IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RSA.No. 1092 of 2010() ---------------------- AS.66/2006 of SUB COURT, HOSDRUG OS.85/2001 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS(APPELLANTS/PLAINTIFFS): ----------------------------------------------------- 1. KARAYIL MARIYUMMA,D/O.LATE ABDULLA AND WIDOW OF LATE BELIKOTH ABDUL RAHIMAN HAJI, R/AT THAIKADAPPURAM IN NILESHWAR VILLAGE, HOSDURG TALUK 671 314. 2. K.KUNHAYISHA, D/O.KARAYIL MARIYUMMA AND BELIKOTH ABDUL RAHIMAN, R/AT THAIKADAPPURAM IN NILESHWAR VILLAGE, HOSDURG TALUK 671 314. 3. K.MUHAMAMEDALI, S/O.KARAYIL MARIYUMMA AND BELIKOTH ABDUL RAHIMAN, R/AT THAIKADAPPURAM IN NILESHWAR VILLAGE, HOSDURG TALUK 671 314. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENT(S)/(RESPONDENTS/DEFENDANTS): --------------------------------------- 1. PATHRA VALAPPIL PARU,WIFE OF KRISHNAN, RESIDING AT THAIKADAPPURAM,NILESHWAR VILLAGE, HOSDURG TALUK 671 314. 2. PATHARA VALAPPIL CHANDRAN, S/O.PATHRA VALAPPIL PARU AND KRISHNAN, RESIDING AT THAIKADAPPURAM,NILESHWAR VILLAGE, HOSDURG TALUK 671 314. 3. PATHRA VALAPPIL JANAKAN, S/O.PATHRA VALAPPIL PARU AND KRISHNAN, RESIDING AT THAIKADAPPURAM,NILESHWAR VILLAGE, HOSDURG TALUK 671 314. R.S.A.NO.1092/2010 4. PATHRA VALAPPIL RAJASHEKHARAN, S/O.PATHRA VALAPPIL PARU AND KRISHNAN, RESIDING AT THAIKADAPPURAM,NILESHWAR VILLAGE, HOSDURG TALUK 671 314. 5. PATHRA VALAPPIL VENUGOPALAN, S/O.PATHRA VALAPPIL PARU AND KRISHNAN, RESIDING AT THAIKADAPPURAM,NILESHWAR VILLAGE, HOSDURG TALUK 671 314. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON 12/10/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1092 OF 2010 ----------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T Concurrent decision rendered by two courts below that the plaintiffs are not entitled to the suit claim for recovery of possession of the plaint property is challenged by them in this second appeal. 2. Appellants/plaintiffs claiming title over the plaint property described, initially, in the plaint schedule as having an extent of 11.5 cents as comprised in R.Survey No.647/1 of Nileshwar Village, but, later, amended and limited to 6.278 cents, alleging trespass over that property and reducing it into possession by the defendants, sought for its recovery in the suit. An extent of 39.25 cents comprising the plaint schedule property was under the enjoyment of one Ibrahim Kunji Haji on kuzhikanom right and he assigned such right in favour of the R.S.A.NO.1092/2010 2 predecessor of the plaintiffs, Bellikoth Abdul Rahman under A1 deed, and, later, under A2 purchase certificate issued by the Land Tribunal, the above said Abdul Rahman got assignment of title over the property, was the case of the plaintiffs. On the death of Abdul Rahman, the property devolved upon the plaintiffs, the legal representatives of Abdul Rahman, and the defendants, who are having properties on the west and north of the above said 37 cents interfered with the possession and enjoyment of the plaintiffs, and, so much so, the plaintiffs had to file a suit previously for a decree of injunction, but, that suit happened to be dismissed after trial. Dismissal of the suit was on the basis of a wrong admission made by the 1st plaintiff, who was examined as a witness in the case, with respect to one of the boundaries of the property scheduled, and, pursuant to such dismissal, the defendants had trespassed upon and reduced into possession a portion of the property of the plaintiffs scheduled in the plaint and hence the present suit is filed for recovery of that property on the strength of title. The defendants resisted the suit claim disputing the title and possession of the plaintiffs R.S.A.NO.1092/2010 3 contending that neither the predecessor nor the plaintiffs ever had any right, possession or interest over the property. It was further contended that a road passing through the property of the plaintiffs had been widened and more extent from the property of the plaintiffs had been taken for the widening of that road. Disputing the allegation of trespass, alleged by the plaintiffs over the property and, further, contending that the suit is not maintainable for the reason that all the legal heirs of Abdul Rahman had not been made parties to the suit, the claim made by the plaintiffs for the reliefs canvassed was impeached as meritless and not allowable by the defendants. 3. On the materials produced by both sides, which consisted of the evidence of the 1st plaintiff as PW1 and that of the 2nd defendant as DW1, A1 to A5 for the plaintiffs and B1 to B9 for the defendants, and C1 report and C2 plan prepared by an advocate commissioner deputed by the court, the trial court came to the conclusion that the claim of title set up by the plaintiffs over the property scheduled in the plaint is not R.S.A.NO.1092/2010 4 acceptable, and the title and possession claimed over such property by the defendants is more probable. Holding that the plaintiffs have miserably failed to prove the right, title and interest over the suit property and the allegations set up as to trespass over such property by the defendants are unacceptable, the suit was dismissed. Plaintiffs challenged the dismissal of the suit preferring an appeal. The lower appellate court, after re- appreciating the materials tendered in the case, concurred with the findings entered by the trial court and confirmed the dismissal of the suit. Concurrent decision so rendered by the two courts is challenged preferring this appeal. 4. Perusing the judgments rendered by the two courts, I find that there is no infirmity whatsoever in the findings concurrently rendered by the courts below for non-suiting the plaintiffs. Recovery of the plaint property described previously as 11.5 cents, but later, amended as 6.278 cents on the basis of the identification made by the advocate commissioner is claimed by the plaintiffs on the basis of their title. Their predecessor had R.S.A.NO.1092/2010 5 title over 39.25 cents by virtue of the assignment of kuzhikanam right by one Beerankutty, who enjoyed such right over the property and, later, A2 purchase certificate was issued by the Land Tribunal upholding the claim of tenancy over that property by their predecessor, is the edifice of the case of the plaintiffs to sustain the title set up over the plaint property, which is claimed to be a portion of the above property trespassed upon and reduced into possession by the defendants after the dismissal of previous suit for injunction instituted by the same plaintiffs. The dismissal of that previous suit was challenged in appeal and second appeal, but the claim of possession by the plaintiffs was found against and the injunction applied for had been negatived. Subsequent to dismissal of the suit, the defendants trespassed upon the plaint property and reduced it into their possession, is the case of the plaintiffs. The trial court, after going through A1 has noticed that it covered three items and all of them together were have an extent of 39.25 cents. The plaintiffs, amending the plaint stated that 4.272 cents had been taken for a road through the above property. It was further alleged that at present, they R.S.A.NO.1092/2010 6 are having possession over 28.7 cents including one cent on the south eastern side as relinquished by a mosque situated on that side. The Commissioner deputed by the court identified the property with reference to survey measurements and title deeds and had reported that the plaintiffs at present is in possession of 29.700 cents in R.Sy.No.647/1E. No documentary evidence was tendered by the plaintiffs to show the relinquishment of one cent in their favour by the mosque as claimed by them, which, according to them, is still under their possession and enjoyment as obtained under such relinquishment. The entire road, which, even on the admission of the plaintiffs, took in 4.272 cents from their property, on the basis of the materials placed, it was found by the court, passed through the property of the plaintiffs. When that be the case, if the property, admittedly, now in possession of the plaintiffs and that of the property taken for the road are added, the extent of the property claimed by plaintiffs will be much higher than what is stated in A1 deed obtained by their predecessor. Plaintiffs have no case that their predecessor got under A1 more extent than what is stated in that deed. One cent R.S.A.NO.1092/2010 7 claimed from a mosque by way of relinquishment remain unsubstantiated. In fact, in evidence, the relinquishment of one cent from the mosque was claimed stating that it was part of the property previously covered by A1 and, therefore, the relinquishment was made by the mosque. So far as the southern boundary of the plaint property also, which was claimed by the plaintiffs as the property of one Bhaskaran, but, identified by the advocate commissioner as the property of one P.V.Krishnan, which was the consistent case of the defendants, the court below has found that the plaintiffs miserably failed to prove that Bhaskaran has got any property to the south of the suit property. On the materials tendered by the plaintiff, the trial court has found that the plaintiffs have not only not proved the identity of the suit property as claimed by them but also miserably failed to establish that it formed part of A1 deed and A2 purchase certificate, on the basis of which, recovery of that property was claimed. The lower appellate court had concurred with the findings formed by the trial court after meticulous consideration of the materials tendered in the case. There is no error or R.S.A.NO.1092/2010 8 impropriety in the concurrent findings so entered by the two courts and the negativing of the claim for recovery mooted by the plaintiffs dismissing their suit does not suffer from any infirmity at all. The appeal does not involve any question of law, leave alone any substantial question of law for receiving it on the file of the court. The appeal is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1092/2010 9