Kerala High Court
Against The Judgment And Decree Dated ... vs By Advs on 12 February, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941
RSA.No.71 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 20.09.2019 IN AS NO.57/2017
OF SUB COURT, PUNALUR CONFIRMING THE JUDGMENT AND DECREE DATED
25.08.2017 IN OS NO.176/2014 OF MUNSIFF'S COURT, PUNALUR
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APPELLANTS/APPELLANTS/PLAINTIFF
SREEKUMAR,
AGED 40 YEARS,
S/O. SREEDHARAN PILLAI, KALABHAVAN, CHORANADU VADAMON
MURI, ANCHAL VILLAGE, PUNALUR TALUK-691 306.
BY ADVS.
SRI.S.JAYANT
SHRI.VARGHESE SABU
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 VIJAYAKUMARY,
AGED 57 YEARS,
D/O. THANKAMMA, KALABHAVAN, CHORANADU VADAMON MURI,
ANCHAL VILLAGE, PUNALUR TALUK, KOLLAM-691 306.
2 SREEKALA,
AGED 40 YEARS,
D/O. VIJAYAKUMARY, KARTHIKA, AERAM MURI, ANCHAL
VILLAGE, PUNALUR TALUK, KOLLAM-691 306.
R1-2 BY ADV. SMT.RESMI NANDANAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.02.2020, ALONG WITH RSA.81/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941
RSA.No.81 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 20.09.2019 IN AS NO.58/2017
OF SUB COURT, PUNALUR CONFIRMING THE JUDGMENT AND DECREE DATED
25.08.2017 IN OS NO.176/2014 OF MUNSIFF'S COURT, PUNALUR
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APPELLANT/APPELLANT/PLAINTIFF/COUNTER CLAIM DEFENDANT:
SREEKUMAR,
AGED 40 YEARS
S/O. SREEDHARAN PILLAI, KALABHAVAN, CHORANADU VADAMON
MURI, ANCHAL VILLAGE, PUNALUR TALUK, PIN-691306.
BY ADV. SRI.S.JAYANT
RESPONDENTS/RESPONDENTS/DEFENDANTS/COUNTER CLAIM PLAINTIFFS:
1 VIJAYAKUMARY,
AGED 58 YEARS, D/O. THANKAMMA, KALABHAVAN, CHORANADU
VADAMON MURI, ANCHAL VILLAGE, PUNALUR TALUK,
KOLLAM-691306.
2 SREEKALA,
AGED 42 YEARS, D/O. VIJAYAKUMARY, KARTHIKA, AERAM
MURI, ANCHAL VILLAGE, PUNALUR TALUK, KOLLAM-691306.
R1-2 BY ADV. SMT.RESMI NANDANAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.02.2020, ALONG WITH RSA.71/2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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RSA Nos.71 & 81 of 2020
==================
Dated this the 12th day of February, 2020
JUDGMENT
The appellant is the plaintiff in a suit seeking a declaration that Ext.A1 settlement deed is void and for injunction not to evict the plaintiff from the property. The defendants raised a counter claim seeking eviction. The suit was dismissed and the counter claim was decreed concurrently by the courts below.
2. The plaint schedule property belonged to the mother of the first defendant. She executed Ext.B2 settlement deed in favour of the first defendant. As per Ext.B3 settlement deed (which is the same as Ext.A1), the first defendant conveyed the property in favour of the second defendant. The suit is filed challenging Ext.A1 (Ext.B3) settlement deed. The plaintiff is none other than the son of the first defendant and the brother of the second defendant. The plaintiff challenged the settlement on the ground that, amounts were paid by the RSA Nos.71 & 81 of 2020 :- 2 :-
plaintiff to the second defendant as per the directions of the grand mother, the original owner of the property, with the understanding that the plaint schedule property will be conveyed to the plaintiff. The plaintiff expended huge amounts for construction of the building in the plaint schedule property. The plaintiff also claims that he has acquired a right by birth over the plaint schedule property. The defendants denied the plaint claim and contended that the plaintiff was permitted to reside in the house in the plaint schedule property, and since baseless claims are raised, they seek for eviction of the plaintiff from the property.
3. Heard learned counsel Sri.Jayant S., the learned counsel for the appellant and Smt.Resmi Nandanan, the learned counsel for the respondents, on admission.
4. As regards the claim of right by birth over the property, the courts below noticed that except for a vague statement, no derivation is pleaded or brought out as to how the plaintiff claims a birth RSA Nos.71 & 81 of 2020 :- 3 :-
right over the property. The property that belonged to the mother of the first defendant became vested with the second defendant under Ext.B3. Therefore, the claim of, right by birth, was rightly rejected by the courts below.
5. As regards the ground of challenge against the settlement deed Ext.A2(Ext.B3), the courts below on the evidence found that there is no proof about the payment of any amounts to the second defendant at the time of her marriage or regarding any understanding for conveyance of the property to the plaintiff. It was also found that the contention of the plaintiff that he had expended huge amounts for construction of building in the property was also not substantiated. As noticed by the courts below even assuming that the plaintiff has expended amounts for the benefit of the defendants, his remedy is only to claim the money expended for them. At any rate, that is not a ground to challenge the settlement deed.
6. Further, as held by the courts below, Ext.A1 settlement deed is of the year 2000 and the suit is RSA Nos.71 & 81 of 2020 :- 4 :-
filed in the year 2014 and the suit is hopelessly barred by limitation. Of course, the same is immaterial in view of the fact that the plaintiff does not have any legal ground to raise a challenge against Ext.A1 settlement deed.
7. Having found that the plaintiff does not have any right over the plaint schedule property, he is liable to be evicted therefrom. The courts below were right in allowing the counter claim.
There is no merit in the appeal. No question of law much less any substantial questions of law arises for consideration in these second appeals. Appeals fail and are accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge