IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 RSA.No. 1312 of 2008() ---------------------- AS.178/1997 of DISTRICT COURT, THALASSERY OS.295/1994 of PRL.MUNSIFF COURT, KANNUR .................... APPELLANT(S): APPELLANT/PLAINTIFF: -------------------------------------------------------------- *CHERUVAMBALLI KRISHNAN, S/O.DEVAKI, 75 YEARS, KALLIASSERI AMSOM, IRINAVU DESOM PO., IRINAVU, KANNUR TALUK, KANNUR DISTRICT. ( D I E D) - LRS IMPLEADED AS ADDL.APPELLANTS 2 TO 8 AND RESPONDENTS 13 AND 14. *ADDL.A2 TO A8 IMPLEADED: A2. JANAKI, W/O.CHERUVAMBALLI KRISHNAN, S/O.DEVAKI, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. A3. PUSHPAVALLY, W/O.SREEDHARAN, SREEPUSHPAM, NEAR KACHERITHARA, P.O.IRINAVE, CHEMKUNNU VIA, KANNUR. A4. PUSHPARAJAN, S/O.CHERUVAMBALLI KRISHNAN, S/O.DEVAKI, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. A5. PRASAD, S/O. CHERUVAMBALLI KRISHNAN, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. Kss .2/- ..2.... RSA.NO.1312/2008 A6. PRASHOBH, S/O.CHERUVAMBALLI KRISHNAN, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. A7. RATNAVALLY, W/O.RAJENDRAN,NEAR IRINAVU U.P.SCHOOL, P.O.IRINAVU, VIA CHEMKUNNU, KANNUR. A8. HEMAVALLY, D/O.CHERUVAMBALLI KRISHNAN, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. ADDL.A2 TO A8 BY ADV. SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------- 1. VALLATHIL KRISHNAN, S/O.KUNHAPPU, KALLIASSERI AMSOM, IRINAVU DESOM, PO.IRNAVU, KANNUR TALUK, KANNUR DISTRICT. 2. KALLIANI, W/O.LATE VEERAN KORAN, KALLIASSERI AMSOM, IRINAVU DESOM, PO.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. 3. KAMACHI ALIAS KALLIANI, W/O.LATE PULIKANDI NARAYANAN, KALLIASSERI AMSOM, IRINAVU DESOM, PO.IRINAVU, KANNUR TALUK,KANNUR DISTRICT. 4. SINDHU, D/O.KALLIANI, DO.DO. 5. LEENA, D/O.KALLIANI, DO.DO. 6. BEENA, D/O.KALLIANI, DO.DO. 7. KUNHIRAMAN, S/O.VEERAN KORAN, DO.DO. Kss ..3/- ..3.... RSA.NO.1312/2008 8. BALAKRISHNAN, S/O.VEERAN KORAN, DO.DO. 9. UTHAMAN, S/O.VEERAN KORAN,DO.DO. 10. PRADEEPAN, S/O.VEERAN KORAN, DO.DO. 11. RAJESH, S/O.VEERAN KORAN, DO.DO. 12. PREETHA, D/O.VEERAN KORAN, DO.DO. *ADDL.R13 & R14 IMPLEADED: R13. PRADEEP KUMAR, S/O.CHERUVAMBALLI KRISHNAN, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. R14. PREMAN, S/O.CHERUVAMBALLI KRISHNAN, KALLISSERI AMSOM, IRINAVU DESOM, P.O.IRINAVU, KANNUR TALUK, KANNUR DISTRICT. *THE LRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 8 AND ADDL.R13 & R14 VIDE ORDER DATED 18/03/2011 IN I.A.621/2011. R2, R11 & R12 BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH, SMT.R.LEELA. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1312 OF 2008 --------------------------------------------- Dated 22nd June, 2011 JUDGMENT Plaintiff in O.S.295/1994 on the file of Munsiff court, Kannur is the appellant. Defendants are the respondents. Appellant instituted the suit for recovery of possession of plaint B to D schedule properties contending that they form part of plaint A schedule property trespassed upon by the respondents and respondents have no title to that property and hence appellant is entitled to recover possession of the properties on the strength of the title, after fixing the boundary. Admittedly, property originally belonged to Puthiyakavu Devaswom on jenm right. Appellant would contend that it was RSA 1312/08 2 outstanding in the possession of Kizhakke Veettil Manickkam and one Padannakara Apputty and his nephew Krishnan were in possession of the property and on 15/3/1954 Apputty and his nephew conveyed their rights in favour of the appellant and thus appellant has been in possession and enjoyment of the property and while so, he assigned 24 cents of property in favour of his son-in-law Sreedharan and plaint A schedule property is the remaining property and respondents 1 and 2 and one Pulikandi Narayanan tried to trespass into the property and then appellant filed O.S.641/1991 and that suit was later withdrawn with liberty to file a fresh suit and the suit is filed thereafter. It is contended that respondents have no manner of right to be in possession of plaint B to D schedule RSA 1312/08 3 properties. Respondents resisted the suit contending that appellant has no title to plaint B to D schedule properties and he is not entitled to recover possession of the same. 2. Learned Munsiff on the evidence of Ext.A1 to A6,B1 to B3 and C1 and C2 and oral evidence of the appellant as PW1 and that of the first respondent as RW1 partly decreed the suit fixing the southern boundary of plaint A schedule property as line HFBC as demarcated in Ext.C2 plan. The respondents were restrained from trespassing into the plaint A schedule property. The relief of recovery of possession of plaint B to D schedule properties was rejected. Appellant challenged the judgment before District court, Thalassery in A.S.178/1997. Learned District Judge on re- appreciation of the evidence confirmed the RSA 1312/08 4 findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant and respondents were heard. 4. Argument of the learned counsel is that even if it is found that appellant has not established his title to plaint B to D schedule properties, when he has set up possessory title and his previous possession was established by production of Ext.A3 series of basic tax receipts, courts below were not justified in ignoring the basic tax for the mistake in survey number and on the evidence, it should have been found that appellant is entitled to recover possession of plaint B to D schedule properties. 5. On hearing the learned counsel RSA 1312/08 5 and going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. Courts below on the evidence found that appellant did not establish that he is the Krishnan referred to in Ext.A5 and he cannot claim title to plaint B to D schedule properties, based on Ext.A5. On the evidence that factual finding cannot be said to be erroneous. 6. Though learned counsel argued that even if appellant had not established title based on Ext.A5, a decree for recovery of possession should have been granted on his possessory title. This aspect was also considered by the courts below and found that appellant did not establish his previous possession of plaint B to D schedule properties. Though learned counsel argued RSA 1312/08 6 that survey number in Ext.A3 series of basic tax receipts were wrongly noted, no such explanation was offered at the time of evidence. Courts below on the evidence found that respondents have title to the plaint B to D schedule properties. That factual finding is also in accordance with the evidence. I find no substantial question of law involved in the appeal. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.