IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 SA.No. 200 of 1998(F) ------------------------------- A.S.NO.233/1993 of DISTRICT COURT & SESSIONS COURT, KOZHIKODE O.S.NO.155/1990 of SUB COURT, QUILANDY .................... APPELLANT/ APPELLANT/PLAINTIFF ----------------------------------------------------- THAYYULLATHIL KUNHIKANNAN, S/O.SRI.KUNHIRAMAN, RESIDING AT KOTTAMPARA MALAYIL,VALIYA PARAMBIL, VELAM AMSOM, KURICHAKAM DESOM, KOYILANDI TALUK. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADV. SMT.A.PARVATHI MENON RESPONDENT(S)/RESPONDENTS/DEFENDANTS ---------------------------------------------------------------------- 1. PONATHILKANDY THAZHAKUNIYIL KUNHIKANNAN,S/O.UNNEERA, AGRICULTURIST, VELAM AMSOM, KURICHAKAM DESOM, KOYILANDI TALUK. 2. THAYYULLATHIL JANU, DO AMSOM,DESOM, KOYILANDY TALUK. 3. SANKARAN, DO. DO. 4. KALLIANI, DO. 5. NARAYANI, DO. 6. NANU, DO. 7. LEELA, DO. 8. KRISHNAN, DO. 9. RAGHAVAN, DO. 10. SHYLA, DO. 11. KUNIYIL KUNHIKANNAN, VALAM AMSOM, CHERUKUNNU DESOM. R1 BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADV. SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR R2 TO R10 BY ADV. SRI.K.RADHAKRISHNAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.200/1998 ORDER ON C.M.P.NO.598/1998 IN S.A.NO.200/1998 DISMISSED 04/03/2011 SD/-P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 200 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2011. JUDGMENT The defeated plaintiff in O.S.155 of 1990 before the Sub Court, Quilandy is the appellant. 2. The suit initially one for injunction was later amended incorporating a plea for recovery of possession on the strength of title. Both the courts below addressed the respective title of the parties and it is unnecessary to refer to the pleadings in detail. The short facts absolutely necessary are that the plaintiff claims that he is in absolute possession and enjoyment of the suit property. The suit was filed by contending that if by any reason it is found that the first defendant is in possession of plaint C schedule property shown in the plaint, he may be allowed to recover the same. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A41 from the S.A.200/1998. 2 side of the plaintiff. The defendants did not adduce any oral evidence, but had Exts.B1 to B33 marked. The trial court on the basis of the finding that the property has not been identified, dismissed the suit. Plaintiff carried the matter in appeal as A.S.233 of 1993. The lower appellate court for an entirely different reason confirmed the dismissal of the suit. Hence the Second Appeal. 4. Notice is seen issued on the following questions of law: “1. Whether the lower appellate court was right in drawing an adverse inference against the plaintiff on the ground that the suit for injunction was converted into a suit for recovery of possession. 2. Whether the lower appellate court was right in not deciding relevant issues by rendering a finding that the suit for injunction was converted into one for possession and therefore the plaintiff had not approached the court with clean hands. 3. Whether the order of the Land Tribunal in which the plaintiff or D2 to D10 were not parties is binding on them? S.A.200/1998. 3 4. Whether the conclusion of the lower appellate court that the 1st defendant who obtains a purchase certificate impleading only one of the co-owners would become a co-owner with plaintiff and defendants 2 to 10 and therefore a suit for partition alone is maintainable especially when his right to possession is itself disputed.” 5. It is true that the trial court chose to dismiss the suit on the ground that the property had not been identified. The lower appellate court on the other hand found that the plaintiff and the first defendant are co-owners and one co-owner cannot maintain a suit for injunction and recovery of possession against the other co-owner. The lower appellate court has considered the derivation of title in detail and found that the 11th defendant was a party to the proceedings before the Land Tribunal in which the purchase certificate has been issued to the first respondent. Ext.B3 is the said purchase certificate. The proceedings show that one Mandan was the land owner and Kunhothenan, S.A.200/1998. 4 Kunhikannan and Kumaran, who are the three sons of Mandan were seen impleaded as intermediaries. Kunhothenan had assigned his rights in favour of the mother of the plaintiff in 1968 and Kumaran assigned his properties in 1965. So the lower appellate court found that as on the date of Ext.A40 proceedings, they had no right over the property involved in the S.M. proceedings. Matha was not a party to the said proceedings. It is found that the 11th defendant, who was a party to the proceedings, is bound by the order and the purchase certificate is conclusive under Section 72K of the Kerala Land Reforms Act. Ultimately, the lower appellate court reached the conclusion that at any rate the first respondent stepped into the shoes of Kunhikannan. The plaintiff had not challenged the proceedings before the Land Tribunal before any other forum. The lower appellate court was perfectly justified in coming to the conclusion that since the first respondent is a co-owner, the suit is not maintainable as one co-owner cannot seek injunction or recovery against the other S.A.200/1998. 5 co-owner. None of the questions of law arises for consideration in this second appeal. This Second Appeal is without merits and it is dismissed leaving open the other remedies open to the plaintiff, which he may pursue in accordance with law. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.