IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 RSA.No. 862 of 2004() --------------------- AS.97/2000 of PRL.S.C.,THALASSERY OS.506/1994 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS 1,3 AND 4: --------------------------------------------------------------- 1. MOTTANTAVIDA SULEKHA, D/O. AYISSA, AGED 50 YEARS, KANNADIPARAMBA AMSOM, PULLOOPPI DESOM, KANNUR DISTRICT. 2. MOTTANTAVIDA AYISSA, D/O. MARIYAM, AGED 4 YEARS, KANNADIPARAMBA AMSOM, PULLOOPPI DESOM, KANNUR DISTRICT. 3. MOTTANTAVIDA AYAMMAD, S/O. MARIYAM, AGED 44 YEARS, KANNADIPARAMBA AMSOM, PULLOOPPI DESOM, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID (THALASSERY) RESPONDENT(S): RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KANNUR. 2. THE TAHSILDAR, KANNUR, KANNUR DISTRICT. 3. THE VILLAGE OFFICER, KANNADIPARAMBA, KANNUR DISTRICT. BY GOVERNMENT PLEADER SMT.ANNIE PAUL FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.862 OF 2004 --------------------------------------------- Dated 13th July, 2011 JUDGMENT Plaintiffs 1, 3 and 4 in O.S.506/1994 on the file of Munsiff court, Kannur are the appellants. Respondents are the defendants. The suit was filed for permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property and mandatory injunction directing the respondents to receive the basic tax, contending that Tak No.1 of plaint A schedule properties was allotted to Ayissa the mother of first appellant/first plaintiff and Tak No.2 of plaint A schedule was allotted to Mariyam, mother of plaintiffs 2 to 4 under Ext.A1 partition RSA 862/04 2 deed of 1963 and on their death they devolved on the appellants and since then they have been in possession of the properties and paying tax. On 28/10/1994 when appellants approached third respondent to pay the tax, it was refused to be received under the pretext that it is puramboke land. When the appellants attempted to construct a compound wall, it was also prevented. Therefore, a decree for injunction was sought for. Second respondent filed a written statement on behalf of the respondents contending that the land in survey No.67/1 of Pulluppy desom of Kannadiparamba village is having an extent of 69 cents, out of which 25 cents was obtained by the Government by relinquishment, from Parayil Moideen Kutty during 1965 for the purpose of the Health Department and the property was thereafter sub divided and 25 cents was renumbered as RSA 862/04 3 R.S.67/IA and the remaining 44 cents as R.S.67/IB and in the 44 cents, 5 cents is in the possession of one Kallen Chandri, 2 cents in the possession of Preetha, 12 cents in the possession of Khadeeja, 18 cents in the possession of second plaintiff and 7 cents in the possession of first appellant and suit is instituted with ulterior motive to take possession of the Government land and they are not entitled to the decree. 2. Learned Munsiff originally dismissed the suit by judgment dated 14/3/1997. Appellants challenged the judgment before Sub Court, Thalassery in A.S.62/1997. Learned Sub Judge remanded the suit, accepting the prayer of the appellants to adduce further evidence, granting opportunity to both sides to adduce further evidence. Subsequent to the remand no oral evidence was adduced and Exts.A4 to A6 RSA 862/04 4 alone were marked additionally. Though subsequent to the remand additional issue No.5 was framed on title, appellants did not choose to pay the court fee under Section 27(a) of Kerala Court Fees and Suit Valuation Act. Learned Munsiff therefore, held that appellants are not entitled to have a decision on the question on title and the only question is regarding possession. Finding that property obtained under Ext.A1, as per extent is 64 cents and by kol measurements it was more than 90 cents, it was found that appellants did not establish their possession of the plaint schedule properties. Suit was dismissed. Appellants challenged the judgment before Sub court, Thalassery in A.S.97/2000. Learned Principal Sub Judge on re-appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is RSA 862/04 5 challenged in the second appeal. 3. Notice was ordered to the respondents before admission. Respondents appeared and records were called for. Learned counsel appearing for the appellants and the Government Pleader were heard. 4. Though an issue regarding title was framed and as provided under Section 27(a)(ii) of Kerala Court Fees and Suit Valuation Act, appellants are bound to pay court fee on the market value of the properties, they did not pay the court fee. It is in such circumstances, learned Munsiff held that question of title is not to be settled in the suit. Though learned counsel appearing for the appellants vehemently argued that as appellants have proved their title by production of Ext.A4 registration copy of kuzhikkana pattadharam obtained by the predecessors-in-interest of the RSA 862/04 6 appellants and Ext.A1 partition deed by which properties were divided and allotted to predecessors-in-interest of the appellants and Exts.A2 and A5 purchase certificates obtained from the Land Tribunal and contended that when respondents are setting up a case that there was relinquishment of 25 cents and no document was produced to prove any such relinquishment, courts below should have found that appellants have title to the property on the undisputed facts, I cannot agree. 5. From the appeal memorandum preferred in the first appeal, it is clear that before the appellate court, appellants have no case that trial court should have entered a finding on the question of title or that they omitted to pay court fee on the market value of the plaint schedule properties and are to be permitted to pay the court fee. In such RSA 862/04 7 circumstances, appellants are not entitled to have a decision on title in the suit. The only question is whether appellants have established their possession of the plaint schedule properties. 6. Question whether plaintiffs are in possession of the plaint schedule properties is definitely a finding of fact. Trial court originally and subsequent to the remand also found that appellants did not establish their possession of the plaint schedule properties. First appellate court on re-appreciation of the evidence confirmed that factual finding. The factual finding entered by the first appellate court shall be the final, unless courts below omitted to appreciate any of the material evidence on record or appreciation of evidence was perverse. Otherwise, no interference is warranted. RSA 862/04 8 7. On going through the evidence, I do not find that any material evidence was overlooked or there was any misappreciation of the evidence by the courts below much less a perverse appreciation of the evidence. In such circumstances, no substantial question of law is involved. Appeal is dismissed. But it is made clear that as there is no decision on the question of title, dismissal of the suit will not bar the appellants in instituting a suit based on title. M.SASIDHARAN NAMBIAR, JUDGE. uj.