IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 RSA.No. 235 of 2010() --------------------- AS.142/2003 of SUB COURT,NEYYATTINKARA OS.1210/1999 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SHANMUKHAM CHETTIYAR, S/O.AYYANAR CHETTIYAR, AGED 86 YEARS, THUNDUVILAKATHU VEEDU, VANIKAR THERUVU, BALARAMAPURAM, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.S.D.ASOKAN RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- MURUKAN, S/O.VELAYUDHAN CHETTIYAR, AGED 43 YEARS, THUNDUVILAKATHU VEEDU, VANIKAR THERUVU, BALARAMAPURAM, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.235 OF 2010 -------------------------------- Dated this the 4th day of October 2010 JUDGMENT Plaintiff in a suit for declaration of title, injunction and recovery of possession is the appellant. Concurrent decision rendered by the two courts below holding that he is not entitled to the reliefs canvassed for, and, thus, nonsuiting him, is challenged in this appeal. 2. Plaintiff sought for declaration of his title over 'A' schedule property having an extent of 12 ¼ cents situte in Athiyannoor village. According to him, leaving some portions of that property on the eastern and southern sides, compound walls were constructed to provide a way for having access to his property situate on the eastern side. The way provided is described as 'B' schedule in the plaint is having an extent of .750 sq. links. It is his case that over the compound wall constructed, after leaving 'B' schedule pathway, the defendants have put up some constructions after reducing 'B' schedule into their possession. The defendants have also put up a gate on the eastern side of 'B' schedule and thereby blocked that way was the further case of the plaintiff. Plaintiff sought for recovery of 'B' schedule and removal of the construction made over the compound wall, which was separately scheduled as 'C' schedule, R.S.A No.235 OF 2010 - 2 - by a decree of mandatory injunction. The defendants resisted the suit claim disputing the claim of title set up by the plaintiff over 'B' and 'C' schedule. They contended that the compound wall had been put up at the boundary separating the properties and the plaintiff has no right over 'B' schedule. Unauthorised construction alleged over the compound wall, which was separately scheduled as 'C' schedule by the plaintiff in the plaint, was also disputed by them. The trial court, after appreciating the materials tendered with reference to the pleadings, came to the conclusion that the plaintiff failed to establish his title and possession over the area claimed as 'B' schedule and that there was no convincing material to substantiate his claim of title over 'A' schedule as well. On the conclusion so reached, the plaintiff was nonsuited. The lower appellate court, reappreciating the materials, concurring with the conclusion formed by the court below confirmed the dismissal of the suit. Aggrieved thereby, the plaintiff has preferred this appeal. 3. I heard the learned counsel for the appellant. Having regard to the submissions made by the counsel with reference to the judgment rendered by the two courts below, I find that no question of law leave alone any substantial question of law arises in this appeal to entertain the same after being admitted and R.S.A No.235 OF 2010 - 3 - taken on file. Plaintiff producing a release deed A4 set up his claim of title over plaint 'A' and 'B' schedule properties. 'A' schedule formed part of a property having an extent of 49 cents known as Thonduvilakom. Under A4 release deed, what was obtained by the plaintiff was only release over 3/4th of the above 49 cents comprising two buildings. Ext.A4 deed as found by the trial court, indicated that the plaintiff got release only of undivided right over the property. It is seen from the judgment of the trial court, at the stage of trial, plaintiff canvassed his claim of title over 'A' schedule producing another document Ext.A1, an assignment deed over 12 ¼ cents of property in his favour, which was not mentioned in his plaint. After going through A1 deed, the trial court found that deed relied by the plaintiff also dose not improve his case since the property that was assigned was subject to a mortgage in favour of one Nainar Sivapadam. No material, whatsoever, was produced by the plaintiff before the trial court or the lower appellate court, to show that the mortgage, which was stated as subsisting when A1 assignment deed was made in his favour had been redeemed. In this appeal, with a petition filed under Order 41 Rule 27 of the Code of Civil Procedure seeking for reception of additional evidence, the appellant has produced a certified copy of a release deed R.S.A No.235 OF 2010 - 4 - purported to have been executed by the mortgagee Nainar Sivapadam along with a worn out, half destroyed, original release deed. Going through the certified copy of that release deed, it is seen that the mortgagee Nainar Sivapadam, under that document, had released his mortgage rights in favour of one Viswanathan. There is some reference to one Viswanathan in A4 release deed which was canvassed in the plaint by the plaintiff to claim title over A and B schedule properties. But the plaintiff has miserably failed to produce any material to show that after getting A1 assignment deed in his favour, he got any document that the release of mortgage in favour of the aforesaid Viswanathan had enured in his favour. The only other material to prove his possession tendered by the plaintiff was a revenue receipt exhibited as Ext.A2. The trial court has taken note that the revenue receipt covered only an extent of 5.5 cents and the charges were paid jointly by the plaintiff and his wife. Plaintiff has no case that in respect of 'A' schedule, having an extent of 12 ¼ cents, his wife has not got any title or right. Further more, A2 receipt showing payment of revenue charges, that too for an extent of 5.5 cents jointly with his wife, in no way would enable the plaintiff to show that he has possession over 'A' schedule property described in the suit. When the materials produced by R.S.A No.235 OF 2010 - 5 - the plaintiff were hardly sufficient to establish the title and possession claimed by the plaintiff over 'A' and 'B' schedule properties, as rightly pointed out by the trial court, the admission of the defendant that the plaintiff has some right over the property to the north of his property, which, according to him was beyond the compound wall, in no way would assist the plaintiff in getting the discretionary relief of declaration of title claimed over 'A' schedule property. Needless to point out, the recovery of possession over 'B' schedule and mandatory injunction must also fail when the plaintiff had failed to establish his title over 'A' schedule property. Both the courts have correctly and rightly held that the plaintiff is not entitled to the reliefs canvassed in his suit. There is no impropriety or infirmity in the decree so passed by the courts below. The appeal is devoid of any merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv