P. RAVINDRANATH Vs. PADMINI K. NAIR

JUDGEMENT

(1.) AGGRIEVED by the order dated 05.01.2015 in I.A. No. 1631/2013 in O.S. No. 167/2012, the petitioner before the court below has come up with this original petition under Article 227 of the Constitution of India.

(2.) THE respondent as plaintiff laid O.S. No. 167/2012 claiming right over the entire plaint schedule property. It is not in dispute that the plaint schedule property originally belonged to one Raman Nair who is the uncle of the plaintiff in the suit. He admittedly executed a Will by which 32 and odd Ares of land were bequeathed to the plaintiff and her brother Gopinathan in equal shares. The claim put forward by the plaintiff was that even though as per the Will, Gopinathan was given certain extent of land, he had not taken possession of the same nor had he enjoyed the property. All the while the plaintiff was in actual possession and enjoyment of the entire property treating it as her own property and she has been taking income from the property. She has also averred in the plaint that to her knowledge, Gopinathan had not executed any document. On the allegation that certain persons had come to measure the property and since the defendant is claiming title to the property, plaintiff laid the suit for the following relief.

(3.) RELYING on the decision in Maria Margarida Sequeria Fernandes and Ors. v. Erasmo Jack de Sequeria (Dead) through L.Rs ( : AIR 2012 Supreme Court 1727), defendant before the court below moved I.A. No. 962/2012 in O.S. No. 167/2012 seeking dismissal of the suit based on the dictum laid down in the said decision. The court below, after considering the rival contentions and also the materials before it, came to the conclusion that the suit could not be thrown out at the threshold as contended by the defendant and decided to proceed on with the suit and accordingly dismissed I.A. No. 962/2012 by order dated 20.07.2013. Seeking review of the said order, I.A. No. 1631/2013 was filed by the petitioner herein. He pointed out that the spirit of the decision referred to above has not been property understood by the court below and none of the criteria laid down by the Apex Court in the said decision are satisfied in the present case and therefore the suit is not maintainable. The court below found that the contention cannot be accepted as such and dismissed the petition for review.