IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 401 of 2009()
1. MARY JAMES, W/O. ADAI JAMES,
... Petitioner
2. SUJA JAMES, AGED 45, W/O. K.V.SUNNY,
Vs
1. SINDHU @ SUJI, W/O. GIGI GEORGE,
... Respondent
2. ADAIMARIAM SAJI @ PONNU(MINOR),D/O.SAJI,
For Petitioner :SRI.S.SREEKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :29/05/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 401 of 2009
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Dated this the 29th day of May, 2009
JUDGMENT
. This Second Appeal is directed against the judgment and decree in
A.S. 99/2007 on the file of the District Court, Ernakulam which arose from
O.S. 22/2005 on the file of of the Sub Court Muvattupuzha. The parties
hereinafter referred to as defendants/appellants and plaintiffs/respondents
as arrayed in the Suit.
2. Defendants 1 and 2 in the suit are the father-in-law and
mother-in-law of the 1st plaintiff respectively. The 1st plaintiff is the wife of
late Saji who is the son of the defendants The Saji has got two children
including the 2nd plaintiff. The said Saji died in a road traffic accident on
31.5.1996. The plaintiffs are the legal heirs of the deceased Saji. The
plaint schedule property was purchased in the name of late Saji as per sale
deed No. 68/1977 and 69/1977 of Muvattupuzha S.R.O. At the time of
marriage and also after the marriage Saji was in possession and
enjoyment of the plaint schedule property. It is contended by the plaintiffs
that after the death of Saji the defendants ill-treated the plaintiffs and
consequently they took shelter in the paternal house of the 1st plaintiff.
Thereafter the defendants have took the yield from the plaint schedule
property and have continued in possession and enjoyment of the same.
In the circumstances the suit was filed by the plaintiffs for declaration of
R.S.A. No. 401 of 2009 -2-
their title over the plaint schedule property and for recovery of possession
of the same with mesne profits.
3. In the written statement filed by the defendants the
averments in the plaint were denied. It was contended that the plaint
schedule property was never been in the possession of late Saji.
According to them Saji never owned , possessed , cultivated or enjoyed
the plaint schedule property . The suit was resisted for other reasons
also.
4. The trial court considered the issues involved in the suit on the
basis of the evidence let in by the parties. Exts.A1and A2 are the
certified copies of the sale deed Nos. 68/1977 and 69/1977 ( originals are
Exts.B9 and B10 ) in respect of the plaint schedule property. Exts. A1 and
A2 reveals that the plaint schedule property stands in the name of late
Saji and the 1st defendant as guardian.
5. The trial court discussed all the factual and legal questions
involved in the suit and concluded rightly that the contentions of the
defendants that the transaction as per Exts. A1 and A2 was a benami
transaction and that the late Saji will not get any manner of right over the
plaint schedule property, were not correct . The trial court noticed the
facts that the execution of Ext.A3 power of attorney by the deceased Saji in
favour of the 2nd defendant and his reiteration of his title and possession
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over the plaint schedule property by virtue of Ext.A1 and A2 in Ext.A3. The
trial court also noticed that the 1st defendant was an attesting witness to
Ext. A3.
. 6. After considering the oral and documentary evidence in the
right perspective the trial court concluded that the plaintiffs are entitled to
recover possession of the plaint schedule property from the defendants on
the strength of their title and the plaintiffs are also allowed to recover
mesne profits at the rate of Rs. 4,000/- per annum from the date of the
suit till recovery of possession or for three years from the date of decree,
whichever first occurs from the defendants and their assets.
7. The defendants in the suit re-agitated all the contentions
before the lower appellate Court. The lower appellate court also
elaborately discussed the facts, materials and evidence and concurred
with the trial court’s view.
8. This appeal is filed challenging the concurrent findings of the
courts below. I am of the view that the findings of the courts below are
solely based on the facts and evidence. I find no reasons to interfere with
the matter and to invoke Section 100 of the C.P.C. This appeal fails and
accordingly dismissed.
(HARUN-UL-RASHID, JUDGE)
es.
HARUN-UL-RASHID, J.
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R.S.A.No. 401 of 2009
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JUDGMENT
29th May, 2009