IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 649 of 2007()
1. ESAKKI AMMA SARASWATHY, AGED 61,
... Petitioner
Vs
1. THANKAMONI, D/O.ESAKKI AMMA, AGED 48,
... Respondent
2. OMANA, D/O.ESAKKI AMMA, AGED 46 YEARS,
3. CHELLAPPAN CHETTIAR KRISHNAN CHETTIAR,
4. ESAKKI AMMA PONNAMMA, AGED 56 YEARS,
5. CHELLAPPAN CHETTIAR ARJUNAN CHETTIAR,
6. ESAKKI AMMA RAJAMMA AGED 52 YEARS,
7. ESAKKI AMMA MEENAKSHY, AGED 50 YEARS,
8. CHANDRAN, S/O.CHELLAMMA, AGED 35 YEARS,
9. THANKAMANI, D/O.CHELLAMMA, AGED 33 YEARS
10. THANKACHAN, S/O.CHELLAMMA, AGED 31 YEARS
For Petitioner :SRI.G.P.SHINOD
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.Nos. 649 & 650 OF 2007
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DATED THIS THE 24th DAY OF JULY, 2007
JUDGMENT
Appellant is the plaintiff in O.S.108 of 1986 and first
defendant in O.S.540 of 1986, instituted by respondents 1 and 2
the defendants in O.S.108 of 1996. O.S.108 of 1996 was filed
seeking a decree for partition and O.S.540 of 1986 was filed
seeking a decree for declaration of title and possession of the
plaint schedule property. The case of appellant was that plaint
schedule property originally belonged to Late Chellappan
Chettiar and first respondent is his wife and on the death of
Chellappan Chettiar it devolved on first respondent appellant
and respondents 2 to 9 and they are in the joint possession and
enjoyment of the property and while Chellappan Chettiar was
alive he obtained kudikidappu right as per order in O.A.2608/70
and that right devolved on his wife and children and therefore
plaint schedule property is to be divided into ten equal shares
and one such share is to be alloted to the appellant ignoring the
alienations made. Respondents 1 to 3 in their written statement
contended that deceased Chellappan Chettiar was a
kudikidappukaran in the plaint schedule property and it was he
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who constructed the building and he purchased the kudikidappu
right as per the purchase certificate granted in O.A.2608/70 and
respondents 2 and 3 obtained title to the property as per Ext.A2
sale deed dated 21.12.1970 executed by Chellappan Chettiar in
favour of first respondent and therefore respondents 2 and 3 are
the absolute owners of the property and the property was
mutated in their name and it is not in the joint possession of the
appellant or other children of deceased Chellappan Chettiar and
therefore appellant is not entitled to the decree for partition
sought for. In O.S.540 of 1986, respondents 2 and 3 sought a
decree for declaration of their title to the plaint schedule
property under Ext.A3 sale deed executed by Chellappan
Chettiar in their favour. It was contended that appellant is in
possession of two rooms as permitted by Chellappan Chettiar
and she is in permissive occupation of the room and as
respondents 2 and 3 have title to the property, they are entitled
to get a decree for declaration of their title and have a
mandatory injunction.
2. Learned Munsiff jointly tried both the suits. On the
evidence of Pws 1 to 3, DW1 and Exts.A1 to A4, learned Munsiff
found that under Ext.A1 the kudikidappu right was purchased by
Chellappan Chettiar and Ext.A1 will not enure to the benefit of
his wife and children and Chellappan Chettiar under Ext.A2 sold
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the property in favour of respondents 2 and 2 and therefore
respondents 2 and 3 have title to the plaint schedule property.
Learned Munsiff declared the title and also granted a decree for
injunction restraining appellants and other defendants from
interfering with their possession. A decree for mandatory
injunction was also granted directing appellant and other
defendants to put respondents 2 and 3 in possession of the
building in their possession finding that they are only in
permissive possession of the property. Consequently O.S.108 of
1986 was dismissed. Appellant challenged the decree and
judgment in O.S.108 of 1986 in A.S.281 of 1997 and the decree
and judgment in O.S.540 of 1986 in A.S.282 of 1997 before
District Court, Thiruvananthapuram. Learned Additional
District Judge, on reappreciation of evidence, confirmed the
findings of learned Munsiff and dismissed both the appeals. It is
challenged in these second appeals.
3. R.S.A.649 of 2007 is filed against the concurrent decree
and judgment in O.S.108 of 1986 and R.S.A.650 of 2007 is filed
against the concurrent decree and judgment in O.S. 540 of
1986. Learned counsel appearing for the appellant was heard.
The argument of the learned counsel is that the courts below on
the evidence should have found that Ext.A1 purchase certificate
was obtained by Chellappan Chettiar not on his independent
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right but for the family and therefore Ext.A1 shall enure the
benefit of all family members including the appellant and
therefore under Ext.A2 sale deed respondents 2 and 3 did not
derive independent title and hence the courts below should have
granted a preliminary decree dividing the property as it devolved
on the legal heirs on the death of Chellappan Chettiar . Learned
counsel also argued that in any case when appellant is found to
be in possession of a portion of the building exclusively and the
only case alleged by respondents 2 and 3 was that they were
permitted by Chellappan Chettiar to occupy, the occupation
thereafter cannot be tagged on after the right obtained by
respondents 2 and 3 under Ext.A2 and if at all the remedy is only
to seek a decree for recovery of possession and suit for
mandatory injunction is not sustainable.
4. On hearing learned counsel appearing for appellant, I do
not find any substantial question of law involved in the appeals.
As far as Ext.A1 certificate of purchase whereunder the
kudikidappu right was purchased by Chellappan Chettiar is
concerned, there is no evidence to prove that kudikidappu right
purchased was not that of Chellappan Chettiar but that of the
family. Courts below, on appreciation of evidence, found that it
was Chellappan Chettiar who was the kudikidappukaran and
under Ext.A1, the kudikidappu right was purchased by
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Chellappan Chettiar . During the lifetime of Chellappan Chettiar
himself, under Ext.A2 he transferred his rights in favour of
respondents 2 and 3. In such circumstances, finding of courts
below that Ext.A1 will not enure to the benefit of appellant or
other legal heirs of Chellappan Chettiar, is correct and appellant
is not entitled to claim a decree for partition, as if the property
belonged to Chellappan Chettiar, when he died. It is more so
when under Ext.A2, Chellappan Chettiar earlier transferred the
property in favour of respondents 2 and 3. Therefore courts
below rightly dismissed O.S.108 of 1986.
5. The argument of learned counsel appearing for
appellant is that as appellent is found to be in exclusive
possession of a portion of the building, without seeking a decree
for recovery of possession, courts below should not have
granted a decree for mandatory injunction. The argument is that
what was contended by respondents 2 and 3 was that appellant
was permitted by Chellappan Chettiar, the father to occupy it
and if at all there was a permission, it cannot be tagged on with
the title obtained by respondents 2 and 3 and therefore they
should have filed a suit for recovery of possession.
6. The appellant instituted O.S.108 of 1986 seeking a
decree for partition of the entire property including the building
for which a decree for recovery of possession was granted, on
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the contention that she is in joint possession of the property
along with respondents 2 and 3. There was no case that she was
in exclusive possession of the property as is now canvassed.
Therefore the legal position is that her possession can only be a
permissive one as found by the courts below. If that be the case,
the relief granted by courts below for mandatory injunction is
perfectly legal and warrants no interference.
7. As no substantial question of law is involved in the
appeals, appeals are dismissed. But in view of the fact that
appellant has been residing in the building, she is granted three
months time from today to surrender the vacant possession of
the building.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-