IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RSA.NO. 166 OF 2010() -------------------------------- AS.46/2007 OF SUB COURT, HOSDRUG OS.282/2003 OF MUNSIFF COURT, HOSDRUG .................... APPELLANT/SUPPLEMENTAL RESPONDENT – PLAINTIFF: ------------------------------------------------------------------------------ K.VISWANATH, AGED 47 YEARS, S/O.LATE LINGAPPAYYA, HINDU, U.D.C. IN HEALTH DEPARTMENT IN KARNATAKA STATE, R/AT KOTTEKKENI, KSD TALUK & DISTRICT, PRESENTLY R/AT SREE RAKSHA, KAREMENE, JELLIGDDE, POST BAJAL, BAJAL VILLAGE, MANGLORE TALUK, D.K.DISTRICT, KARNATAKA STATE. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S) RESPONDENTS/DEFENDANTS ---------------------------------------------------------------- 1. T.KARUNAKARAN, AGED 62 YEARS, S/O.P.RAMAN, HINDU, AGRICULTURIST, R/AT PADIKKANAM, CHITHARI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. T.GANESH, AGED 58 YEARS, S/O.P.RAMAN, HINDU, TAILOR, R/AT PADIKKANAM, CHITHARI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 3. T.GANGADHARAN, AGED 49 YEARS, S/O.KUMARAN, HINDU, CARPENTER, R/AT PADIKKANAM, CHITHARI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.166 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of February, 2010 J U D G M E N T --------------------- This Second Appeal arises from the judgment and decree of learned Sub Judge, Hosdurg in A.S. No.46 of 2007 confirming judgment and decree of learned Munsiff, Hosdurg in O.S. No.282 of 2003. Appellant sued the respondents for declaration of title, recovery of possession and mandatory injunction to direct them to remove the unauthorised structures allegedly put up by them in the suit property, described as 69¾ cents. Case of appellant is that the entire property extending 1.40 acres in R.S. No.232/4 belonged to Raman, father of respondents on kuzhikanom right and he purchased jenm right in S.M.P. No.1119 of 1975. A portion of the said 1.40 acres was gifted to respondent No.2 and the remaining 1.18 acres and house was gifted to respondent No.1, but out of the said 1.18 acres he assigned one acre and house to the appellant as per sale deed dated 25.11.1992. Appellant sold 30¼ cents out of the said one acre to one Gangadharan and the remaining extent - 69¾ cents is the suit property claimed to be belonging to the R.S.A. No.166 of 2010 -: 2 :- appellant. He alleged that on 15.6.2002 respondents trespassed into the suit property and reduced a portion of it into their possession and put up structures. Hence the suit. Respondent No.1 admitted sale of one acre to the appellant but claimed that it was without measurement of the property and that at the time of sale by mutual consent physical boundary was fixed and thereafter assignment deed was executed in favour of the appellant. As per physical boundary fixed appellant has title and possession of only the property upto the western compound wall. Allegation of trespass is not true. It is contended that appellant has no title over the disputed property. It is also contended by respondent No.1 that he constructed building in the 18 cents retained by him. Respondent No.2 contended that his property is well bounded by boundaries on all sides. He got 22 cents in R.S. No.232/4 from his father as per document No.2945/1989. Respondent No.3 contended that his father, Raman assigned 30 cents to him as per assignment deed dated 6.11.1985 and he is not aware of other transactions entered into by his father. He is in possession of 30 cents. Trial court found that appellant failed to prove title and possession over the disputed property. First appellate court concurred with the R.S.A. No.166 of 2010 -: 3 :- same. Hence the Second Appeal urging by way of substantial question of law whether finding of the courts below regarding title is legal and correct and whether at any rate courts below ought to have granted a decree in favour of the appellant regarding the property in his admitted possession. It is contended by learned counsel for appellant that findings entered by the courts below are erroneous and at any rate since no relief has been granted in respect of property admittedly in the possession of the appellant, it amounted to licence for the respondents to interfere with his possession. 2. It is not disputed that the total extent of land which Raman, predecessor-in-interest of appellant had in Sy.No.232/4 is 1.40 acres. It has come in evidence that of the said 1.40 acres Raman assigned 30 cents as per assignment deed dated 6.11.1975 in favour of respondent No.3. The said 30 cents has been identified by the Commissioner as plots F1 and F2 in Ext.C4. It is reported by the Advocate Commissioner that respondent No.3 is residing in the tiled house in the said plot. Respondent No.3 has produced Exts.B1 to B6 showing his possession and enjoyment of the 30 cents. Exhibit B8 is the approved plan for construction of building in the name of R.S.A. No.166 of 2010 -: 4 :- respondent No.3. 3. Excluding the said 30 cents what remained with Raman was only 1.10 acres. From the said 1.10 acres Raman settled 22 cents in favour of respondent No.2 in the year 1989. If that be so what remained was only 88 cents at a time respondent No.1 got the property by way of gift though in the gift deed the extent of property was stated to be 1.18 acres. Out of the property respondent No.1 got by way of gift he retained 18 cents and the rest was assigned in favour of appellant. Evidence on record shows that respondent No.1 was not having land at the time he assigned one acre in favour of the appellant. It is not disputed that at the time respondent No.1 assigned one acre to the appellant he retained 18 cents with him and only the remaining portion was assigned to the appellant. Thus the appellant could not have acquired title and possession of one acre. It is not disputed by the appellant also that out of the property he got assignment from respondent No.1, he has already assigned 30¼ cents to Gangadharan. Therefore entitlement of the appellant was far less than what is stated in the plaint schedule. It has come in the evidence of the appellant as P.W.1 that at the time of assignment of property in favour of the R.S.A. No.166 of 2010 -: 5 :- appellant property was not measured nor were there any physical boundary. It is also admitted by P.W.1 that he had not enquired about possession of respondent No.3. He could not even point out the property he claimed in Exts.C2 series and C4. Evidence would show that without measuring the properties a portion of the property within fixed boundary was assigned to the appellant. In that situation appellant can only claim the property within those boundaries and not by the extent stated in the document. In the courts below appellant made a claim for plots E1 and F1 in Ext.C4. Courts below found that plots F1 and F2 formed 30 cents assigned to respondent No.3 in the year 1975 and that claim of appellant for plot E1 also cannot stand. Plot which was admittedly in the possession of appellant was found to be plots B and D1. Regarding that there was no claim by the respondents. 4. In a suit on title it is for the appellant to prove his title. On the evidence on record courts below came to the conclusion that appellant has not succeeded in proving his title over the disputed property. Next argument is that at least for the property in possession of the appellant he should have been granted a decree. Learned counsel for the appellant contends that there is possibility R.S.A. No.166 of 2010 -: 6 :- of respondents trespassing into the property in the admitted possession of appellant. But there is no prayer for injunction made in the plaint. Respondents do not also have any claim over the land in the admitted possession of appellant. On going through the judgments under challenge and hearing learned counsel I do not find any substantial question of law involved in the Second Appeal requiring decision. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv