Kerala High Court
Varghese Boban vs Athira Associates on 3 September, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA,
1946
RSA NO. 319 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 22.02.2024 IN
AS NO.10 OF 2020 OF ADDITIONAL SUB COURT, IRINJALAKUDA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.10.2018
IN OS NO.1612 OF 2015 OF MUNSIFF COURT, KODUNGALLUR
APPELLANT/APPELLANT/DEFENDANT:
VARGHESE BOBAN
AGED 62 YEARS
S/O.ALAPPATT CHACKO,
ALAPPATT HOUSE NEAR.OLD BOAT JETTY METHALA
VILLAGE,
KODUNGALLUR TALUK,
THRISSUR DIST., PIN - 680669
BY ADVS.
K.S.RAJESH
M.SHAJU PURUSHOTHAMAN
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RESPONDENT/RESPONDENT/PLAINTIFF
ATHIRA ASSOCIATES
PALLIPPURAM, MURI PALLIPPURAM DESOM & VILLAGE
KOCHI TALUK,
REPRESENTED BY MANAGING PARTNER,
ANTONY, AGED 55, S/O.RANDUTHAIKKAL JOSEPH
PALLIPPURAM MURI, PALLIPPURARM VILLAGE,
KOCHI TALUK. ERNAKULAM DIST.,
PIN - 683515
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 03.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in a suit for recovery of possession and
permanent prohibitory injunction is the appellant in this
Regular Second Appeal. The respondent-plaintiff filed the
suit for recovery of possession of the plaint B schedule
property. Plaint B schedule includes 2 Cents of land and the
residential building therein. It is part of Plaint A schedule
property purchased by the plaintiff as per Ext.A3 document
from one Shammi Job.
2. Shammi job derived the property as per Ext.A2 executed by
one Ishi Sebastian. Ishi Sebstain and Shammi Job are the
sisters of the defendant. The property originally belonged to
the father of the defendant, Chacko as per Document
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Nos.1635/1987 and 346/1972 of Kodungallur SRO. After
the death of the father, the property was devolved upon his
wife and children including the aforesaid Ishi Sebastian,
Shemmi Job and the defendant. The defendant executed
Ext.A1 document releasing his right over the property to
Ishi Sebastian. Other legal heirs of Chacko also released
their rights in favour of Ishi Sebastian as per various
documents. Thereafter Ishi Sebastian executed Ext.A2 in
favour of Shemmi Job.
3. The suit was contested by the defendant filing written
statement admitting that the property belongs to his father
Chacko but contending that the documents executed in
favour of Ishi Sebastian were forged and he is still having
right over the property as the legal heir of Chacko. Two of
the sisters namely Thankam Lonappan and Molly Jolly
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have filed O.S.No.1950/2013 before the Munsiff's Court
Kodungallur for partition of the property making all other
legal heirs and the plaintiff herein as the defendants
contending that the documents executed by them are
forged and the matter is pending consideration before the
Court. The defendant is occupying the plaint B schedule
property as the legal heir of Chacko. He also contended
that he has been occupying the plaint B schedule property
by way of license and he has made permanent
constructions therein making the license irrevocable under
Section 60(b) of the Easement Act.
4. The Trial Court decreed the suit directing the defendants to
give vacant possession of plaint B schedule property and
the house situated therein within one month to the plaintiff.
Though the defendant filed Appeal before the First
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Appellate Court, the First Appellate Court dismissed the
Appeal confirming the judgment and decree of the Trial
Court.
5. I heard the learned counsel for the appellant
Sri.K.S.Rajesh.
6. The learned counsel advanced arguments contending that
the defendant is entitled to continue possession of the
plaint B schedule property on the strength of irrevocable
license which is not properly considered by the Trial Court
as well as the First Appellate Court.
7. On going through the Written Statement of the defendant
made available by the counsel, it is seen that the defendant
is disputing the title of the plaintiff over the plaint B
schedule property by stating that the prior documents in
favour of the predecessor-in-interest of the plaintiff
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executed by him and his siblings are forged. He made
contentions with reference to O.S.No.1950/2013 filed by
two of his sisters. But, it can be seen from the impugned
judgment that the defendant executed Ext.A1 document in
favour of his sister releasing his right over plaint A schedule
property, which includes plaint B schedule property. He has
not challenged the said document. He could not get any
benefit out of the suit filed by his sisters. When the
defendant is disputing the title of the plaintiff and his
predecessors, he cannot maintain an alternate contention
that he is entitled to continue in plaint B schedule property
on the strength of irrevocable license. There could not be
any license. He has not produced any evidence to show
that he has made permanent constructions.
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8. In that view of the above, there is nothing to interfere with
the impugned judgment. The Regular Second Appeal is
accordingly dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
hmh
