Janaki vs Omana
2024 Latest Caselaw 23018 Ker

Kerala High Court

Janaki vs Omana on 1 August, 2024

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                        PRESENT


                    THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM


             THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946


                                  RSA NO. 390 OF 2024


 AGAINST THE JUDGMENT DATED 26.03.2024 IN AS NO.203 OF 2019 OF ADDITIONAL DISTRICT

                                  COURT III, PALAKKAD

  ARISING OUT OF THE JUDGMENT DATED 30.08.2019 IN OS NO.618 OF 2011 OF ADDITIONAL

                              MUNSIFF COURT, PALAKKAD


APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S.:

      1      JANAKI
             AGED 81 YEARS
             W/O. A.R.RAMANKUTTY (LATE), AMBALAPARAMBU, KODUNTHIRAPULLY, PIRAYIRI
             VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

      2      SATHYANANDAN
             AGED 58 YEARS
             S/O. A.R.RAMANKUTTY (LATE), AMBALAPARAMBU, KODUNTHIRAPULLY, PIRAYIRI
             VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

      3      PANKAJAM
             AGED 53 YEARS
             D/O. A.R.RAMANKUTTY (LATE), AMBALAPARAMBU, KODUNTHIRAPULLY, PIRAYIRI
             VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

      4      SASIKALA
             AGED 49 YEARS
             D/O. A.R.RAMANKUTTY (LATE), AMBALAPARAMBU, KODUNTHIRAPULLY, PIRAYIRI
             VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

      5      K.V.PARASURAMAN
             AGED 65 YEARS
             S/O VENKITAGIRI IYER (LATE), KODUNTHIRAPULLY GRAMAM, KODUNTHIRAPULLY,
             PIRAYIRI VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004


             BY ADVS.
             MANU VYASAN PETER
             P.B.KRISHNAN (SR.)
             P.B.SUBRAMANYAN
             SABU GEORGE
             B.ANUSREE
 R.S.A.No.390/2024

                                      2



RESPONDENTS/RESPONDENTS IN A.S./PLAINTIFFS IN O.S.:

     1      OMANA
            W/O. A.R.APPUKUTTAN (LATE) AMBALAPARAMBU, KODUNTHIRAPULLY,
            PIRAYIRI VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

     2      JITHESH
            A.R.APPUKUTTAN (LATE) AMBALAPARAMBU, KODUNTHIRAPULLY, PIRAYIRI
            VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004

     3      SINDHU
            D/O. . A.R.APPUKUTTAN (LATE) AMBALAPARAMBU, KODUNTHIRAPULLY,
            PIRAYIRI VILLAGE, PALAKKAD TALUK & DISTRICT, PIN - 679004


      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2024,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.S.A.No.390/2024

                                 3




                            JUDGMENT

1. The defendants in a suit for recovery of possession are the

appellants herein.

2. The parties are referred according to their status before the

trial court.

3. The plaintiffs filed the suit for recovery of possession of the

Plaint Schedule property of 3 cents with the contentions: The

Plaint Schedule property it is a part of 38 cents in A schedule

item No.7 of Ext.A1 Partition Deed. By Ext.A1 Partition Deed,

the property of the husband of the first plaintiff and the father

of the plaintiffs 2 and 3 A.R.Appukuttan derived item No.7 in A

schedule. On the death of Appukuttan, the said item No.7 in A

schedule in Ext.A1 devolved upon the plaintiffs. In the year

1990, a new road was constructed in east-west by dividing the

38 cents of property into two plots; one plot on the northern

side and the other plot on the southern side. In 1994,

Appukuttan sold 5½ cents of property to Murukan, which is

the eastern portion of the southern plot. The plaint schedule

property of 3 cents is on the western portion of the southern

plot. The defendants are the legal heirs of one Ramankutty

who had demanded Appukuttan for permission to use the

plaint schedule property as a threshing floor. When

Appukuttan did not accede to the demand, Ramankutty and his

wife, the first defendant, tried to trespass into the plaint

schedule property. Thereupon, Appukuttan filed

O.S.No.671/2000 before the Munsiff Court, Palakkad, for a

permanent prohibitory injunction. The said suit was dismissed

and the appeal was also dismissed. Thereafter the defendants

trespassed into the plaint schedule property and hence the

present suit for recovery of the plaint schedule property is

filed.

4. The defendants opposed the prayers in the suit, contending

that the description of the plaint schedule property is not

correct. They obtained the above three cents for residential

purposes from Kesavapattar about 60 years back and they

have been using the same as threshing floor. In the year 1998,

Jenmom right to the property was purchased from the 5 th

defendant as per Sale Deed No.5294/1998 of SRO Palakkad.

The defendants are in possession, ownership and enjoyment of

the plaint schedule property. In the judgment in

O.S.No.671/2000 filed by Appukuttan, it was found that the

plaint schedule property belonged to the defendants. The suit

is barred by limitation. The suit is barred by res judicata in the

light of the judgment and decree in O.S.No.671/2000.

5. On the side of the plaintiffs, the first plaintiff was examined as

PW1 and Exts.A1 to A3 were marked. On the side of the

defendants, Village Officer was examined as DW1 and Exts.B1

to B8 were marked. The Commission Reports were marked as

Exts.C1 and C1(a). The extract of the Basic Tax Register

issued by the Village Officer was marked as Ext.X1.

6. The Trial court decreed the suit allowing recovery of

possession of the plaint schedule property from the defendants

on the strength of the plaintiffs' title. Though the defendants

filed an appeal before the First Appellate Court, the same was

dismissed.

7. This Regular Second Appeal is filed by defendants challenging

the judgment and decree passed by the trial court, which is

confirmed by the first appellate court.

8. I heard the learned Senior Counsel for the appellant

Sri. S.V. Balakrishna Iyer, as instructed by Advocate

Sri.Manu Vyasan Peter.

9. The learned Senior Counsel submitted that since the suit is for

recovery of possession based on title, the title proved by the

plaintiff is quite insufficient to grant a decree. He pointed out

that the properties identified in Ext.C1 and C1(a) do not tally

with the descriptions in Ext.A1. He also pointed out that in

Ext.A1, the derivation of the property is not stated. Mere

production of Ext.A1 document, which is a Partition Deed, is

not sufficient to prove the title.

10. Here is a case where both parties are claiming title over the

plaint schedule property having an extent of 3 cents. The

plaintiffs derived 38 cents of land as item No.7 in A schedule

in Ext.A1. The Advocate Commissioner has identified the

entire 38 cents in Exts.C1 and C1(a) as plot ABCDEF. The

defendants do not have a case that the plaintiffs did not derive

the said 38 cents as per Ext.A1 partition deed. The Advocate

Commissioner correctly found out the plaint schedule property

having an extent of 3 cents, which is the western portion of

the plot lying on the southern side of the road. The eastern

side of the said plot was admittedly sold by Appukuttan to one

Murukan. So, even though the document by which the

predecessors of the plaintiffs derived title over the plaint

schedule property is not produced, in view of the pleadings

and evidence adduced by the parties , I am of the view that

Ext.A1 is sufficient to prove the title of the plaintiffs over the

plaint schedule property. Though the defendants claimed title

over the plaint schedule property by producing Ext.B8 Jenmom

Assignment Deed, they did not take any steps to identify the

property covered by Ext.B8 document. The extent of the

property in Ext.B8 is 8 cents, whereas, the plaint schedule

property is having only an extent of 3 cents. The

Commissioner has not found any land in excess of 3 cents

while identifying the plaint schedule property. Even if the

defendants have derived 8 cents as per Ext.B8, the defendants

ought to have identified the 3 cents out of 8 cents covered by

Ext.B8. No attempt was made to that effect. It is not clear

whether Ext.B8 relates to the plaint schedule property. The

defendants did not mount to the box to explain the

circumstances as to how they derived the plaint schedule

property on the basis of Ext.B8 and the location of the plaint

schedule property in Ext.B8 property. Though the defendants

produced Ext.B1 Possession Certificate issued by DW1, DW1

admitted that that mutation of the property is not effected;

that he has issued Ext.B1 Possession Certificate without

verifying the title deed; and that Ext.B1 is issued with respect

to the land which the defendants showed to be in their

possession. Since this is a case of rival title with respect to the

plaint schedule property, the plaintiffs have sufficiently

discharged their burden to prove the title over the plaint

schedule property which is identified by the Advocate

Commissioner, whereas, the defendants could not prove the

title over the plaint schedule property.

11. In view of the aforesaid discussion, the judgment passed by

the Trial court, which is confirmed by the Appellate Court,

does not suffer from any illegality and the appeal is

accordingly dismissed.

Sd/-

M.A.ABDUL HAKHIM JUDGE

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