IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 980 of 2004()
1. VEERAN, AGED 90 YEARS,
... Petitioner
Vs
1. GOVINDAN,
... Respondent
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/12/2010
O R D E R
P.S.GOPINATHAN, J.
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R.S.A.No.980 OF 2004
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Dated this the 23rd day of December, 2010
J U D G M E N T
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The Second Appeal was filed by the plaintiff in
O.S.568/1989 on the file of the Munsiff’s Court, Ottappalam.
The suit was filed seeking a decree for recovery of possession of
the plaint schedule property on the basis of his title. Pending
appeal, the appellant died. The defendant is none other than
the son of the plaintiff. Late plaintiff contended that he had
obtained the plaint schedule property under an oral lease and
subsequently he purchased jenmam right by virtue of Ext.A1
purchase certificate issued from the Land Tribunal
Sreekrishnapuram. The defendant contended that the property
belonged to Thrikkadeeri Mana and under Ext.B1 partition it
was set apart to the share of Purazhi Tharakan from whom he
obtained the same by Ext.B3 assignment. After raising the
issues, the parties were sent for trial. On the side of the
plaintiff, PWs 1 to 4 were examined and Exts.A1 to A4 were
marked. The defendant was examined as DW1 and Exts.B1 to
B6 were marked. The trial court arrived at a finding that Ext.A1
R.S.A.No.980/2004 2
purchase certificate was obtained by Veeran, s/o. Krishnan and
the plaintiff is Veeran, s/o. Raman. Discussing the evidence in
detail, the trial court arrived at a finding that the plaintiff had
not succeeded to establish his title over the plaint schedule
property. Consequently, he was non suited. In appeal, as
A.S.No.7/1993, the above judgment and decree was confirmed.
Now the Second Appeal.
2. The following are the questions of law formulated in
the appeal memorandum.
“i) Whether on the facts and
circumstances of the case and in the light of
Ext.A4 and A1 documents and the evidence of
PWs 1to 4 the courts below are justified in
holding that the plaintiff has no valid title?
ii) Whether the courts can held that the
defendant has a more probable case than the
plaintiff only on the light of Ext.B4?
iii) Whether the courts below are legally
justified in giving wide significance to Ext.B4
document?
iv) Whether the courts below had properly
considered the question of facts in its merit
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and whether it is justified upon facts and
circumstances of the case?”
3. On the death of the appellant, three of his children
were impleaded as additional appellants 2 to 4. Now, even if, the
case of the deceased appellant is taken into true, the additional
appellants 2 to 4 are not entitled to a decree for recovery of
possession, because on death of the original plaintiff the
property would devolve upon the respondent also. So, no way
the respondent could be evicted. It is submitted by the learned
counsel for the appellant that the deceased appellant had
executed a Will in favour of the additional appellants 2 to 4. The
original Will itself was produced. However, I find that there is
no mention in the Will about the plaint schedule properties.
Further more, the execution of the Will is yet to be proved.
4. In the above circumstance, I find no reason to disturb
the decree and judgment impugned. Consequently, the appeal is
dismissed. The issue of title is left open. The additional
appellants would be at liberty to establish their right, if any,
obtained by virtue of the Will produced over the plaint schedule
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properties and seek appropriate remedies in the event they have
got any cause of action and the rights obtained by succession or
Will. The original Will produced may be returned to the
appellant. No order as to costs.
(P.S.GOPINATHAN, JUDGE)
ps