IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 RSA.No. 105 of 2009() --------------------- AS.54/2002 of PRL.S.C.,THALASSERY OS.34/1998 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANTS/ RESPONDENTS 1 & 2/DEFENDANTS 1 & 2: ------------------------------------------------------- 1. THE CANNANORE UNITED CLUB, REPRESENTED BY ITS PRESIDENT, REGISTERED S.NO.3/1947 OF ACT XXI/1860, PAYYAMBALAM, KANNUR-1. 2. THE CANNANORE UNITED CLUB, REPRESENTED BY ITS SECRETARY, REGISTERED S.NO.3/1947 OF ACT XXI/1860, PAYYAMBALAM, KANNUR-1. PLAINT AMENDED AS PER ORDER IN I.A.NO.3006/01 DATED 7.9.2001. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS/APPELLANTS AND RESPONDENTS 3/PLAINTIFFS AND D3: -------------------------------------------------------------- 1. MRS.SAROJINI VIJAYAKUMAR, S/O.MADHAVI, AGED 72 YEARS, NO OCCUPATION, MADHAVI VILLA, PAYYAMBALAM, KANNUR-1. 2. MRS.SEETHA SREEDHARAN, D/O.MADHAVI, AGED 69 YEARS, NO OCCUPATION, A.R.K.COLONY, ALWARPETTA, MADRAS-18. 3. MRS.SAVITHRI GEORGE, W/O.GEORGE, ARTHUR RUTTER, AGED 77 YEARS, NO OCCUPATION, THATTUMBRAM HOUSE, NEAR VETISSERY HOSPITAL, KOZHIKODE-6. CHILDREN: 4. JANITHA DAS, D/O.GEORGE, ARTHER RUTTER, AGED 50 YEARS, NO OCCUPATION, THATTUMBRAM HOUSE, NEAR VETISSERY HOSPITAL, KOZHIKODE-6. 5. E.T.RAJEEV, S/O.GEORGE ARTTER RUTTER, AGED 48 YEARS, MEDICAL REPRESENTATIVE, THATTUMBRAM HOUSE, NEAR VETISSERY HOSPITAL KOZHIKODE-6. 6. E.T.MANOJ, S/O.GEORGE ARTHER RUTTER, AGED 44 YEARS, NO OCCUPATION, THATTUMBRAM HOUSE, NEAR VETISSERY HOSPITAL KOZHIKODE-6. 7. PARAKKATTU SREEDHARAN NAMBIAR, S/O.KRISHNAN NAMBIAR, AGED 66 YEARS, BUSINESS, KANNUR II AMSOM, PAYYAMBALAM, KANNUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.105 of 2009 --------------------------------------- Dated this 08th day of October 2009 JUDGMENT Respondent Nos.1 to 6 instituted O.S.No.34 of 1998 in the court of learned Munsiff, Kannur seeking recovery of possession of plaint B schedule, described as 7 1/2 cents from appellants on the strength of their title and for mandatory injunction to direct appellants to remove the structures they have put up in plaint B schedule. They claimed that a total extent of 7 acres belonged to their predecessor in interest, Madhavi who sold portions of that property to strangers and for the remaining 4.52 acres, she applied for purchase certificate claiming to be a cultivating tenant. After her death the certificate was issued in favour of her legal representatives. During her life time she had sold 10cents (plaint A schedule) to the appellants as per Ext.A2, assignment deed dated 07-05-1977. According to respondent Nos.1 to 6 they, as legal representatives of Madhavi were in possession and enjoyment of B schedule which is situated immediately on the west of A schedule and abutting the sea on the further west. Appellants took possession of B schedule and constructed the structures and hence the suit. Appellants contended that Madhavi and her legal representatives have abandoned the B schedule as it was not usable or approachable for them. It is their further contention that plaint B schedule was set apart by Madhavi and others to meet soil erosion. Appellants got R.S.A.No.105 of 2009 2 possession of B schedule as per Ext.B4, gift deed from respondent No.7/defendant No.3 as per oral transfer from the said Madhavi. Respondent No.7 also raised similar contentions. Learned Munsiff was not inclined to accept the contention of respondent Nos.1 to 6 and dismissed the suit. On their appeal, learned Sub Judge found that the plaint B schedule belonged to respondent Nos.1 to 6 and they are entitled to recover possession of the same. Accordingly, suit was decreed. Judgment and decree of the first appellate court are under challenge. The substantial questions of law urged in the appeal memorandum is whether in a suit for recovery of possession on the strength of title, a property deliberately and voluntarily abandoned by respondent Nos.1 to 6 can be recovered. Learned counsel for appellants contend that judgment and decree of first appellate court is not correct in the eye of law. 2. Title of the disputed B schedule with Madhavi and consequent on her death with respondent Nos.1 to 6 is not disputed and proved by respondent Nos.1 to 6. In Ext.A2, assignment deed in favour of appellants in favour of A schedule it is specifically stated that the 10 cents assigned to the appellants is excluding the land set apart to meet soil erosion and the 4 feet wide way provided to the property of Sankaran. Thus, Ext.A2 itself shows that B schedule belonged to Madhavi. On her death it has devolved on respondent Nos.1 to 6. Appellants are claiming title and possession of B schedule as Ext.A4, R.S.A.No.105 of 2009 3 gift deed executed by respondent No.7. He claimed that he got B schedule as per an oral transfer from Madhavi. There is no evidence for that, and it is not also shown that value of B schedule was less than Rs.100 so that there could be valid oral transfer. Though appellants have a contention that they were in possession of the B schedule property on the west of A schedule there is no evidence in support of that. The revenue receipts produced by appellants are all for a period after the suit. It is also to be noted that the survey number mentioned in Exts.A4 and B2 series are different. There is no evidence to show that respondent No.7 was in possession of plaint B schedule at any point of time. The recital in Ext.A2 that the 10 cents given to the appellants is excluding the land (B schedule) set apart to meet soil erosion shows that even as on that date the said property was in the possession of Madhavi. There is no material to show that Madhavi or his legal representatives abandoned the B schedule. At any rate mere abandonment would not extinguish title. Commissioner has identified B schedule as 7.5 cents. It is in the above circumstances that first appellate court found against the title claimed by appellants and in favour of the title claimed by respondent Nos.1 to 6. Finding of the first appellate court is based on evidence on record and on a proper appreciation of it. I am unable to say that the finding is without any evidence or that it is perverse. None of the substantial question of law raised by the appellants so arise for decision. As such there is no R.S.A.No.105 of 2009 4 reason to admit the second appeal and issue notice to the respondents. Resultantly the second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/