Dismissed

Ammu Moolya v. Francis Chacko

Kerala HC14 Dec 2023RSA/76/2021

Case brief

AI extract

What is this about?

In this regular second appeal regarding a suit for recovery of possession, the High Court of Kerala dismissed the appeal. The Appellant, claiming title by adverse possession and preferential kumki right, challenged the lower courts' decree allowing the Plaintiff to recover possession based on derivative title and survey reports.

What did the court decide?

Second appeal dismissed; decree and judgment of lower courts confirmed; interlocutory applications dismissed; interim stay vacated.

Ammu Moolya Vs Francis Chacko — Partition | Kerala HC (2023)

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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 A. BADHARUDEEN

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THURSDAY, THE 14TH DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945

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RSA NO. 76 OF 2021

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AGAINST THE DECREE AND JUDGMENT DATED 28.10.2020 IN A.S.NO.45/2018 ON

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THE FILES OF THE ADDITIONAL DISTRICT JUDGE-III, KASARAGOD ARISING
FROM THE DECREE AND JUDGMENT DATED 25.10.2018 IN O.S.NO.402/2014 ON
THE FILES OF THE PRINCIPAL MUNSIFF COURT, KASARAGOD

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APPELLANT/APPELLANT/1ST DEFENDANT:

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AMMU MOOLYA
S/O.SHANKARA MOOLYA, AGED 55 YEARS,
R/AT KARINBITHLU HOUSE, KATTUKUKKE VILLAGE AND POST,
MANJESHWAR TALUK, KASARAGOD DISTRICT.

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BY ADV KODOTH SREEDHARAN

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RESPONDENTS/RESPONDENT/PLAINTIFF AND 2ND DEFENDANT:

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1 FRANCIS CHACKO

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AGED 57 YEARS, (PLAINTIFF), S/O.CHACKO,
R/AT KARINBITHLU HOUSE, KATTUKUKKE VILLAGE AND POST,
MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 552.

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2 LOKANATHA RAI

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AGED 55 YEARS, (DEFENDANT NO.2),
R/AT KARINBITHLU HOUSE, KATTUKUKKE VILLAGE AND POST,
MANJESHWAR TALUK, KASARAGOD DISTRICT - 671 552.

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BY ADVS.
SRI.K.S.BHARATHAN
SRI.ALPHIN ANTONY
SRI.AADITHYAN S.MANNALI
SRI.VISAKH ANTONY
SRI.ABEL ANTONY
SRI.CHRISTINE MATHEW
SMT.MARIA PAUL
SHRI.ADHEEP VIJAY

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON
14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A. No. 76 of 2021

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JUDGMENT

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Dated this the 14^th day of December, 2023

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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.45 of 2018 dated 28.10.2020 on the files of the Court of the Additional District Judge-III, Kasaragod arose from decree and judgment in O.S. No.402 of 2014 dated 25.10.2018 on the files of the Court of the Principal Munsiff, Kasaragod. The appellant herein is the 1^st defendant and the respondents are the plaintiff and 2^nd defendant in O.S. No. 402 of 2014.

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Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents.

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The parties in this appeal will be referred as plaintiff and defendants relegating their status before the trial court.

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At the time of admission, my learned predecessor, as per order dated 29.01.2021 admitted this

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R.S.A. No. 76 of 2021

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second appeal by formulating the following substantial question of law:

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In the light of the assignment proceedings on account of the preferential kumki right of the 1^st defendant's father, have not the two courts below gone wrong in dismissing the suit for recovery of possession in the absence of proof of derivative title on the plaintiff by wrongly casting the burden of proof on the defendant?

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On reading the substantial question of law, it appears that instead of “gone wrong in dismissing the suit for recovery of possession”, the same should have been “gone wrong in allowing the suit for recovery of possession”. Accordingly, the substantial question of law is reformulated as under:

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In the light of the assignment proceedings on account of the preferential kumki right of the 1^st defendant's father, have not the two courts below gone wrong in allowing the suit for recovery of possession in the absence of proof of

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R.S.A. No. 76 of 2021

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derivative title on the plaintiff by wrongly casting the burden of proof on the defendant?

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In this matter, the suit for recovery of possession of item No.1 to 3 of plaint C schedule properties was filed by the plaintiff asserting title upon the same on the basis of a registered release deed 10.05.2011 executed by Parvathi Amma and Devaki, who are the children of Narayana Bhat, who jointly obtained the property as per partition deed No.8/1978-79 dated 06.04.1978 of S.R.O., Vittal. The plaintiff claimed title over plaint A to C schedule properties on the basis of the said release deed as well as Sale Deed No.5636/2011 of Badiadka S.R.O. According to the plaintiff, the 1^st defendant encroached upon item No.1 and 2 of plaint C schedule properties and the 2^nd defendant encroached upon item No. 3 of plaint C schedule properties.

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Now, this regular second appeal is at the instance of the 1^st defendant. The contention raised by the 1^st defendant in the written statement as could be

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R.S.A. No. 76 of 2021

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gathered from paragraph No.7 of the written statement is as under:

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This 1^st defendant submits that the properties more fully described hereunder as 'X' schedule has been in possession and enjoyment of this defendant having been purchased as per sale deed document No.3878/2004 dated 10.11.2004. Originally the entire extent of properties in R.S No. 184/1 of Katukukke village were government lands and a portion of the same has been in the possession and enjoyment of the father of this defendant Sri. Shankara Moolya, and considering his possession and enjoyment by effecting improvements there in and the same has been assigned in favour of him as per the proceedings in L.A.52/72/Katukukke, as R.S. No.184/1C measuring 2.26 acres, and another portion measuring 0-24 acres numbered as R.S. No. 184/1B5 has also been assigned to him as per the proceedings in L.A. 46/82/Katukukke. After the above said sale deed, this defendant has been put in possession of the X schedule properties along with the other adjacent properties, by the father of this defendant. All the

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R.S.A. No. 76 of 2021

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improvements, in the said properties such as house, coconut trees cashew trees which are now aged more than 50 years has been affected by the father of this defendant and is situated within a compact block within a common boundaries and this defendant also effected improvements in the properties. That 1^st defendant, prior to him his father, have been in possession and enjoyment of the properties in R.S. No.184/1B along with X schedule properties of this statement, continuously, openly, peacefully, without interruption adversely with hostile animus to all, including plaintiff, asserting the own right over the same since from 1972 and thus this defendant have perfected title to over items same by adverse possession. The title to the plaintiff or his predecessors if any over the said property once existed has now lost by adverse possession and limitation. Hence the title and possession of the properties in R.S. No.184.1B6 are now vested with this defendant. The plaintiffs or their predecessors in interest never came into possession of the properties in the possession of this defendant at any point of time.

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R.S.A. No. 76 of 2021

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The trial court recorded evidence in this matter.

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Exts.A1 to A14 marked on the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B3 marked on the side of the defendants. CW1 examined as court witness and Exts.C1 and C2 marked as court exhibits.

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Finally the trial court decreed the suit as under:

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In the result,

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This suit is decreed and the defendants shall put the vacant possession of C schedule properties to the plaintiff within 3 months failing which, the plaintiff can recover the property through the process of the court.

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Parties shall suffer their respective costs.

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10. Though, appeal f i led before the Additional District Court-III, Kasaragod, challenging the decree and judgment of the trial court, the Appellate Court concurred the f i nding of the trial court and dismissed the appeal as per judgment dated 28.10.2020 in A.S. No.45/2018.

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While impeaching the concurrent verdicts entered into by the trial court and the Appellate Court by

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R.S.A. No. 76 of 2021

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granting recovery of possession acting on Ext.C1 report and Ext.C2 plan, the learned counsel for the 1^st defendant submitted that the 1^st defendant raised two fold contentions before the trial court. According to him, the 1^st defendant as well as the plaintiff obtained title over Government properties and out of which, the 1^st defendant’s father Sri.Shankara Moolya obtained patta in respect of 2.26 Acres in Re survey No.184/1C as per proceedings No.L.A.52/72/Katukukke and another 0.24 Acres in Re survey No.184/1B5 as per proceedings in L.A.No.46/82/Katukukke. The argument raised by the learned counsel for the 1^st defendant is that, the 1^st defendant’s father continued as tenant in view of ‘preferential Kumki right’ in respect of the properties covered by purchase certificates as well as in the adjacent land including item Nos. 1 and 2 of plaint C schedule properties. It is also submitted that, apart from tenancy over the adjacent land, item Nos. 1 and 2 of plaint C schedule properties, the 1^st defendant raised plea of adverse possession over those items. Therefore, the Courts

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R.S.A. No. 76 of 2021

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below went wrong in negativing the said contentions.

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In paragraph No.13 of the trial court judgment, the trial court considered the claim raised by the 1^st defendant over item Nos. 1 and 2 of plaint C schedule properties and found that the adverse possession claimed by the 1^st defendant not at all established. The trial court found that the evidence given by DW1 to perfect right by adverse possession is as against the evidence given by DW2 who was examined to prove adverse possession.

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According to the trial court DW2 deposed about rubber trees in the disputed item of properties. Whereas, DW1 deposed that no such rubber trees in the said property. The trial court also found that apart from the title deeds relied on by the plaintif f in respect of plaint A to C schedule properties, the plaintif f paid tax in respect of the entire property during the period 2015, 2016 and 2017. Nothing adduced in evidence to show tax payment etc. by the defendants in respect of item Nos. 1 and 2 of plaint C schedule properties, in any manner. Accordingly, the trial court relied on Ext.C2 plan and found that 64.8 cents

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R.S.A. No. 76 of 2021

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comprised in Re survey No.184/1B6 and 6.8 cents in Re survey No.181/5 given red color in Ext.C2 plan are the encroached portion and also 28.7 cents in Re survey No.184/1B4 marked in red color also was encroached portion. The amended Plaint C schedule would tally with the above said description. Accordingly, the trial court granted decree directing the defendants to surrender vacant possession of plaint C schedule properties to the plaintif f .

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14. Though, it is argued by the learned counsel for the 1 st defendant that Exts.C1 and C2 were f i led before impleadment of the 1 st defendant, records do not suggest any impleadment as such. However, as rightly observed by the Appellate Court, the 1 st defendant f i led an objection to the commission report on 02.02.2018. But the Courts below did not f i nd any merit in the objection and f i nally accepted Ext.C2 plan to grant recovery of possession. On perusal of Exts.C1 and C2 along with the objection f i led by the 1 st defendant thereof, no valid reasons stated to upset Exts.C1 and C2, in any manner. Therefore, challenge

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R.S.A. No. 76 of 2021

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against Exts.C1 and C2 was rightly found against by the Courts below.

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15. On perusal of the available materials, it is crystal clear that the plaintif f established title over plaint C schedule properties located in Ext.C2 plan and the claim of ‘preferential Kumki right’ or adverse possession at the instance of the 1 st defendant not at all established.

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16. Therefore, the substantial question of law answered holding that the Courts below did not went wrong in allowing the suit for recovery possession acting on the title deeds and Ext.C2 plan, where the defendants did not succeed either to prove the ‘preferential Kumki right’ or title by adverse possession where the plaintif successfully proved his derivative title over plaint A to C schedule items. Thus, the concurrent verdicts of the trial court as well as the Appellate Court do not require any interference at the hands of this Court.

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17. In the result, this regular second appeal fails and is dismissed accordingly. Consequently, the decree and judgment under challenge stand conf i rmed.

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R.S.A. No. 76 of 2021

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All interlocutory application also stand dismissed and

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the interim stay in executing the decree shall stand

vacated.

Sd/-

A. BADHARUDEEN

JUDGE

Ammu Moolya v. Francis Chacko

Case brief

What is this about?

What did the court decide?

Ammu Moolya v. Francis Chacko

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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