P T Jacob @ Shaji Thomas Vs. Leena George - Court Judgment

SooperKanoon Citationsooperkanoon.com/1131679
CourtKerala High Court
Decided OnFeb-12-2014
JudgeHONOURABLE MR.JUSTICE P.BHAVADASAN
AppellantP T Jacob @ Shaji Thomas
RespondentLeena George
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice p.bhavadasan wednesday, the12h day of february201423rd magha, 1935 rsa.no. 142 of 2014 () ----------------------- os.no. 697/1999 of munsiff court, kottarakkara ------------------ appellant in rsa - appellant in as - defendant no. 3 in suit : ----------------------------------------------------------------------------------------------------- p t jacob @ shaji thomas, s/o.p.c.thomas, aged51 poikavilayil kizhakkekara muri, kottarakkara village kottarakkara taluk, pin - 691 506. by advs.sri.p.b.krishnan sri.n.ajith sri.p.m.neelakandan sri.p.b.subramanyan sri.sabu george respondents in rsa - respondents in a.s. - plaintiff & defendants1and2-------------------------------------------------------------------------------------------------------------------------- in suit : --------------- 1. leena george, w/o.george sakharia, aged52now residing at post box27144 vision centre safatt13131kuwait (from uthikkamannu, kuriyannoor muri, thottappuzhasseri village thiruvalla taluk) represented by her power-of attorney holder merry thomas, aged64 mulamoottil karipoika, keekkozhur muri, cherukol village, rannitaluk, pin - 689 672.2. beena alex aged78 johome cottage, nirmala college junction muvattupuzha - 686 673.3. thankachi thomas sreyas, sasthri junction, kadappakkada kollam, pin - 691 008 (from poikavila kizhakkekkara muri, kottarakkara village kottarakkara taluk) this regular second appeal having come up for admission on1202-2014, the court on the same day delivered the following: mn p.bhavadasan, j.- - - - - - - - - - - - - - - - - - - - - - - - r.s.a. no.142 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - dated this the 12th day of february, 2014 judgment in a suit for partition, defendants 2 and 3 who contested the suit, came forward with the contention that the right, if any of the plaintiff, has been lost by adverse possession and limitation. the trial court found against the said plea and decreed the suit for partition.2. before the lower appellate court, it is mentioned that an amendment application was moved to the effect that the settlement deed in favour of the p.c.alexander had not taken effect. that petition was dismissed.3. the short facts are that the property belonged to the parents of p.c. alexander. by ext.a2 settlement deed, properties were settled in favour of their children and plaint schedule property was settled in favour of p.c. alexander.4. the plaintiff in the suit is the daughter of p.c.alexander and the first defendant is the second wife of r.s.a. no. 142/2014 -2- p.c.alexander. defendants 2 and 3 are the brother's wife and their child who claimed that they have been in possession of property for a long time and even if the plaintiff had any right over the property, that has been lost by way of adverse possession and limitation.5. both the courts below have considered this aspect in considerable detail. it has come out in the written statement that the property is belonged to p.c.alexander. both the courts below seem to have taken note of this fact.6. the contention now taken is that the setlor died in 1989 and his wife, who had the right over the property, died in 1993. the suit was brought in 1999. the contention now raised is that in the written statement, which was sought to be amended by the defendants, they want to incorporate a plea that ext.a2 had not taken effect. there is no merit in the above contention.7. after having conceded the rights of p.c.alexander earlier to seek to amend the written statement at the r.s.a. no. 142/2014 -3- appellate stage stating that p.c.alexander did not have right over the property and the settlement deed had not taken effect. it is clearly an after thought and the plea that is sought to set up is a new case. the plea for amendment was rightly rejected. this court finds no reason to interfere with the judgment and decree passed by the courts below. while the trial court was right in decreeing the suit for partition, the lower appellate court was right in rejecting the application for amendment and consequently confirming the decree of trial court in appeal. this appeal is without any merits and is accordingly dismissed. sd/- p.bhavadasan judge ds //true copy// p.a. to judge
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE12H DAY OF FEBRUARY201423RD MAGHA, 1935 RSA.No. 142 of 2014 () ----------------------- OS.NO. 697/1999 OF MUNSIFF COURT, KOTTARAKKARA ------------------ APPELLANT IN RSA - APPELLANT IN AS - DEFENDANT NO. 3 IN SUIT : ----------------------------------------------------------------------------------------------------- P T JACOB @ SHAJI THOMAS, S/O.P.C.THOMAS, AGED51 POIKAVILAYIL KIZHAKKEKARA MURI, KOTTARAKKARA VILLAGE KOTTARAKKARA TALUK, PIN - 691 506. BY ADVS.SRI.P.B.KRISHNAN SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE RESPONDENTS IN RSA - RESPONDENTS IN A.S. - PLAINTIFF & DEFENDANTS1AND2-------------------------------------------------------------------------------------------------------------------------- IN SUIT : --------------- 1. LEENA GEORGE, W/O.GEORGE SAKHARIA, AGED52NOW RESIDING AT POST BOX27144 VISION CENTRE SAFATT13131KUWAIT (FROM UTHIKKAMANNU, KURIYANNOOR MURI, THOTTAPPUZHASSERI VILLAGE THIRUVALLA TALUK) REPRESENTED BY HER POWER-OF ATTORNEY HOLDER MERRY THOMAS, AGED64 MULAMOOTTIL KARIPOIKA, KEEKKOZHUR MURI, CHERUKOL VILLAGE, RANNITALUK, PIN - 689 672.

2. BEENA ALEX AGED78 JOHOME COTTAGE, NIRMALA COLLEGE JUNCTION MUVATTUPUZHA - 686 673.

3. THANKACHI THOMAS SREYAS, SASTHRI JUNCTION, KADAPPAKKADA KOLLAM, PIN - 691 008 (FROM POIKAVILA KIZHAKKEKKARA MURI, KOTTARAKKARA VILLAGE KOTTARAKKARA TALUK) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON1202-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No.142 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of February, 2014

JUDGMENT

In a suit for partition, defendants 2 and 3 who contested the suit, came forward with the contention that the right, if any of the plaintiff, has been lost by adverse possession and limitation. The trial court found against the said plea and decreed the suit for partition.

2. Before the lower appellate court, it is mentioned that an amendment application was moved to the effect that the settlement deed in favour of the P.C.Alexander had not taken effect. That petition was dismissed.

3. The short facts are that the property belonged to the parents of P.C. Alexander. By Ext.A2 settlement deed, properties were settled in favour of their children and plaint schedule property was settled in favour of P.C. Alexander.

4. The plaintiff in the suit is the daughter of P.C.Alexander and the first defendant is the second wife of R.S.A. No. 142/2014 -2- P.C.Alexander. Defendants 2 and 3 are the brother's wife and their child who claimed that they have been in possession of property for a long time and even if the plaintiff had any right over the property, that has been lost by way of adverse possession and limitation.

5. Both the courts below have considered this aspect in considerable detail. It has come out in the written statement that the property is belonged to P.C.Alexander. Both the courts below seem to have taken note of this fact.

6. The contention now taken is that the setlor died in 1989 and his wife, who had the right over the property, died in 1993. The suit was brought in 1999. The contention now raised is that in the written statement, which was sought to be amended by the defendants, they want to incorporate a plea that Ext.A2 had not taken effect. There is no merit in the above contention.

7. After having conceded the rights of P.C.Alexander earlier to seek to amend the written statement at the R.S.A. No. 142/2014 -3- appellate stage stating that P.C.Alexander did not have right over the property and the settlement deed had not taken effect. It is clearly an after thought and the plea that is sought to set up is a new case. The plea for amendment was rightly rejected. This Court finds no reason to interfere with the judgment and decree passed by the courts below. While the trial court was right in decreeing the suit for partition, the lower appellate court was right in rejecting the application for amendment and consequently confirming the decree of trial court in appeal. This appeal is without any merits and is accordingly dismissed. Sd/- P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge