IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 RSA.No.939 of 2007 (C) ---------------------------- AS.18/1994 of I ADDL. DISTRICT COURT, KOLLAM OS.584/1991 of MUN-MAGI COURT, PARAVOOR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------- * JAYANTHI DEVI, AGED 68 YEARS, KUNNUMPURATHU VEEDU, ERAM, CHATHANNOOR. [DIED; LRs impleaded] ADDL. APPELLANTS 2 TO 6 A.A.2) J. REMADEVI, SS BHAVAN, NEAR CHATHANNUR S. N. COLLEGE, CHATHANNUR KARAMCODU KOLLAM. A.A.3) J. RENUKA, OF -DO- -DO- A.A.4) G. SABU OF -DO- -DO- A.A.5) J. BEENA, D/O DECEASED APPELLANT, -DO- -DO- A.A.6) J. SACHU OF -DO- -DO- *[ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT AS PER ORDER DT.21/11/08 IN I.A.2221/07 IN R.S.A.939/07] BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------ 1. S.N.TRUST, KOLLAM. 2. PRESIDENT, S.N.TRUST, KOLLAM. 3. SECRETARY, S.N.TRUST, KOLLAM. 4. PRINCIPAL, S.N.COLLEGE, CHATHANNOOR. RSA.No.939 of 2007 (C) -2- 5. KARUNAKARAN, CONVENER S.N.COLLEGE, CHATHANNOOR. * 6. PRABHAKARAN, VALIYA KATTUVILA NEAR S.N.COLLEGE, CHATHANNOOR. ADV. SRI.A.N.RAJAN BABU FOR R1&3 SMT.K.SUNITHA VINOD FOR R1 & 3 SRI.P.GOPALAKRISHNAN (MVA) FOR R1 & 3 *[R6 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER/APPELLANT AS PER ORDER IN I.A.2599/08 DT.22/01/09] THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.939 of 2007 ------------------------------------------------ Dated this the 13th day of March, 2009 JUDGMENT Appellant is the plaintiff, who has concurrently lost her case in the courts below. she filed O.S. No.584/91 before the Munsiff's Court, Paravoor for declaration of title, for fixation of boundary and for permanent prohibitory injunction in relation to 90 cents of property comprised in Sy. Nos.4403/1/21 and 4404/1/21 of Meenad Village in Kollam Taluk, inter alia, on the allegations that title over 6 acres and 99 cents in those survey numbers originally belonged to her mother Kunjikutty; that along with that she had an excess area of 90 cents and she was in possession of the entire extent of 6 acres and 99 cents from 1091 M.E onwards; that she sold one acre of property to one Neelakantan and that one acre by subsequent R. S. A. No.939 of 2007 -2- assignment devolved on the first defendant. In 1966, 3 acres and 30 cents of property was sold by the mother of the plaintiff in favour of the first defendant. Thus, from the property which belonged to Kunjikutty/the mother of the plaintiff, the first defendant obtained 4 acres and 30 cents of property. Another extent of one acre with a building therein was gifted by Kunjikutty in favour of her children. On the southern side of that one acre and on the eastern side of the first defendant's property, is the scheduled property situated. This property was gifted in favour of the plaintiff vide two documents dt.27/07/82 and 06/07/82. Ever thereafter, the scheduled property is in exclusive possession and enjoyment of the plaintiff. Defendants have no manner of right or possession over the said property. They wanted the scheduled property also for the convenience of the R. S. A. No.939 of 2007 -3- college run by them in the property purchased by them. When that was refused, they made attempts to trespass into the scheduled property and to tamper with the existing boundaries and hence, the suit. 2. The defendants filed a joint written statement contending inter alia that the suit is not maintainable; that it is incorrect to say that Kunjikutty had a total extent of 6 acres and 99 cents including the excesses; that the defendant purchased 4 acres and 30 cents of property and the mother of the plaintiff retained only one acre and the entire balance extent on the south and west was transferred in favour of the defendant. It is incorrect to say that she retained an excess portion of 90 cents. After sale deed in favour of the first defendant, Kunjikutty had possession of only one acre of property where her residential building was located and she R. S. A. No.939 of 2007 -4- is not entitled to claim any further extent. From the very date of the sale deed in favour of the first defendant, the property of the first defendant and the property that remained in the possession of Kunjikutty was demarcated and was enjoyed with well defined boundaries put up in 1980 and thereafter, she shifted her residence and the building was demolished. The entire property on the south and west of the said one acre was in possession of S.N.Trust ever since the execution of Ext.A6 sale deed in favour of the then Secretary of S.N.Trust Sri.R.Sankar. The said property along with other properties purchased by the S.N.Trust is used as a compound of S.N.College, Chathannoor for the purpose of the college. The allegation that plaintiff obtained title and possession over 90 cents under documents executed in 1982 and 1981 is incorrect. Those documents are fraudulently created to give a colour of right R. S. A. No.939 of 2007 -5- over the properties. Even if the plaintiff or her mother had any right or possession over any portion other than the one acre, the same is lost by adverse possession and limitation. The defendants or their agents never approached the plaintiff requesting for sale of any further extent of property in their possession. The allegation of attempted trespass is false and is denied. The said allegation is made only to suit the plaint claim. Plaintiff has no cause of action and she is not entitled either to declaration of title and possession or to injunction as prayed for and she is also not entitled to get boundaries fixed or put up as prayed for. 3. On the above contentions, the defendants prayed for dismissal of the suit with their costs. 4. On the above pleadings, the trial court raised necessary issues for trial and R. S. A. No.939 of 2007 -6- considering the case in the light of the evidence adduced in the case which consisted of oral evidence of PWs.1 to 3 and DWs.1 to 8 and documentary evidence Exts.A1 to A22 B1 to B-12 and Exts.C1 to C4(b) dismissed the suit though however, without costs. The plaintiff preferred AS.18/94 before the District Court, Kollam and the District Judge vide judgment dt.15/12/01 in the said appeal dismissed the appeal concurring with the findings of the trial court and that too however, without costs. Hence, this RSA by the plaintiff. 5. It is vehemently contended before me by the learned counsel for the appellant/ plaintiff that altogether the mother of the plaintiff was having six acres and 99 cents of property inclusive of 90 cents which is in excess; that she had sold one acre to Neelakantan and 3.30 acres to S.N.Trust and the one acre transferred to Neelakantan also R. S. A. No.939 of 2007 -7- has by subsequent assignments come to the first defendant/Trust and that out of the balance, she has made sale of 35 cents to one Sumathy and 25 cents to one Lakshmi and a further extent of 45 cents to the plaintiff; that as per Ext.A7 settlement deed an extent of 39 cents was gifted to the appellant by her mother over and above an extent of 25 cents which had already been gifted in her favour and that the excess of 90 cents which was available on measurement was settled by the mother of the appellant as per Ext.A1 in favour of her children Thankam; Sivarajan; the plaintiff and Prabha Devi respectively of 10 cents, 20 cents, 71 cents and 20 cents. The property thus settled under Ext.A1 is 1.21 acres. 6. It is worthy to note that it is for the first time that there is a recital in Ext.A1 that there is an excess of 71 cents R. S. A. No.939 of 2007 -8- along with the property obtained by her having an extent of 5 acres and 70 cents in Sy. No.4403/1/21 and 39 cents in Sy. No.4404/1/1. It is also worthy to note that in Ext.A7 gift deed which is executed hardly 10 days prior to execution of Ext.A1, there is no such recital and as per the recital therein what she has is only 5 acres and 70 cents in Sy. No.4403/1/21 and 39 cents in Sy.4404/1/1 and the extent that is retained in the possession of the mother of the plaintiff is stated to be only 55 cents. Under Ext.A1 it is seen that 10 cents, 20 cents and 25 cents are settled in favour of Thankam, Sivarajan and Prabha Devi which makes a total of 55 cents and there is no other 71 cents to be settled in favour of the plaintiff. From the recitals in Ext.A1 which is contrary to the recital in Ext.A7 it is evident that Ext.A1 is executed settling an extent of 71 cents in favour of the plaintiff R. S. A. No.939 of 2007 -9- for the sole purpose of enabling her to institute the present suit claiming that there is an excess of 71 cents along with 6 acres and 09 cents which her mother had originally. It is further strange that the case of the appellant/plaintiff is that there is 90 cents excess land in her possession and not that 71 cents which is excess land is in her possession. Thus, it is clear that the suit has been brought on false allegation with a view to fasten claim over certain extent of land in the possession of the defendants and is ill-conceived. The courts below were rightly dismissing the suit of the appellant/ plaintiff refusing to declare her title and possession over the scheduled property over which even on her own case there was no title document even in favour of her mother. The non-inclusion of 71 cents in Ext.A7 and inclusion of such 71 cents for the first time R. S. A. No.939 of 2007 -10- in Ext.A1 executed after 10 days of Ext.A7 show that the said document is created for the purpose of the suit and that the plaintiff has advanced a false claim. The suit in fact deserved to be dismissed with costs. In the circumstances, refusing admission, I dismiss this RSA in limine. K.P.BALACHANDRAN, JUDGE kns/- R. S. A. No.939 of 2007 -11- K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.939 OF 2007 ------------------------------------------------ Dated this the 3rd day of March, 2009 ORDER C.M.Application No.700/07 This is an application seeking for condonation of delay of 1568 days in filing the RSA. The judgment under appeal was passed on 15/12/01; copy application was made on 17/12/01 and stamp papers called for on 10/07/02 were produced on 11/07/02. Though the date fixed for appearance to receive copy was 29/07/02, it was taken delivery of only on 05/09/02, and the RSA is filed only on 12/04/07. 2. The reasons stated for the delay in the affidavit filed in support of C.M. Application is contained in paragraphs 2 and 3 of the affidavit. Paragraphs 2 and 3 of the affidavit are extracted hereunder:- R. S. A. No.939 of 2007 -12- “My husband was dealing with the case for me, before the Honourable Munsiff/Magistrate court Paravoor and after the dismissal of the suit preferred appeal before the District Court, Kollam. He engaged counsel for conducting cases in both courts. Since, I am suffering from severe heart diseases and acute diabetic I could not travel. I was enquiring to my husband about the progress of my case pending before the District Court, Kollam. On all the occasions he told me that it is a civil case and it takes its on time and the advocate will take care of the same. I believed the same. On 11/11/06 my husband died. After the death of my husband I was staying with my daughter, her husband is working in gulf country. My son is also working in the Gulf countries. I contacted my counsel through one of my relative on 08/01/07 with utter shock and dismay I came to know that the appeal filed by me was dismissed on 15/12/01. My counsel told to my relative that the dismissal of the case was aware of my husband. My husband never disclosed me about the dismissal of the appeal. He was purposefully kept the same in secret because my ill health and he was anxious about me. He may be afraid that the dismissal news will affect me. I made earnest efforts to get the case bundle from my counsel. But in the meanwhile, I happen to slip down in the toilet in the 1st week of February, 2007 sustaining dislocation of the ball and socket joint of the left hip which caused excruciate pain and I was unable to move about and was undergoing intense Ayurvedic treatment for recovery. As a result, I cannot meet my counsel at Ernakulam in the matter of filing the appeal which could be finalised and prescribed before this Hon'ble Court on 12/04/07. As such, there is a delay of 1568 days in filing the appeal” R. S. A. No.939 of 2007 -13- 3. It is on the above grounds that condonation of delay is prayed for. The respondents have filed a counter wherein they have contended that after 15/12/01 the petitioner was travelling to various places and was attending to marriage ceremonies and other social gatherings; that it is absolutely unbelievable that the petitioner was not aware of the disposal of the appeal of 1994 till 2007; that she could have contacted her counsel over land phone or mobile phone and the failure to contact her counsel evidences the wilful laches and negligence; that the averment that the petitioner was suffering from severe heart disease and acute diabetic is a ruse to furnish an explanation for delay; that no appeal was filed as the petitioner and her husband decided not to prosecute the case further; that the respondent/Trust has R. S. A. No.939 of 2007 -14- constructed building in the scheduled property for its educational institution and the petitioners and their predecessors were aware of the said construction, but they did not raise any objection; that the application for condonation of delay is without any bona fides and is an abuse of the process of court and that it has to be dismissed. 4. Apart from the said averments in the counter affidavit, the deponent has no case that he is having any direct knowledge as regards the existence or otherwise of the ailments alleged by the petitioner; regarding the death of the husband of the petitioner and the truth or otherwise of the allegations in para 3 of the affidavit that the petitioner happened to slip down in the toilet and sustained dislocation of the ball and socket joint of the left hip and was unable to move about from first February, 2007 till 12/04/07 R. S. A. No.939 of 2007 -15- or regarding the truth or otherwise of the allegations that she came to know of the dismissal of the appeal only on 08/01/07. 5. It is true that the petitioner has not furnished any evidence to substantiate her case of date of her knowledge as regards disposal of the appeal as regards her illness etc. However, though the first appellate court has concurred with the dismissal of the suit filed by the plaintiff for declaration of title and possession and for fixation of boundary and for permanent injunction, the appellate court has observed that though the appellant/plaintiff failed to establish that she has title and possession over the extent of property scheduled to the plaint, that does not mean that the defendants have established such title and possession. It is making such an observation that the dismissal of the suit was confirmed. It is worthy to note that it R. S. A. No.939 of 2007 -16- was from the plaintiff that the defendants purchased the property of 3.30 acres retaining in her possession the balance extent and necessarily when there is dispute regarding the boundary or the extent the dispute has necessarily to be set at rest and the court cannot leave the parties to take law into their own hands as has not been done by the first appellate court. In the circumstances, I am of the view that the delay has to be condoned in the interests of justice. 6. In the result, I condone the delay allowing this C.M. Application. R.S.A. No.939/07 Post this R.S.A for admission hearing next week. K.P.BALACHANDRAN, JUDGE kns/-