IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RSA.No. 935 of 2011() --------------------- AS.356/2010 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.889/2003 of PRINCIPAL MUNSIFF COURT NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------------- 1. KUNJU LEKSHMI RAJAMMA, SUNDARAVILASAM BUNGLOW, AVIKUZHI, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 2. KUNJU LEKSHMI MIDHU, SUNDERAVILASAM BUNGALOW, AVIKUZHI, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 3. MADHAVAN NADAR VIJAYARAJAN, SUNDARAVILASAM BUNGLOW,AVIKUZHI, KADAVATTARAM DESOM, NEYYATTINKARA, VILLAGE. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.A.MANOHARAN SRI.R.S.MADHU SRI. MAHESH ANANDAKUTTAN RESPONDENT(S): PLAINTIFF ------------------------ KUNJU LEKSHMI LALITHA, AZHAKIYA MANDAPAM VEEDU, VIYANNOOR DESOM, VIYANNOOR VILLAGE KAIKULAM TALUK, KANYAKUMARI FROM SUNDARAVILASOM BUNGLOW, OLATHANNI, KADAVATTARAM, NEYYATTINKARA PIN-695133. ADV. SRI.G.S.REGHUNATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. .............................................. R.S.A.NO.935 OF 2011 ............................................. Dated this the 14th day of October, 2011. JUDGMENT Defendants in O.S.No.889/2003 on the file of Principal Munsif Court, Neyyattinkara are the appellants. Plaintiff is the respondent. Suit was filed for declaration of tile and recovery of possession. Plaint schedule property is 67 cents in Sy.No.185/1/17,18 and 20 of Kadavattaram village of Neyyatinkara taluk. Plaint schedule property admittedly originally belonged to the father of the first respondent and appellants 1 and 2. They are all sisters. Third appellant is the husband of the second appellant. The father admittedly executed Ext.A1 settlement deed, where under as item No.3 of C schedule, plaint schedule property was alloted to the respondent. Respondent contended that while she has been in possession of the property, appellants trespassed into the property and reduced it into their possession and therefore she is entitled to a decree for declaration of title and recovery of possession. Appellants together filed a written statement contending that under Ext.A1 settlement deed, mother was provided a life interest in respect of all the properties settled R.S.A.NO.935 OF 2011 : 2 : and while the mother was alive, respondent tried to sell the plaint property and the second appellant agreed to purchase the same and paid Rs.32,000/- as consideration and second appellant took over possession of the property. While so in 2000, she sold the property to one Damodoaran. Later the third appellant purchased it from Damodaran. Third appellant is a bonafide purchaser for valuable consideration and respondent is therefore not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, Dws 1 to 3 , Exts.A1 to A6 and B1 to B10 and C1 and C1(a) found that respondent has title to the plaint schedule property under Ext.A1 sale deed. The learned Munsiff also found that though it was contended by the appellants that respondent had agreed to sell the plaint property and an oral agreement was entered into, the alleged oral agreement was not proved and hence held that the respondent is entitled to the recovery of possession of the property. The appellants challenged the decree before the Additional District Court, Trivandrum in A.S.No.356/2010. The learned Additional District Judge on re- appreciation of the evidence confirmed the findings of the R.S.A.NO.935 OF 2011 : 3 : learned Munsiff and dismissed the appeal. Though an application was filed to advance the plea of adverse possession by amending the written statement, it was not allowed and the application for amendment w as also dismissed along with the appeal. The concurrent decree is challenged in the second appeal. 3. The learned counsel appearing for the appellants was heard. Argument of the learned counsel is that though under Ext.A1 settlement deed plaint schedule property was settled in favour of the respondent, when the respondent attempted to sell the plaint property, the mother intervened and second appellant agreed to purchase the same and respondent agreed to sell the property and second appellant paid Rs.32,000/= as the full consideration but no sale deed was executed and she was put in possession of the property and since then she has been in possession of the property and while so the property was assigned in favour of Damodaran in 2000 and Damodaran assigned the property in favour of the third appellant in 2003 and third appellant is in possession of the property and being a bona fide purchaser, his right is to be protected and the R.S.A.NO.935 OF 2011 : 4 : decree granted is unsustainable. 4. On hearing the learned counsel, I find no substantial questions of law involved in the appeal. The property which admittedly originally belonged to the father of appellants 1 and 2 and the respondent, was settled under Ext.A1 settlement deed, retaining the life interest of the mother to the share of the respondent as item 3 of C schedule therein. That title is not disputed. The only case is that as intervened by the mother, respondent agreed to sell the plaint schedule property to the said appellant and received Rs.32,000/- from the second appellant and second appellant was put in possession of the property. Apart from the allegation that there was an oral agreement for sale, there is no evidence to establish the existence of an oral agreement for sale. Though appellants would contend that the property obtained by the second appellant was later transfered under Ext.A6 to Damodaran, Ext.A6 shows that the property covered under Ext.A6 is not the northern portion of the 1.34 acres, but the southern 67 cents. Under Ext.A1, the property of the respondent is the northern 67 cents, which is admittedly R.S.A.NO.935 OF 2011 : 5 : the plaint schedule property. It is therefore clear that the property which was obtained by the second appellant is not the plaint schedule property. In the light of the evidence on record, courts below right found that respondent has title to the plaint schedule property and is entitled to get declaration of title and recovery of possession. The appeal is dismissed. Sd/- M. SASIDHARAN NAMBIAR, JUDGE. cl