IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 SA.No. 535 of 2000(E) --------------------- AS.86/1995 of SUB COURT,ERNAKULAM OS.1458/1991 of MUNSIFF COURT,ERNAKULAM .................... SECOND APPELLANT/APPELLANT/PLAINTIFFS: ----------------------------------- 1. BALACHANDRAN, S/o. ALUNKAL ANANDAN RESIDING AT ANDIPILLIPARAMBIL CHEPANAM DESOM, KUMBALAM VILLAGE KANAYANNUR TALUK 2. MAKKIRA DEVI, AGED 52 W/o. BALACHANDRAN RESIDING AT ANDIPILLIPARAMBIL CHEPANAM DESOM, KUMBALAM VILLAGE KANAYANNUR TALUK BY ADV. SRI.S.SREEKUMAR RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------- SREENIVASAN, AGED 69 S/o. GOVINDA SHETTY KUNNATH CHEPANAM DESOM, KUMBALAM VILLAGE KANAYANNUR TALUK BY ADV. SRI.T.V.ANANTHAN THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/03/2010, ALONG WITH I.A.NO.1122 OF 2010 IN AS NO. 199 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.535 of 2000 and A.S.No.199 of 2003 and I.A.No.1122 of 2010 in A.S.No.199 of 2003 --------------------------------------- Dated this 18th day of March, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Ernakulam in A.S.No.86 of 1995 which challenged judgment and decree of learned Munsiff, Ernakulam in O.S.No.1458 of 1991. That was a suit filed by the plaintiffs for seeking prohibitory injunction claiming that plaintiff No.2 was entitled to 10 cents out of the suit property by way of kudikidappu right and while so defendant therein agreed to sell the adjoining 12 cents to plaintiff No.1 for a total consideration of Rs.13,000/-. Plaintiffs claimed that on payment of the said amount to the defendant the latter transferred possession of the said 12 cents to plaintiff No.1 in the year 1987. Defendant contended that plaintiffs approached him in the year 1986 requesting him to sell 12 cents in survey No.15/4 for a consideration of Rs.2,000/- per cent. Defendant agreed and plaintiff No.1 paid Rs.13,000/- to the defendant. The balance amount was to be paid within one year after construction of a house in the 12 cents. The 12 cents was put in possession of plaintiff No.1 in the year 1986 but plaintiff No.1 did not pay the S.A.No.535 of 2000 2 balance sale consideration. Instead, plaintiff No.1 filed O.S.No.1286 of 1980 which ended in a dismissal. Defendant denied that 10 cents was given to plaintiff No.2 by way of kudikidappu. He also denied that plaintiffs are in possession of the said 10 cents. Trial court dismissed the suit. First appellate court allowed the appeal in part and granted decree in respect of the 12 cents which the defendant admitted, was put in the possession of plaintiff No.1 pursuant to the agreement for sale. Judgment and decree of the first appellate court to the extent it went against the plaintiffs is challenged in S.A.No.535 of 2000. 2. In the meantime defendant filed O.S.No.165 of 1995 against the plaintiffs in O.S.No.1458 of 1991 another for recovery of possession of the 12 cents and for mandatory injunction to direct them to remove the structures put up in the said 12 cents. That suit was resisted by the plaintiffs in O.S.No.1458 of 1991 on the very same contentions stated in the plaint in O.S.No.1458 of 1991. In that case learned Munsiff passed a decree disallowing recovery of possession and mandatory injunction regarding plaint A schedule property but granting decree for recovery of possession of C schedule and allowing the defendant (plaintiff in O.S.No.165 of 1995) to recover Rs.11,000/- from the plaintiffs in O.S.No.1458 of 1991 with interest at the rate of 18% per annum from 01-02-1988. That judgment and decree are under challenge in A.S.No.199 of 2003. S.A.No.535 of 2000 3 3. Now the parties have reached a settlement outside the court as per which S.A.No.535 of 2000 is to be dismissed as not pressed and accordingly appellants therein have filed a not pressed memo. In A.S.No.199 of 2003, parties have field compromise vide I.A.No.1122 of 2010 stating terms and conditions of the compromise and requesting that a decree may be passed in terms of the compromise. In the result: (i)S.A.No.535 of 2000 is dismissed as not pressed. (ii)The compromise vide I.A.No.1122 of 2010 in A.S.No.199 of 2003 is accepted and recorded. A.S.No.199 of 2003 is disposed of in terms of the compromise and in substitution of the decree under challenge in that case, there will be decree in terms of the compromise. (iii)The compromise (I.A.No.1122 of 2010) shall form part of the decree of this court in A.S.No.199 of 2003. (iv)Parties shall suffer their costs. THOMAS P JOSEPH, JUDGE Sbna/