Kerala High Court
Kalathile Veettil Bindu vs Kottakkal Veettil Chandrakala on 17 October, 2024
RSA NO. 215 OF 2024
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2024:KER:77922
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
RSA NO. 215 OF 2024
AGAINST THE JUDGMENT DATED 31.07.2023 IN AS NO.97 OF 2009 OF SUB
COURT, PAYYANNUR
ARISING OUT OF THE JUDGMENT DATED 25.08.2009 IN OS NO.159 OF 2004
OF MUNSIFF COURT, PAYYANNUR
APPELLANT/APPELLANT/DEFENDANT:
KALATHILE VEETTIL BINDU
AGED 50 YEARS
D/O SHYAMALA, P.O. ARAVANCHAL, PERINGOME AMSOM AND DESOM,
TALIPARAMBA TALUK, KANNUR DISTRICT, PIN - 670353
BY ADV V.N.RAMESAN NAMBISAN
RESPONDENT/RESPONDENT/PLAINTIFF
KOTTAKKAL VEETTIL CHANDRAKALA
AGED 54 YEARS
W/O P.V. SASIDHARAN, ARAVANCHAL P.O., PERINGOME AMSOM AND
DESOM, KANNUR DISTRICT, PIN - 670353
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in a suit for injunction is the appellant herein.
The plaintiff filed the suit scheduling plaint
A schedule property is shown as 58.25 cents of land. Plaint B
schedule property is shown as 8.75 Ares of land. According to
the plaintiff, paint B schedule property is a part of plaint A
schedule property. The plaintiff derived plaint A schedule
property as per Ext.A2 document of the year 2000 from Diljith,
who derived the property as per Ext.A1 from one Muhammad
Kunhi. The case of the plaintiff is that the boundaries are not
correctly shown in the document.
2. The defendant opposed the suit prayers by filing a written
statement contending that the defendant is in possession of
43 cents of land as per Document No.56/2009 executed by the
husband of the plaintiff, who obtained property from one
Gopalan as per Document No.303/1996. The said Gopalan
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obtained property from the aforesaid Muhammad Kunhi as per
Ext.A4/X1 of the year 1978. It is also contended that the plaint
schedule property is not identifiable.
3. The Advocate Commissioner filed Exts.C1 to C5 Commission
Reports in the matter. In Ext.C3 plan, the Advocate
Commissioner identified four plots, which are covered by
Exts.A1 & A4.
4. The plaintiff and the defendant do not have any dispute with
respect to plot Nos.I and III. Plot No.I is in the possession of
the plaintiff and plot No.III is in the possession of the
defendant. The dispute with respect to plot No.II, which is
having road frontage on the southern side. Plot Nos.II and III
is having road frontage. Plot No.I & IV are not having road
frontage. Plot No.IV is situated on the back side of plot No.III
and plot No.I is situated on the back side of plot No.II. The
contention of the defendant is that he derived title and
possession over plot No.II & III which is having road
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frontage on the southern side. If the said contention is
accepted, the property of the plaintiff is plot Nos.I & IV which
have no road frontage.
5. Finding that the properties covered by Exts.A1 and X1 having
road frontage, the Trial Court decreed the suit in favour of the
plaintiff. Though the defendant filed appeal before the First
Appellate Court, the First Appellate Court dismissed the appeal
by confirming the judgment and decree of the Trial Court.
6. I heard the learned counsel for the appellant Sri.RamesanV.N.
7. The learned counsel for the appellant contended that the
defendant is in possession of plot No.II & III for the last several
years and without any suit for recovery of possession the claim
of the plaintiff could not have been considered. Since the
plaintiff is claiming title over plot No.II the plaintiff ought to
have sought declaration of title also with respect to the same.
8. Admittedly, the plaintiff and the predecessors of the plaintiff
and the defendant derived the respective properties from a
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common ancestor, i.e., Muhammad Kunhi. The said Muhammad
Kunhi executed Exts.A1 and A4/X1 on the same day, i.e.,
14.06.1978. In both the documents the eastern side is shown
as road. The extent of the property is also same, i.e., 53 cents.
In both the documents, the sale consideration is also the same
i.e. Rs.300/-. The Advocate Commissioner in Ext.C3 found that
the road is situated on the side of the properties. It indicates
that the boundaries are mistakenly stated in both documents,
i.e., the road lying on the southern side is mistakenly shown on
the eastern side. One thing which is clear that both the
properties are having road frontage on the same side. If the
contention of the defendant is accepted, the plaintiff will have
plot Nos.I & IV which do not have road frontage. The
defendant's residence is situated in plot No.III, which is having
road frontage. There is no dispute with regard to the identity
of plot No.III. In such a case, the property of the plaintiff can
only be plot Nos.I & II. There is nothing on record to prove that
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the defendant is in possession of plot No.II. Since the identity
of the property can be ascertained with the details included in
the title deed with reference to Ext.C3 plan, there is no
requirement of any adjudication of title to the property. There
is nothing on record to show that the defendant is in possession
of Plot NoII. The Trial Court and the First Appellate Court
concurrently found in favour of the plaintiff. I do not find any
reason to interfere with the judgments and decrees of the Trial
Court as well as the First Appellate Court. No substantial
question of law arises in the matter. Hence, the appeal is
dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
shg
