IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 SA.No. 1018 of 2001(Y) --------------------- AS.43/1996 of III ADDL. DISTRICT COURT, KOLLAM OS.10/1993 of MUN-MAGI COURT, PARAVOOR .................. APPELLANT / APPELLANT / DEFENDANT: ------------------------------------------------------------ SOMARAJAN, GOURI SADANAM, KULATHIRAZHIKAM, ERACHERRY, MEENAD VILLAGE, CHATHANNOOR. BY ADVS. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN SMT.M.A.ZOHRA RESPONDENTS / RESPONDENTS / PLAINTIFF: ----------------------------------------------------------------- 1. KALADHARAN, SUKUMARA VILASAM, ERAM, MEENAD VILLAGE, CHATHANNOOR. 2. JYOTHISHMATHI OF -DO- -DO- 3. SASIKALA OF -DO- -DO- 4. CHANDRAMOHAN OF -DO- -DO- 5. PREMCHAND OF -DO- -DO- 6. GAYATHRI OF -DO- -DO- R1 TO R6 BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.V.S.ROBIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, ALONG WITH SA NO. 70 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 1018 of 2001(Y) ORDER ON C.M.P. NO. 314/2002 IN SA. NO. 1018/2001 DISMISSED 10/01/2011 SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID,J. ------------------------------- S.A. NOS. 1018 OF 2001 & 70 OF 2002 ------------------------------- DATED THIS THE 10TH DAY OF JANUARY, 2011 JUDGMENT The substantial questions of law formulated in these appeals are as follows: “a) What is the effect of the documents A1, A2 and A3 as well as the proceedings of the survey party and the thandaper account as evidenced by Ext.A5 in relation to the title and the possession of the property? b) Do the Commissioner's reports establish the continued possession and enjoyment of the property in dispute by the appellant? c) What is the effect and consequences of the documents tendered in evidence on either side?” 2. Plaintiff in O.S.No.9/93 on the file of the Munsiff- Magistrate's Court, Perumbavoor is the appellant in both the appeals. S.A.No.1018/01 is directed against the judgment and decree in A.S.No.43/96 on the file of the III additional District Court, Kollam. The connected appeal S.A.No.70/2002 is directed -2- S.A.Nos.1018/01 & 70/02 against the judgment and decree in A.S.No.42/96 on the file of the same court. The appellant is the sole plaintiff in O.S.No.9/93 and he is the sole defendant in O.S.No.10/93. The defendants in O.S.No.9/93 filed the connected suit O.S.No.10/93 as plaintiffs. O.S.No.9/93 was filed for declaration of the plaintiff's title and possession over the plaint A schedule property and for consequential injunction against trespass. O.S.No.10/93 was filed for perpetual injunction to restrain the defendant from committing trespass, damaging boundaries and from making any further construction on the basement constructed illegally trespassing into the plaint schedule property. Subsequently, the plaint was amended incorporating the prayer for fixation of boundary. The trial court dismissed O.S.No.9/93 and decreed O.S.No.10/93. The decree and judgment passed by the trial court in both the suits were confirmed by the Lower Appellate Court in A.S.Nos.42 and 43/1996. 3. The evidence has been recorded in O.S.No.9/93 and the said suit was treated as the main case. The oral evidence of PWs.1 to 4 and DWs. 1 to 7 was recorded. The documentary -3- S.A.Nos.1018/01 & 70/02 evidence recorded in this case are Exts.A1 to A6, B1 to B9, C1 series, C2 series, C3 and X1. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in O.S.No.9/93, which is the subject matter of S.A.No.70/2002. 4. There are two items of properties, i.e. A and B schedule in O.S.No.9/93. Plaint A schedule is 10 cents of land lying on the east and plaint B schedule is 4 ½ cents lying on the west of plaint A schedule property. The plaint A schedule in O.S.No.9/93 is the plaint schedule in O.S.No.10/93. There is no dispute over the right of the plaintiff in O.S.No.9/93 regarding plaint B schedule property having an extent of 4 ½ cents. The parties claimed title in respect of the property, which is 10 cents of land shown as A schedule which lies on the eastern side of plaint B schedule. The disputed property is comprised in Sy.No.2639 (Resurvey No.146/23) of Meenad Village. The plaintiff claimed title by adverse possession and the defendants by succession. Both parties claimed possession of the above referred 10 cents. The trial court examined the question of title and possession in detail. It -4- S.A.Nos.1018/01 & 70/02 is not disputed that the plaintiff had purchased plaint B schedule property as per Exts.A2 and A3 sale deeds. It is the common case of both parties that the disputed property belonged to Kulathirazhikom tarwad of which the plaintiff and defendants are members. It is not disputed that there has been a partition in the tarwad in the year 1099 ME. Ext.A1 is the partition deed. Plaint A and B schedule property are temple properties belonging to the said tarwad. The plaintiff contended that 52cents over which the family temple is situated along with the disputed 10 cents and other properties were kept in common unpartitioned. The defendants case is that the disputed 10 cents as per Ext.A1 was set apart to the members of the first branch, who were their predecessors. The plaintiff is a successor to the 3rd branch and the defendants are successors to the first branch. 5. It is not disputed by either side that 52 cents of property wherein the family temple is situated was kept in common. The said fact is recited clearly in Ext.A1 partition deed. As per Ext.A1, the property described in the A schedule has been set apart -5- S.A.Nos.1018/01 & 70/02 to the parties 1 to 6 thereto who are the predecessors of the defendants. Relying on the said recitals in Ext.A1 the trial court repelled the contention of the plaintiff that the disputed 10 cents of property was kept in common. The court below perused the recitals in Ext.A1 and rightly observed that Kannan Asan has been given the right of management of the temple and possession of the temple property. Relying on the recitals in Ext.A1 the court below also rightly observed that the right of enjoyment during his life time was reserved to Kannan Asan in respect of the disputed 10 cents and that as per the subsequent partition namely, Ext.B2 among the members of the first branch, Kannan Asan relinquished his right of enjoyment over the properties. Ext.B2 is the partition deed between the members of the first branch in the year 1010 M.E. In Ext.B2 partition deed the disputed 10 cents has been set apart to the share of the defendants' father- Sreedharan. The recitals in page 4 of Ext.B2 would go to show that Kannan Asan was in possession and enjoyment of the properties. The 5th schedule in Ext.B2 was set apart to Sreedharan , who was party No.5 to Ext.B2, including the -6- S.A.Nos.1018/01 & 70/02 disputed 10 cents. The other recitals in Exts.A1 and B2 are mentioned in detail in the judgment of the trial court. The trial court also found that after the death of Kannan Asan and before Sreedharan attained majority, Sreedharan's mother came into possession and enjoyment of the properties including the disputed land. The disputed property was possessed by the mother for and on behalf of the Sreedharan as per the recitals in Ext.B2. In the light of the recitals in Exts.A1 and B2 the court below concluded that the case of the plaintiff that the property including the disputed 10 cents were kept in common and Kannan Asan had right over the property is incorrect. The fact finding court also on evidence found that neither the plaintiff nor his predecessors paid tax to the disputed 10 cents of property nor his predecessors. The court below also disbelieved the version of PWs.1 and 2 regarding the possession and enjoyment of the property at any point of time. The court below also found that the only tax receipt produced by the plaintiff namely, Ext.A6 relates to the temple property and not relating to the plaint schedule property. The defendants had -7- S.A.Nos.1018/01 & 70/02 produced Exts.B3 to B6 and B9 tax receipts to prove the payment of tax in respect of the disputed property. Ext.B3 is the receipt dated 9/10/1114 for having paid land tax by Sreedharan. Ext.B5 is another tax receipt dated 25/2/1951 issued in the name of Sreedharan, who had paid tax to the disputed property. After examining the tax receipts produced, the court below found that as early as in 1114 Sreedharan paid tax for 10 cents as per Ext.B3. He again paid tax in the year 1951 as per Ext.B5, in the year 1977 as per Ext.B6, and in the year 1982 as per Ext.B9. On the basis of the oral and documentary evidence and on a detailed analysis of the facts and circumstances of the case, the court below concluded that the defendants have got title to the disputed 10 cents by succession. After entering such a finding, the court examined the further question as to whether the plaintiff has acquired title by adverse possession. The court below found that the plaintiff could not produce any documentary evidence to prove his right, title or possession in respect of 10 cents of land. The court below disbelieved the oral evidence of PWs.1 to 4 that the plaintiff had -8- S.A.Nos.1018/01 & 70/02 been in possession and enjoyment of the disputed property. The oral evidence of PWs.1 to 4, DWs. 2 to 7 and the documents filed by the respective parties were analysed and examined in detail by the court below. The court below also relied on Ext.A4 proceedings, Ext.X1 file, Ext.A5 copy of the thandaper account, Ext.B6 tax receipt and Exts.C1 to C3. 6. Ext.C1, C1(a) and C1(b) are the commission report, mahazar and rough sketch marked in O.S.No.9/93 and Ext.C2 series and Ext.C3 are marked in O.S.No.10/93. From Ext.C1 to C3 it can be seen that they are very much consistent in regard to the lie of the disputed 10 cents and 4 1/2 cents that lie to the west of it. The fact finding courts also in detail discussed the report and plans submitted by the Commissioner and held that from the broad probabilities of the facts reported by the Commissioner, if as a matter of fact, the plaintiff was holding the disputed property of 10 cents, there was no necessity or occasion for placing the survey stones on the southern ridge of 10 cents and that the very fact that the plaintiff had restricted himself in the matter of making new -9- S.A.Nos.1018/01 & 70/02 constructions very well within the property that belongs to him as per Exts.A1 and A3 also improbabilises and goes a long way in making out the defendants' case. The court below negatived the issue regarding the case set up by the plaintiff in O.S.No.9/93 and positively held that the plaintiff failed to prove that he had acquired title and possession over the disputed property. 7. The above mentioned discussion of the facts, circumstances and evidence in the case would go to show that the question involved in the suits are considered and decided on the basis of the materials on record. The fact finding court concurrently held that the plaintiff in O.S.No.9/93 is not entitled to the relief claimed in the plaint and that the defendants in the said suit, who are the plaintiffs in O.S.No.10/93, are entitled to the relief sought for in the said suit. The findings recorded are solely based on the facts and evidence, which this Court cannot interfere in exercise of the jurisdiction conferred under Section 100 of the CPC. No question of law much less any substantial questions of law arise for -10- S.A.Nos.1018/01 & 70/02 consideration in these appeals. In the result, the appeals fail and accordingly dismissed. No order as to costs. Sd/- HARUN-UL-RASHID, Judge. kcv.