PRASANNA Vs. NESAMMA

JUDGEMENT

(1.) Aggrieved by the concurrent findings rendered by the Sub Court, Neyyattinkara in OS No.180/2006, a suit for declaration, recovery of possession and injunction, and the II Addl. District Court, Thiruvananthapuram, the plaintiffs have come up in RSA No.1337/2012; while the counterclaim plaintiff (defendant) in that suit approached this Court in RSA No.108/2013 aggrieved by the reversal of the judgment and decree in the counterclaim.

(2.) The facts for disposal of the cases will be as narrated in RSA No.1337/2012, since the said appeal is preferred by the plaintiffs.

(3.) The plaintiffs claim that they are the only legal heirs entitled to inherit the property of one Nesamony, who is the brother of the defendant. During the lifetime of Nesamony, four settlement deeds numbered as 85/98, 155/01, 153/01 and 154/01, and a release deed No.35/02 and an original Will No.2/98 were executed. The defendant, sister of the plaintiffs' father, filed OS No.644/86 for partition, which was decreed, and the property was partitioned. Thereafter, Nesamony was in possession of his share. The plaintiffs were born to one Dasamma, in the wedlock of one Simson. After the death of Simson, Nesamony married the plaintiffs' mother, Dasamma. Late Nesamony executed Exts.A3 & A4 settlement deeds dtd. 21/1/1998 in favour of the 4th plaintiff and plaintiffs 1 to 3, respectively, and Exts.A5 and A6 settlement deeds dtd. 5/2/2001 in favour of the 2nd and the 3rd plaintiffs, respectively. OS No.152/01 was instituted on 19/2/2001 by late Nesamony for declaration of title and putting up of boundaries against the defendant and while so, a release deed was alleged to have been executed in favour of the plaintiffs on 9/1/2002 (Ext.A23). On 31/5/2002, OS No.152/2001 was decreed, and on 10/12/2002, an execution petition was filed as EP No.417/2002. On 27/4/2003, Nesamony passed away and EA No.353/2003 was preferred by the appellants herein for impleading themselves as the legal heirs of the deceased decree holder Nesamony. On 28/11/2003, the defendant also preferred EA No.938/2003 seeking herself to be impleaded as the legal heir of the deceased Nesamony. On 12/1/2004, the application preferred by the appellants was dismissed and the application preferred by the defendant was allowed. Challenging the common order dtd. 12/1/2004 in EA Nos.353/2003 and 938/2003, WP(C) No.17393/2004 was filed. By judgment dtd. 29/6/2004, this Court allowed the writ petition, and the matter was remanded for fresh consideration, and thereafter a fresh order was passed on 17/3/2005. The said order was questioned in WP(C) No.14478/2005 and by judgment dtd. 11/10/2006, the writ petition was closed with the observation that, the appellants are at liberty to institute a fresh suit for declaration of title and if they succeed, the benefit accrued to the petitioner in EA No.938/2003 will enure to them. Accordingly, the present suit, OS No.180/2006, was filed. On 24/9/2007, the plaintiffs sought amendment of the reliefs to include recovery of possession, and the defendant filed an additional written statement incorporating a counterclaim seeking declaration of title, recovery of possession and injunction. Subsequently, IA No.789/2009 was preferred by the plaintiffs to exclude the counterclaim from the written statement, which was dismissed by order dtd. 15/10/2009. The defendant resisted the suit, contending that the executing court in an earlier proceeding had already found that the settlement deeds relied on by the plaintiffs are fabricated documents and therefore, the same are not binding on her. If the plaintiffs are excluded, the defendant is the sole legal heir and entitled to the entire property of the deceased Nesamony. The plaintiffs, on the other hand, contended that in the light of the observations made by this Court in WP(C) No.14478/2005, the order passed in EA Nos.353/03 and 938/03 is not final and not binding upon the defendant. On behalf of the plaintiffs, Exts.A1 to A26 documents were marked and PW1 to PW5 were examined. On behalf of the defendant, Exts.B1 to B17 documents were marked and DW1 was examined. Ext.C1 is the report of the advocate commissioner and Ext.C1(a) is the sketch. Ext.X1 is the certified copy of settlement deed No.153/01 executed by Nesamony in favour of the 2nd plaintiff. The trial court, on appreciating the oral and documentary evidence, framed the following issues for consideration: