation of Ext.A6.
10. In this case, even though the defendant raised contention that Ext.A6 was executed as a security document, the same is a sale deed. The defendant did not raise any challenge against the said sale deed, a validly registered document to eface its legal ef f ect either by f declaring the same as void or to declare the same as a sham document, not binding on the plaintif f . Therefore, the legality of Ext.A6 is not challenged at all. Thus, as per Ext.A6 John obtained title over the plaint schedule property and the building situated therein. When John executed Ext.A5, the plaintif f got title over the same. In so far as Ext.A1 rent agreement is concerned, the Courts below held that Ext.A1 also was proved, though according to the defendant the same was not proved or not executed by the defendant.
R.S.A. No. 676 of 2021
7
11. In the instant case, it is emphatically clear that the plaintif f parted title over the plaint schedule property and the building therein as per Ext.A6 and later the same was assigned in favour of the plaintif f . Further, Ext.A1 would go to show that the defendant has been continuing there as a tenant. Since, no challenge raised against Ext.A6 sale deed, the case of the defendant denying her status as that of a tenant as per Ext.A1 could not succeed. To the contrary, the plaintif f proved title over the plaint schedule property.
12. Answering the substantial questions of law as herein above discussed, it is held that this is a suit f i led by the plaintif f to recover possession of plaint schedule property by the plaintif f and the said suit must succeed on the strength of title as rightly found by the trial court and conf i rmed by the Appellate Court. Thus the Courts below granted decree to vacate the plaint schedule property as prayed for in the suit and the relief was not granted without a prayer. Therefore, there is no reason to interfere with the concurrent verdicts challenged in this regular
R.S.A. No. 676 of 2021
8
second appeal. Therefore, the appeal deserves dismissal.
13. In the result, this regular second appeal fails and is dismissed accordingly. Consequently, the decree and judgment under challenge stand conf i rmed.
All interlocutory applications also stand
dismissed.
Sd/-
A. BADHARUDEEN JUDGE
SK
3 issues framed by the court
Whether the courts below erred in granting a decree for recovery of possession without a specific relief for the same?
Whether the defence regarding the security nature of the sale deed succeeded in challenging the title?
Whether the relief of eviction was granted without a prayer in the plaint?
1 provisions across 1 enactments
SYAMALA
CHANDRALAL
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court