IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 RSA.No. 317 of 2009() --------------------- AS.70/2004 of ADDL.DISTRICT COURT,KOTTAYAM OS.152/2000 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT:APPELLANT/PLAINTIFF ------------------------------------------------- MATHAI S/O. LATE PHILIPOSE CHACKO, PALLIPARAMBIL HOUSE, SREEKANTA MANGALAM, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. E.P.KUNJUMON S/O. LATE PHILIP, PALLIPARAMBIL HOUSE, SREEKANTAMANGALAM, ATHIRAMPUZHA, KOTTAYAM. 2. PAULOSE @ KOCHU, S/O. PHILIP, ENCHIKALAYIL HOUSE, KAIPUZHA, KOTTAYAM. * 3. ANNA D/O. PHILIPOSE CHACKO, (EXPIRED) PALLIPARAMBIL, SREEKANTAMANGALAM, ATHIRAMPUZHA, KOTTAYAM. (* IT IS RECORDED THAT THE APPELLANT AND THE LATE PHILIP( FATHER OF RESPONDENTS 1 AND 2 ) ARE THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDEONT AND THEY ARE ALREADY IN THE PARTY ARRAY AND IT IS DECLARED THAT NOBODY IS TO BE IMPLEADED AS THE LRs OF DECEASED R3 AS PER ORDER DATED 28.7.2009 IN I,A, NO.1617/2009 ) ADV. SRI.ABRAHAM GEORGE JACOB FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 317 of 2009 ---------------------------------------- Dated this the 19th day of August, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. No.70/2004 on the file of the Additional District Court, Kottayam which arises from the judgment and decree in O.S. No. 152/2000 on the file of the Munsiff's Court, Ettumanoor. The suit filed for declaration of plaintiff's title and possession over ½ share in the plaint schedule property and for a permanent prohibitory injunction, was dismissed by the trial court and allowed the counter claim filed by the defendants. The lower appellate court confirmed the findings of the trial court. Hence the second appeal The parties hereinafter referred to as plaintiff and defendants as arrayed in the Suit. 2. It is an admitted fact that the plaint schedule property originally belonged to the Church of South India Trust Association (hereinafter referred to as the Association) It is the plaintiff's case that late Philipose chacko, his father and the grand father of the defendants 1 and 2 , obtained the plaint schedule property from the Association on oral pattom in the year 1121 M.E The said Philipose chacko died intestate on 8.1.1967 leaving behind his sons i.e the plaintiff and his brother late.Philip ( the father of the defendants ) The additional 3rd defendant is the daughter of the said .Philipose Chacko. The plaintiff further pleaded that he and his R.S.A.No. 317 of 2009 -2- brother Philip(deceased) inherited the leasehold right in the plaint schedule property and were in joint possession and enjoyment of the same by paying annual pattom to the Associantion, that when the Kerala Land Reforms Act came into force in the State on 1.1.1970, by which all the right, title and interest of the land owner in respect of all leasehold lands including the plaint schedule property vested in the Government and the right of the land owner is only to receive the purchase price as per the Rules framed under the Kerala Land Reforms Act Subsequently the deceased Philip had purchased the Plaint schedule property from the Association. The plaintiff approached the defendants claiming ½ share over the plaint schedule property. But the defendants refused the request stating that the plaintiff has no right over the plaint schedule property and that the plaint schedule property is not partible. In the above circumstances, the suit was filed by the plaintiff for partition and for separate allotment of ½ share in the plaint schedule property. The plaintiff further submitted that the Association has executed a sale deed No.792/1981 of the Ettumanoor S.R.O in favour of the plaintiff's deceased brother Philip that the same is void abinitio and is not binding upon the plaintiff or the plaint schedule property, that neither the said deceased Philip nor the defendants obtained any right, title or interest in the plaint schedule property by the said sale deed. He also pleaded that the erstwhile tenants were entitled to get purchase certificate from the Land Tribunal and the Association, the land owner to get the purchase price or R.S.A.No. 317 of 2009 -3- the compensation awarded by the Tribunal. According to him, the Association had no right to execute such a document and he is entitled to get the reliefs as prayed for in the plaint. 3. The 1st defendant filed written statement and a counter claim contending as follows:- The suit is not maintainable. The plaint schedule property was never been in the possession of Philippose Chackoand the same was never taken by him from the Association on pattom. He denied the pattom of Rs.1/- per annum The plaint schedule property was taken on pattom by Philip the father of the defendants and he was in possession of the property as tenant. The property was never in the joint possession of the plaintiff and the father of the defendants or after his death, with the plaintiff and the defendants. Plaintiff has no right over the plaint schedule property. Pattom was paid by Philip at the rate of Rs.3/- The property was purchased in the name of the father of the defendants 1 and 2 (decesed Philip) as per sale deed No. 792/1981 after giving 16 times of the fair rent and plaintiff has no right over the plaint schedule property. The plaintiff also purchased 17 Cents of land as per sale deed No.2509/1984 from the Association. If it is found that the plaint schedule property and the property purchased by the plaintiff were in the possession of Philippose Chacko it is to be treated that the property was partitioned among the plaintiff and the father of the defendants 1 and 2 as per the oral partition and the documents were executed accordingly. The plaintiff is having the knowledge of the sale deed in favour of the father of the defendants from R.S.A.No. 317 of 2009 -4- the date of execution itself. From the property obtained as per sale deed by the father of the defendants he had sold 4 Cents to his sister and the remaining extent is in the possession of the 1st defendant as per the document Nos. 3714/1998 and 3713/1998. If the court finds that the plaintiff is having any right over the plaint schedule property, the plaintiff lost title by adverse possession after the date of sale deed No. 792/81 and the plaint schedule property is in the possession of the 1st defendant and his predecessor from 1981 and they were enjoying the same peacefully, continuously without interruption from that period. Plaintiff has no right or ownership over the plaint schedule property and he is not entitled to get declaration of title over the plaint schedule property. The plaintiff has no cause of action against this defendant. The plaintiff is not entitled for any of the reliefs claimed in the plaint. The plaintiff is to be restrained by an order of injunction from entering into the counter claim schedule property , from taking income and from committing any waste therein. 4. No written statement was filed by the 2nd defendant. 5. The additional 3rd defendant remained ex-parte. 6. The plaintiff filed replication reiterating the averments in the plaint. He contended in the replication that the property given to the additional 3rd defendant is from the share of the father of the defendants 1 and 2. According to him the plaint schedule property was in the joint possession of the plaintiff and the deceased father of defendants 1 and 2 R.S.A.No. 317 of 2009 -5- and the 1st defendant is not entitled for the reliefs claimed in the counter- claim. 7. The evidence in this case consists of oral testimonies of PW1 to PW4 and DW1 and Exts.A1, B1 to B5 and X1. 8. The trial court examined the question as to whether the plaintiff is entitled to get ½ share of the plaint schedule property The trial court on evidence held that Ext.A1 is binding on the plaintiff's deceased brother Philip and Ext.B1 is binding on the plaintiff. The trial court noted that nowhere in Ext.X1 it is stated that the the father of the plaintiff transferred his ½ right over the property to the plaintiff and the description of the property given on pattom and that in Ext.X1 will not help the plaintiff to prove that his father was a pattakkaran of Association with respect to the plaint schedule property. At the same time the trial court also noted that if the plaintiff's father had any right over the plaint schedule property, as a heir of his father, nothing prevent the plaintiff from approaching the Land Tribunal and to file an application under Section 72 B of the K.L.R.Act. Since the pattom was paid by Philip and the records are with him the Association assigned the plaint schedule property by way of Ext.A1 and B1 sale deeds to the sons of the late Philippose Chacko. 9. The 1st defendant is also claiming right over the counterclaim schedule property as per Ext.B2 and B3 document executed by his father. He also submitted that his father has the right to transfer his right to others. The trial court held that the transfer of right to 1st defendant by his R.S.A.No. 317 of 2009 -6- father is valid and the 1st defendant is having title over the counter claim schedule property. In the light of the above discussion and in the absence of evidence to prove that the plaintiff has right over the plaint schedule property the trial court held that the plaintiff is not entitled for partition of ½ share over the plaint schedule property or for the injunction as prayed for. The dismissal of the suit and allowing of the counter claim by the trial court and its confirmation by the lower appellate court are in order and on the basis of oral and documentary evidence. I find no reason to interfere with the findings entered by the courts below The plaintiff/appellant has not made out any grounds for invoking this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 317 of 2009 ---------------------------- JUDGMENT 19th August, 2009