IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 74 of 2008()
1. VIJAYAN, PLACHERIL VEEDU,
... Petitioner
Vs
1. PURUSHOTHAMAN, AGED 71,
... Respondent
2. RAJESWARI CHANDRAN, 35 YEARS,
3. CHANDRALEKHA GOPINATHAN,
4. BINDU SURESH, NALUKANDATHIL,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.N.GOVINDAN NAIR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/02/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.74 OF 2008
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Dated this the 8th day of February 2011
JUDGMENT
Plaintiff is the appellant. Suit was one for declaration
of title and for injunction. Both the courts below concurrently held
that the plaintiff is not entitled to the reliefs canvassed for and he
was nonsuited. Feeling aggrieved, he has preferred this Second
Appeal.
2. Suit property having an extent of 25 cents, a paddy land,
admittedly belonged to Karutha Kunju, grand father of the plaintiff
and also the defendant. He had executed Ext.A7 gift deed by
which the property was gifted to his two children Padmanabhan
and Kochu Pennu. Plaintiff is the son of Padmanabhan and the
defendant, the daughter of Kochu Pennu. The case set up by the
plaintiff is that after the death of Karutha Kunju, his father,
Padmanabhan, was holding the property exclusively denying the
title of Kochu Pennu openly and with hostile animus, and by such
continuous possession for the statutory period, there was ouster,
and title, if any, of Kochu Pennu over the property had been
extinguished. On that basis, the suit claim for declaration and
R.S.A No.74 OF 2008 – 2 –
injunction was laid as against the defendant. The defendant,
resisting the suit claim contended that ever since Ext.A7 gift
deed, the property continued under joint possession of
Padmanabhan and Kochu Pennu, and that the latter was taken
care of by the former, her brother, till her death in 1985. With the
knowledge of Padmanabhan, Kochu Pennu had executed Ext.B1
gift deed by which the southen 12.5 cents in the property had
been gifted in favour of the defendant and she is in possession
and enjoyment of the same as its title holder was her case. On
the materials placed by both sides, which consisted of PW1 to
PW3 and Exts. A1 to A7 for the plaintiff and DW1 and DW2 and
Exts.B1 and B2 series for the defendant, the trial court found that
the case set up by the plaintiff to have declaration of his title
built upon the ouster of rights of the other co-owner had not been
proved by any worth mentioning material. The revenue receipts
produced by him evidencing payment of charges, which in fact
was banked upon to contend that the other co-owner, Kochu
Pennu, had not exercised any right over the suit property during
her life time, was found of insignificant value as payment of
revenue charges by one co-owner could be treated as payment on
R.S.A No.74 OF 2008 – 3 –
behalf of other co-owner. Other than that circumstance which
had been canvassed by the plaintiff to substantiate his plea of
ouster the court found there was total paucity of evidence even to
infer that late Padmanabhan and thereafter the plaintiff had
exercised rights over the property denying the title of Kochu
Pennu, and, later, the defendant. View so formed by the trial
court on the materials placed in the case was found unassailable
by the lower appellate court. The lower appellate court also
found that there was no specific allegation as to the overtacts to
spell out that there was an ouster of rights of the defendant over
the suit property by the plaintiff or by his predecessor. It was also
noticed that Kochu Pennu, who passed away in 1985, resided
along with Padmanabhan, the father of the plaintiff, and he
attended to her affairs. The case of the defendant that Ext.B1 gift
deed was executed by Kochu Pennu with knowledge of
Padmanabhan and thereby she had obtained separate possession
and enjoyment over the 12.5 cents of property on the southern
portion of the suit property was also found probable and
creditworthy by the lower appellate court. I do not find any
impropriety or illegality in the conclusion concurrently formed by
R.S.A No.74 OF 2008 – 4 –
both the courts below that the plaintiff has miserably failed to
establish his case canvassed that there was ouster of the rights of
the defendant and thereby he was entitled to the reliefs
canvassed in the suit. No question of law leave alone any
substantial question of law is involved in the appeal, and it is
dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
// True Copy//
P.A to Judge
vdv