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Vadakkayil Balan – Appellant
Versus
Prabhakaran Nambiar – Respondent
JUDGMENT :
1. The Defendant Nos.2 and 3 in O.S.No.66/2005 on the files of the Sub Court Thalassery are the appellants. The suit was filed for declaration, recovery possession with profits. The suit was a representative suit filed under Order I Rule 8 CPC. The plaint schedule property has an extent of 1 acre 4 cents of land in Resurvey No.74/2A.1B in Kottayam village in Kannur Taluk forming the western part of ‘Poyillyath parambu’ and the house therein.
2. Plaintiffs filed the suit for declaring that Ext.A1 assignment deed of the year 1994 with respect to the plaint schedule property executed by the 1st defendant, who is a member of the Tharavad, in favour of the 2nd and 3rd defendants is not valid and binding on the plaintiffs and the members of the Tharavad, for recovery of the possession of the plaint schedule property for and on behalf of all members of the Tharavad with profits. An alternative prayer was made for recovery of the Tharavad House in the plaint schedule property for and on behalf of all members of the Tharavad in case it is found that Narayanan Nambiar, father of the 1st defendant, after his death, the 1st defendant had any special right in the plaint schedule proper
Section 44 of the Transfer of Property Act does not apply if the property in question is not a habitable dwelling house and the plaintiffs fail to establish their claim.
The court established that Section 44 of the Transfer of Property Act does not confer rights over a property that is not a dwelling house, particularly when the plaintiffs failed to prove their claim....
For a property to be considered an undivided dwelling house under Section 44 of the T.P. Act, 1882, it must be physically connected and necessary for the enjoyment of the dwelling, which was not esta....
The court upheld the plaintiff's right to seek a mandatory injunction against the defendant, emphasizing the necessity of consistent evidence and pleadings in property disputes.
A permanent injunction can be granted against a co-owner if the plaintiffs establish their possession and enjoyment of the property, despite the defendant's claims.
To establish the sameness of interest, it is not necessary to establish sameness of the cause of action. Sameness of interest is a pre-requisite for application of under Order 1 Rule 8 of the C.P.C.
The court affirmed that ownership claims must be supported by documentary evidence, and the principle of preponderance of probability governs determinations of title and tenancy.
Possession established by parties through revenue documents prevails over contested ownership claims; mere sale deed insufficient to negate established rights.
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