IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 RSA.No. 913 of 2011() --------------------- AS.111/2010 of SUB COURT,NEYYATTINKARA OS.593/2005 of I ADDL.MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT/DEFENDANT NO.1 -------------------------------------------- MUJEEB RAHMAN, S/O. AHAMMAD, PARSULA HOUSE, PULLORKONAM, VIZHINJAM.P.O., THIRUVANANTHAPURAM DISTRICT-695521. BY ADV. SRI.K.V.SOHAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): 1ST PLAINTIFF & ADDL. 3RD PLAINTIFF -------------------------------------------------- 1. V.M. AHAMMADKHAN, S/O. MAITHEEN PILLAI, AKBAR NIVAS, EZHAKULAM, ARASUMMOODU WARD, KADAVATTARAM DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT-695121. 2. SOUDHA BEEVI, W/O. K.M.SAIDU MOHAMMADKHAN, DAROM HAMDA BHAVAN, VIZHINJAM.P.O., THIRUVANANTHAUPRAM DISTRICT-695521 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.913 of 2011 ............................................ DATED THIS THE 5th DAY OF AUGUST, 2011 JUDGMENT First defendant in O.S.593 of 2005 on the file of First Additional Munsiff Court, Neyyattinkara is challenging the decree for declaration of title to the plaint B schedule property and recovery of possession of D schedule property concurrently granted by the courts below, in this appeal. First plaintiff and additional third plaintiff are the respondents. Plaintiffs instituted the suit for injunction which was subsequently converted to one for declaration of title and recovery of possession. Item No.1 of Plaint A schedule property is 15 cents alloted as item No.2 of A schedule of Ext.A1 partition to the first plaintiff and item No.2 of plaint A schedule property is 15 cents alloted as item No.4 of B schedule of Ext.A1. Plaint B schedule property is the remaining property of plaint A schedule properties, excluding three cents alienated and plaint C schedule property is a strip of land having an extent of ten cents which is part of item No.2 of plaint A schedule property having an extent of 10 cents being its southern rsa 913/2011 2 portion and plaint D schedule property is a portion of plaint C schedule property having an extent of 9.809 cents, allegedly trespassed and reduced into possession by the appellant. Plaint schedule property admittedly originally belonged to Late Maitheen Pillai. On his death, the legal heirs divided the property under Ext.A1 partition deed. Second defendant Kunsan Beevi, who is entitled to a share did not execute Ext.A1. Therefore F schedule therein was alloted to her share. As she was not a signatory, it was stated in Ext.A1 that it is a gift and Ext.A3 settlement deed was executed as a gift in respect of F schedule therein. The plaintiffs would contend that they have title to the plaint B schedule property being the remaining property excluding 3 cents of plaint A schedule properties and plaint C and D schedule properties are part of the plaint B schedule property and defendants including the appellant have no manner of right or title to that property. As plaint D schedule property was in the unlawful possession of the appellant, plaintiffs sought a decree for recovery of possession of plaint D schedule property. The appellant resisted the suit contending that the property which was in possession of Kunsan Beevi was not the F schedule shown rsa 913/2011 3 in Ext.A1 partition deed and Kunsan Beevi was in possession of 10 cents, bounded by well defined boundaries on all sides and the property in possession of Kunsan Beevi was the one shown in Ext.B1, and it was assigned in favour of appellant on 29.6.2005 by Ext.B2 sale deed 1481/2005 and therefore appellant has title to the property and respondents are not entitled to the decree. 2. Learned Munsiff on the evidence found that it was F schedule which was alloted to second defendant the assignor of the appellant and the property which could be claimed by the appellant is only F schedule to Ext.A1 and plaint A schedule properties were alloted to the share of plaintiffs 1 and 2 under Ext.A1 and therefore they have title to the property. Learned Munsiff also found that plaint C and D schedule properties are part of plaint B schedule property alloted to respondents under Ext.A1 partition deed excluding the alienated three cents and granted a decree for declaration of title of the plaintiffs to plaint B schedule property. Decree for recovery of possession of plaint D schedule property from the appellant was also granted. A decree for recovery of possession of plaint D schedule property viz plot rsa 913/2011 4 BCEGR as marked by the Commissioner in Ext.C2(a) plan was also granted. Appellant challenged the decree and judgment before Sub Court, Neyyattinkara in A.S.111 of 2010. Learned Sub Judge, on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that as is clear from Ext.A1, properties were orally divided by the legal heirs of Maitheen Pillai much earlier to the execution of the partition deed respective sharers were in possession of the respective plots and under Ext.A1 partition deed, the properties which were being enjoyed by the respective sharers pursuant to the earlier partition, were shown in separate schedules and alloted to the different sharers and though F schedule was alloted thereunder to the second defendant, the property which was in the possession of the second defendant was not the property described in the F schedule to Ext.A1, but the property shown in Ext.B2 and therefore courts below were not justified in holding that appellant has no title to the plaint D schedule property. Learned counsel rsa 913/2011 5 would argue that when Ext.A1 establishes that the properties were divided earlier under an oral partition and respective sharers were in possession of their respective shares and second defendant was not a party to Ext.A1 partition deed and she was wrongly alloted another property under F schedule, her right to the property which was in her possession under the earlier partition will not be affected by Ext.A1 and therefore the decree granted by the courts below is not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Ext.A1 partition deed was executed on 27.4.2005 subsequent to the death of Maitheen Pillai, by the legal heirs who inherited the properties. It is admitted case that second defendant is also entitled to a share. Though the property shown in F schedule was alloted to her, she had not executed Ext.A1. The argument of the learned counsel could have been accepted if second defendant had not accepted Ext.A1 partition deed and contended that under the oral partition she was in possession of the ten cents assigned in favour of the appellant under Ext.B2 sale deed or in Ext.B2 she declared that though under Ext.A1 partition deed rsa 913/2011 6 the property shown in F schedule was alloted to her, it was not the property which was in her possession and the property in her possession is being assigned to the appellant. But that is not the case. A copy of Ext.B2 assignment deed executed by the second defendant made available by the learned counsel, unambiguously establish that it was accepting Ext.A1 partition deed and reiterating that the right obtained over the property described in F schedule alloted to her, Ext.B2 assignment deed, the sale deed was executed. Therefore, when the only right available and claimed by the appellant is the right obtained under Ext.B2, it is not open to the appellant to contend that the property which was obtained by the second defendant was not the property shown in F schedule of Ext.A1 but the property covered under Ext.B2. Though the property shown under Ext.B2 is different, appellant could claim right or title to that property, only if his assignor has title to the property so assigned. When Ext.B2 assignment deed establishes that the title of the assignor is only over the property shown in F schedule to Ext.A1 partition deed, as rightly found by the courts below, appellant cannot claim title to any other property, except F schedule to Ext.A1, which is not the property rsa 913/2011 7 claimed by the appellant. As courts below on the evidence entered a factual finding that plaint B schedule property is the remaining property described in plaint schedule properties excluding the three cents assigned under Ext.A2, obtained by the respondents under item No.2 of A schedule and item No.4 of B schedule of Ext.A1 partition deed the finding of the courts below that respondents have title to plaint B schedule property is perfectly correct. Courts below also found that plaint C schedule property is part of plaint B schedule property and plaint D schedule property in the possession of the appellant is part of the plaint C schedule property. Hence the decree for declaration of title and recovery of possession granted is perfectly legal and correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk