Kunhiraman vs Dhanalakshmi
2021 Latest Caselaw 5005 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                          RFA.No.473 OF 2016

    AGAINST THE JUDGMENT IN OS NO.325/2012 DATED 15-02-2016 OF
              SUBORDINATE JUDGE'S COURT, OTTAPPALAM.


APPELLANT/PLAINTIFF:

             KUNHIRAMAN,
             AGED 68 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA, THANIKUNNU AMSOM
             DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

             BY ADV. SRI.P.JAYARAM

RESPONDENTS/DEFENDANTS:

      1      DHANALAKSHMI,
             AGED 71 YEARS,
             D/O. ELEDATH LATE PADMAVATHY AMMA, THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR, OTTAPALAM TALUK,
             PALAKKAD DISTRICT-679 515.

      2      VASUDEVAN,
             AGED 64 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.

      3      VIJAYAKUMARAN,
             AGED 61 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.

      4      UNNIKRISHNAN,
             AGED 54 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.

      5      MURALEEDHARAN,
             AGED 52 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.
 RFA.No.473/2016                2


      6      KOCHUGOVINDAN,
             AGED 49 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.

      7      SASIDHARAN,
             AGED 46 YEARS,
             S/O. ELEDATH LATE PADMAVATHY AMMA,THANIKUNNU AMSOM
             DESOM, P.O.KADAMBUR,OTTAPALAM TALUK, PALAKKAD
             DISTRICT-679 515.

             R2-R7 BY ADVS. SRI.ARUN MATHEW VADAKKAN
                            SRI.SANTHEEP ANKARATH

     THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA.No.473/2016                          3




                                  JUDGMENT

Dated this the 11th day of February, 2021

This appeal is filed against judgment and decree dated

15.02.2016 in O.S No.325/2012 on the files of Subordinate Judge's

Court, Ottappalam. The decree was taken up in challenge by the

plaintiff in the suit. The contention of the learned counsel for the

appellant was that reservation in respect of Item No.6 of plaint B

schedule was claimed by him for the reason that he had spent huge

amount for the repair and the maintenance of item No.6 building

with the consent of the other co-owners and it is the sole place of

residence, he has.

2. In paragraph 7 of the impugned judgment, the court

below has observed as follows;

7. There is no dispute to the fact that the plaint schedule property is B schedule to the partition deed. There is also no dispute to the fact that the plaintiff and defendants are entitled to get 1/8 share each. The only dispute is with regard to the reservation claimed by the plaintiff over the house in the plaint schedule property. It is true that the defendants have not raised any claim for reservation of the house in the plaint schedule property. But that does not mean that the plaintiff is entitled to get the reservation. According to the plaintiff, he has no other house. He and his family were residing in the house in the plaint schedule property.

Thereafter, on 29.02.2012, the defendants have locked the house. The plaintiff has spent huge amount for the maintenance and repair of the house. It was also agreed by the co-owners that the house in item no.6 of the plaint B schedule shall be set apart to the share of the plaintiff. The plaintiff would contend that the defendants have got their own houses. Therefore, the plaintiff is entitled to get reservation of the house to his share. The defendants have disputed the same. According to the defendants, the plaintiff and his family were not residing in the house in the plaint schedule property. Except the 7th defendant, no other defendants has got their own houses. The plaintiff has not spent any amount for the maintenance or repair of the house. There was no undertaking by the co-owners that the house in the plaint schedule property will be given to the plaintiff. The plaintiff is not entitled to get any reservation. It is admitted by PW1 that at the time of the filing of the suit he was not residing in the house. It is his admitted case that he is residing with his family at Ottapalam. He would also admit that he was residing at the residence at Ambalappara. At the same time, he would add that it was not a permanent residence. It was the house of his wife. It is come out in evidence that the plaintiff has no children. DW1 would admit that the plaintiff was not residing there. At the same time, he used to come and visit the property. PW1 would say that there is no document to show that he was residing in the house in the plaint schedule property. It is also come out in evidence that at the time of the filing of the suit the house was locked. The report by the commissioner would go to show that at the time of the inspection by the commissioner, the plaintiff had no keys with him. At the same time he informed the commissioner that he has forgotten to take the keys and he broke open the lock. This is contrary to what has been pleaded by the plaintiff. It is admitted by the plaintiff in the plaint itself that the house has been locked by the defendants. Inspite of that by sheer show of force he broke opened the lock of the house in the presence of an officer of the court and by

taking advantage of the presence of the advocate commissioner, he has done that. The commissioner has not found out anything to suggest that the plaintiff was residing in the house. The only thing the commissioner has reported that the plaintiff has shown his medicine from the fridge in the house. At the same time, PW1 has admitted that he has not shown any prescription to the commissioner. So, the statement by the commissioner that it is the medicine of the plaintiff cannot be accepted as a piece of evidence to show that the plaintiff was residing in the house. It is also important to note that it is the admitted case of the defendants that the plaintiff used to got to the plaint schedule property. At the same time, they would also contend that the plaintiff and his friends used to consume alcohol in the house in the plaint schedule property by misusing the same. According to the defendants, that forced them to lock the house. If really the plaintiff and family were residing in the house in the plaint schedule property till 29.09.2012 as claimed by PW1 there would be materials to suggest the same. There is absolutely nothing to suggest that the plaintiff has ever used the plaint schedule property. On the other hand, the commissioner would say that there was no signs of any human use of the plaint schedule property in the near future. So, the contention that the plaintiff has been residing the plaint schedule property till September 2012 cannot be accepted."

3. Therefore, it has come out in evidence before the court

below that the plaintiff had never been a resident of item No.6

building of plaint schedule property. The Advocate Commissioner

had also reported to the Court that he had not noticed any

indications suggestive of human use of item No.6 in the near past.

Though the plaintiff attempted to establish that he had resided in

item No.6 on the basis of some medicines recovered from the Fridge

kept in the building, he failed to produce prescription issued by a

medical practitioner with reference to those. Moreover, the specific

say of the plaintiff was that he is possessing a key of item No.6, but

failed to bring it, stands contradicted when he himself says further

that item No.6 has been locked by the defendant. Evidence was also

not let in to establish that he had spent huge amount for the

maintenance of the building.

4. In the above circumstances, the court below discarded the

contention of the plaintiff that he had been residing in the plaint

schedule property till September, 2012 and thereby declined to

grant his prayer for reservations of item No.6 of the plaint schedule

property in his favour. Even if the appeal is admitted and heard, it

is impossible to take a view in favour of the plaintiff on his claim of

reservation on item No.6, as the evidence on record is not

supportive of the claim. There is absolutely no reason warranting

appreciation of evidence further.

In the result, appeal is dismissed in limine.

Sd/-

MARY JOSEPH

JUDGE

JJ