IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 SA.No. 193 of 2003() ------------------------- AS.102/1996 of SUB COURT, PAYYANNUR OS.275/1994 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT(S): RESPONDENTS IN THE 1ST APPEAL/DEFENDANTS: ------------------------------------------------------- 1. THE CHIEF SECRETARY, REP. BY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE SECRETARY, BOARD OF REVENUE, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, KANNUR. 4. THE TAHSILDAR, TALIPARAMBA. BY GOVERNMENT PLEADER SRI.RAVIKRISHNAN RESPONDENT(S): APPELLANT IN THE 1ST APPEAL/PLAINTIFF: ----------------------------------------------------- * K.P.KARTHIYANI AMMA, W/O. LATE V.P.RAGHAVA PODUVAL, PUTHIYA VEEDU, KOKKANISSERI, PAYYANNUR. (DIED) ADDL. R2 TO R5 IMPLEADED. 2. KULAMBATH PUTHIYAVEETTIL VIMALA, D/O. KARTHIYAYANI AMMA, AGED 52 YEARS, PAYYANNUR AMSOM, KOKKANISSERI DESOM, THALIPARAMBU TALUK, KANNUR DISTRICT. 3. MURALEEDHARAN, S/O. KARTHIYAYANI AMMA, AGED 48 YEARS, PAYYANNUR AMSOM,KOKKANISSERI DESOM THALIPARAMBU TALUK, KANNUR DISTRICT S.A. NO.193/2003 4. PRADEEP, S/O.KARTHIYAYANI AMMA, AGED 45 YEARS, PAYYANNUR AMSOM, KOKKANISSERI DESOM, THALIPARAMBU TALUK, KANNUR DISTRICT. 5. RATHEESH, S/O.KARTHIYAYANI AMMA, AGED 42 YEARS, PAYYANNUR AMSOM, KOKKANISSERI DESOM, THALIPARAMBU TALUK, KANNUR DISTRICT. *SUPPLEMENTAL R2 TO R5 ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS AS PER ORDER DTD. 30.6.2009 IN IA. 1314/2009. ADV. SRI.P.M.MUHAMMED RAHAZ SRI.MANSOOR.B.H. SRI.P.M.SAJI SRI.GHOSH YOHANNAN SRI.P.M.SAJI SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ------------------------ S.A.No.193 Of 2003 ---------------------- Dated this the 8th day of September, 2010. J U D G M E N T The defendants in O.S.No.275 of 1994 of the Munsiff Court, Payyannur are the appellants. The appeal is directed against the judgment and decree in A.S.No.102 of 1996 of the Sub Court, Payyannur. Suit was filed for a declaration of title over the plaint schedule property, for mandatory injunction to register the plaint schedule property in the name of the plaintiff, to collect revenue and also to restrain the defendants 3 & 4 by way of permanent prohibitory injunction, from converting and registering the plaint schedule property to revenue puramboke or in any way disturbing the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. The trial court held that the plaintiff has failed to prove the title over the plaint schedule property and therefore the suit was dismissed. The lower appellate court reversed the findings of the trial court and decreed the suit as prayed for. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. S.A.No.193 Of 2003 ::2:: 2. It is the plaintiff's case that the plaint schedule property along with a larger extent originally belonged in jenm to the tarawad of the plaintiff. The members of the tarawad agreed to partition the tarward property by virtue of a registered udambadi karaar No.1350/1898. Ext.A1 is the said partition karaar. Subsequently, in the year 1909, the properties allotted to the thavazhi of the mother of the plaintiff was partitioned. Ext.A2 is the said partition deed. As per Ext.A2 the tarawad properties were divided into A & B schedule properties setting apart B schedule property to the thavazhi of the mother of the plaintiff. Ext.A3 is the partition deed in which subsequent partition was entered into between the members who were the parties to Ext.A2 partition deed. By Ext.A3 partition deed, the property covered by B schedule in Ext.A2 were partitioned among the members of the thavazhi retaining items 8 & 9 of B schedule un-partitioned. According to the plaintiff thereafter the rights of the other co-owners of the un-partitioned property were released to the plaintiff and her unnamed child as per Ext.A4 release deed. After the death of the said child the plaintiff became the absolute S.A.No.193 Of 2003 ::3:: owner of the property. Ext.A4 is the release deed dated 28.6.1958 executed in favour of the plaintiff and others. The first item in Ext.A4 was acquired by the Government for establishing Government High School, Payyannur. Item No.2 in Ext.A4 is the plaint schedule property. The suit has been filed consequent to the passing of Ext.A5 order by the Sub Collector, Thalassery, rejecting the application filed by the plaintiff for getting un- assessed land registered in the name of the plaintiff. The plaint schedule property having an extent of 18 cents is comprised in R.S.No.71/19 of Kokkanisseri desom. Assistant Collector, Thalassery rejected the application for registration and directed the Thahsildar for registering the land as revenue puramboke. The Assistant Collector observed that the land has importance for being used for public purpose in future, that the property is not required for beneficial enjoyment of the applicant because the property is not lying adjacent to any other land in the possession of the applicant. 3. The defendants filed written statement denying the averments in the plaint and prayed for dismissal of the suit. The S.A.No.193 Of 2003 ::4:: defendants in the written statement supported the order passed by the Assistant Collector and contended that the plaintiff has no legitimate claim over the land in question and therefore the declaration prayed for is not allowable. 4. The lower appellate court rightly observed that the plaintiff has to establish title over the plaint schedule property in order to succeed in the present suit. Ext.A2 is the registered partition deed of the year 1909 by which the properties of the tarawad were partitioned. Ext.A1 shows that prior to Ext.A2 partition deed in the year 1999, the members of the tarawad agreed to partition the property by virtue of a udambadi karaar. Ext.A1 is the said registered udambadi karaar of the year 1898. Ext.A2 partition deed shows that the tarawad properties were divided into A & B schedule setting apart B schedule to thavazhi members which include mother of the plaintiff. By Ext.A3 partition deed the above said B schedule properties were divided among the members of the thavazhi. Items 8 & 9 in Ext.A3 partition deed were set apart in common. The plaintiff's case is that the rights of the other co-owners over the common S.A.No.193 Of 2003 ::5:: properties were released to the plaintiff and her unnamed child as per Ext.A4 release deed. The plaintiff's case is that she has absolute possession over the plaint schedule property after the death of the said unnamed child. It has also come out in evidence that the first item in Ext.A4 was acquired by the Government for the purpose of establishing Government High School, Payyannur. Item No.2 in Ext.A4 is the plaint schedule property. 5. Plaintiff claimed that she had effected improvements in the plaint schedule property. The commissioner deputed reported that there are improvements such as three yielding coconut trees aged about 40 years, ten coconut saplings aged about 1½ years and a mango tree aged about 7 years and plantains in the property. The commissioner also reported that there is a pond on the north-western side of the property which takes in 4 cents of land. The trial court held that the plaintiff failed to identify the plaint schedule property. The said finding was reversed by the lower appellate court. The lower appellate court held that the commissioner had identified it with the S.A.No.193 Of 2003 ::6:: assistance of a village assistant, on the basis of the description given in the plaint and with the help of the parties to the suit. The commissioner reported that the plaint schedule property is comprised in R.S.No.71/9 of Kokkanissery desom and the extent is 17 cents. The lower appellate court discussed the materials on evidence and observed that the plaint schedule property is demarcated by the boundary stones and by old compound walls on four sides. The lower appellate court also noticed that the defendants have not filed objections to the commissioner's report. The lower appellate court after examining the documents of title and commissioner's report held that the records would prove the exact lie of the plaint schedule property and its area. The lower appellate court also found that there is no dispute with regard to the four boundaries of the plaint schedule property as revealed from Ext.C1 and that the defendants have not filed objections to the commissioner's report. 6. Exts.A6 & A7 also throw light on the claim of the title over the plaint schedule property. The lower appellate court examined and appreciated Exts.A6 & A7 documents. Ext.A6 S.A.No.193 Of 2003 ::7:: relates to the transaction of the property lying on the eastern side of the plaint schedule property and boundary description of Ext.A6 property on the western side of Ext.A6 property wherein R.S.No.71/9 is situated. The commissioner also reported that the very same person is the owner of the property lying on the eastern side of the property. Ext.A7 report of the Thahsildar would also show that the plaintiff is in possession of the plaint schedule property. In Ext.A7 report, the Thahsildar has requested the superior officer to consider the request of the plaintiff to register the land after deleting one cent of land being used as a footpath. The lower appellate court also relied on the documents namely, Exts.A1 to A4 in order to find that the plaintiff has got legally sustainable claim over the plaint schedule property. The lower appellate court held that Exts.A1 to A4 when taken into consideration, it can be found that the appellant has succeeded in proving title over the plaint schedule property. The lower appellate court also observed that when the plaint schedule property is left as a unregistered land at the time of survey and resettlement, it will not dis-entitle the plaintiff for getting her title S.A.No.193 Of 2003 ::8:: declared as she has proved her title over the plaint schedule property by adducing acceptable evidence. The lower appellate court therefore held that the appellant is entitled to declaration of title and consequential injunction as prayed. 7. The trial court did not appreciate the evidence on record in the right perspective. The trial court ignoring Ext.C1 report and the several old documents produced by the plaintiff held that without a survey plan and proper identification of the property, the title over the plaint schedule property cannot be declared. The lower appellate court has stated reasons in order to find that the plaint schedule property is identified by the commissioner. The lower appellate court accepted the report of the commissioner and observed that there is no serious dispute regarding the identity of the plaint schedule property. In fact the defendants have not filed objection to the commissioner's report who identified the property with the assistance of the village assistant and survey records. The lower appellate court entered the findings regarding the identity of the property and title on the basis of the documentary evidence adduced by the parties and S.A.No.193 Of 2003 ::9:: the commissioner's report. The findings recorded are purely based on facts, evidence and circumstances. This Court is of the view that the appellants have not made out any sustainable ground for interference under Section 100 of the Code of Civil Procedure. No question of law muchless any substantial question of law arises for consideration in the second appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-