IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 RSA.No. 1257 of 2004(G) ----------------------- AS.132/2000 of SUB COURT,NEYYATTINKARA OS.700/1996 of PRL.MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------------------------------------- GOVINDAN NADAR ESWARDAS, AGED 48 YEARS, CHEKKALAKKAL VEEDU, IRUMBIL DESOM, NEYYATTINKARA VILLAGE. BY ADV. SRI.R.S.KALKURA SRI.FAIZAL P.LATHEEF SRI.M.S.KALESH SRI.AJAYA KUMAR. G SRI.M.R.SARIN SMT.K.L.SREEKALA RESPONDENT(S): RESPONDENT/DEFENDANT -------------------------------------------------------------- 1. D.SANTHALEELA D/O EMILY, AGED 58, GOVT.SERVANT, PANCHIKATTU GLORY BHAVAN, IRUMBIL DESOM, NEYYATTINKARA VILLAGE. 2. DANIEL DANAM, AGED 62 YEARS, PANCHIKATTU GLORY BHAVAN, IRUMBIL DESOM, NEYYATINKARA VILLAGE. ADV. SRI.G.S.REGHUNATH FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22 / 8/ 2011 THE COURT ON 22/08/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1257 OF 2004 =========================== Dated this the 22nd day of August,2011 JUDGMENT Plaintiff in O.S.700/1996 on the file of Principal Munsiff Court, Neyyattinkara is the appellant. Defendants are the respondents. Appellant instituted the suit for declaration of title, possession and injunction. Plaint schedule property is 6 ½ cents in survey No.65/2 of Neyyattinkara Village. It admittedly originally belonged to Perumal David. On his death, his legal heirs divided the property under Ext.A1 partition deed. C schedule property therein was allotted to the sharer of executant No.3,4 and 5, being the legal heirs of Abraham Nadar. Fifth executant is the wife of one of the deceased son of Abraham Nadar. Share was allotted to fifth executant for her minor children also. RSA 1257/2004 2 Appellant contended that the plaint schedule property was purchased by him from the minor son of the fifth executant, the wife of the deceased son of Abraham Nadar. Appellant contended that he has right, title and possession to the plaint schedule property and respondents attempted to trespass into the plaint schedule property and they are to be restrained by a permanent prohibitory injunction. Appellant also sought a declaration of his right, title and possession of the plaint schedule property. Respondents resisted the suit contending that description of the plaint schedule property is not correct. Appellant has no right, title or possession to the plaint schedule property and his assignor under Ext.A6 had no right to transfer the plaint schedule property and he obtained right to the plaint schedule property under Ext.B1 sale deed, executed by Mosa Abraham Nadar who was one of the executants of Ext.A1 partition deed and appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence dismissed RSA 1257/2004 3 the suit finding that plaint schedule property is not identified and appellant did not establish that there was a partition among the plaint C schedule sharers under Ext.A1 and in any case when the assignor of the appellant had already alienated 92.5 cents prior to the execution of Ext.A6, and what was left with him could only be 3 cents and hence appellant cannot claim right, title or possession to the plaint schedule property. Learned Munsiff also found that under Ext.A1 partition deed Mosa Abraham Nadar the assignor of the respondents under Ext.B1 was also allotted 95.6 cents and the assignor has title to the property conveyed under Ext.B1 which was anterior to Ext.A6 and hence appellant is not entitled to the decree sought for. 3. Appellant challenged the judgment before Sub Court, Neyyattinkara in A.S.132/2000. Learned Sub Judge on reappreciation of the evidence found that Exts.C1 and C1(a) report and plan submitted by the Commissioner establish the identity of the plaint schedule property and held that finding of RSA 1257/2004 4 the trial court that plaint schedule property is not identifiable is not correct. Learned Sub Judge relying on Exts.A2 and A3, the decree and judgment in O.S.767/1985 on the file of I Additional Munsiff Court, Neyyattinkara which was instituted by the assignor of the appellant for partition and redemption, had already found that there was a partition by course of conduct and therefore finding of the trial court that there was no partition among the plaint C schedule sharers is not correct. The learned Sub Judge found that under Ext.A1, fifth executant and her minor children are only entitled to 95.6 cents and Exts.B9, B10, B11, B13 and B14 establish that the assignor of Ext A6 had alienated 92.5 cents prior to the date of execution of Ext.A6 and at best the assignor could have only 3 cents left with him and therefore he could not have assigned 6 ½ cents under Ext.A6 and appellant cannot claim title to the plaint schedule property under Ext.A6 sale deed. Learned Sub Judge also found that the assignor of the respondents under Ext.B1 obtained RSA 1257/2004 5 title to 95.6 cents under Ext.A1 and there is no evidence to prove that he had alienated any portion of the property prior to the execution of Ext.B1 on 24.12.1993. Ext.A6 sale deed was executed in favour of the appellant only on 20.7.1996. As Ext.B1 is anterior in time his claim for possession is to be preferred. The appeal was dismissed with the finding that appellant has no right, title or possession to the plaint schedule property. It is challenged in the second appeal. 4. Second Appeal was admitted formulating the following substantial questions of law. 1) Have the courts below interpreted Exts.A1, A6 and B1 in accordance with law? 2) Did the courts below act in accordance with law in the matter of appreciating the evidence on record? 5. Learned counsel appearing for the appellant and respondents were heard. 6. The dispute in the suit is on the right, RSA 1257/2004 6 title and possession of the plaint schedule property, having an extent of 6 ½ cents. Appellant is claiming title to the plaint schedule property under Ext.A6 sale deed executed by Dennison Nadar. Respondents are claiming title under Ext.B1, the sale deed executed by Mosa Abraham Nadrar. Both appellant and respondents claim title obtained by their assignors under Ext.A1. O.S.767/1985 was earlier filed by the assignor of the appellant for redemption and partition of the plaint C schedule property covered under Ext.A1 partition deed. As is clear from Ext.A2 judgment, the suit was dismissed finding that by course of conduct there was already a partition among the C schedule sharers. But which are the properties allotted to the different sharers is not disclosed in Ext.A2 judgment. Whatever it be, the assignor of the appellant under Ext.A6 could only claim 95.6 cents. The fact that under Exts.B9, B10, B11, B13 and B14 the assignor of the appellant had alienated 92.5 cents, prior to the execution of Ext.A6 sale deed is not disputed, as it cannot be disputed in view RSA 1257/2004 7 of the documents produced. Therefore as rightly found by the courts below, even if there was partition by course of conduct and the assignor of the appellant obtained 95.6 cents, he had already transferred 92.5 cents before 20.7.1996. Hence the assignor under Ext.A6 had no right over 6 ½ cents transferred thereunder. At best he has title only to 3 cents of property. In such circumstances finding of the trial court that appellant has no title to the plaint schedule property is correct. The fact that the assignor under Ext.B1 has title to the property transferred thereunder, as property was allotted to him under Ext.A1 partition deed is not disputed. As there is no evidence to prove that the assignor under Ext.B1 had alienated any portion of the property obtained by him, prior to the execution of Ext.B1 sale deed, finding of the courts below that respondents have title to the property covered under Ext.B1 is also correct. 7. The argument of the learned counsel appearing for the appellant is that even if appellant has only title to 3 cents, as his RSA 1257/2004 8 assignor could assign only over 3 cents, a decree should have been granted to that extent of land. As rightly pointed out by the learned counsel appearing for the respondents, a decree for declaration of title, possession and injunction in respect of 3 cents of the plaint schedule property cannot be granted unless the said 3 cents is located. That 3 cents could be located only by identifying the 95.6 cents obtained by the assignor, under Ext.A1 partition deed, and separating the properties alienated under Exts.B9, B10, B11, B13 and B14. Without identifying the properties already alienated, the identity of the three cents available with the assignor under Ext.B1 cannot be fixed , and without determining that identity, a decree cannot be granted. In such circumstances, I find no merit in the appeal. Appeal is dismissed. The substantial questions of law are answered holding that courts below rightly interpreted Ext.A1 and B1 in accordance with law and courts below have appreciated the evidence in the proper perspective and rightly found that RSA 1257/2004 9 appellant has no title to the plaint schedule property and appellant is not entitled to the decree sought for. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006