IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 SA.No. 582 of 1998(C) --------------------- AS.59/1993 of SUB COURT, KOZHIKODE OS.853/1989 of PRL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT(S)/RESPONDENT/DEFENDANT :- ---------------------------------------------------------------- VELLATHAZHATH THAMASIKKUM PORAYIL MOHAMMAD, S/O.MOIDEENKUTTY, RAROTH AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.M.RAJAN RESPONDENT(S)/APPELLANT/PLAINTIFF :- -------------------------------------------------------------- MOOSA, S/O.AKKIRI PARAMBATH USSAIN, SECRETARY TO THE IQMANNA, ISLAM JAMA ATH COMMITTEE FOR RAJA UL ULUM MADRASSA, RAROTH VILLAGE, KOZHIKODE. ADV. SRI.C.VATHSALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt P.BHAVADASAN, J. ----------------------------- S.A. No.582 of 1998-C --------------------------------- Dated this the 30th day of June 2011 J U D G M E N T The defendant in O.S.No.853 of 1989 before the Prl. Munsiff-I Court, Kozhikode, who suffered decree at the hands of the lower appellate court is the appellant before this Court. The parties and facts are herein after referred to as they are available before the trial court. 2. According to the plaintiff, plaint A schedule property belonged to one Kutti Mammi Haji. Plaintiff would allege that he and his wife had dedicated two coconut trees by way of an oral wakf to the plaintiff Madrassa. These two coconut trees are shown as B schedule in the plaint. They would claim that the possession of the above coconut trees were handed over to the committee on the date of creation of the wakf and ever since then the committee had been in possession and enjoyment of the coconut trees. They have S.A. No.582 of 1998-C -: 2 :- numbered the same as M-230 and M-231. Plaintiff is taking usufructs from the trees since then. The defendant had no manner of right over the said trees. Since the defendant interfered with the right of plaintiff, the suit had been laid by the plaintiff. 3. The defendant resisted the suit pointing out that he obtained 10 cents of land as per Ext.B1 deed dated 20.7.1979 from Kutti Mammi Haji. On the same day, Kutti Mammi Haji had assigned the property as per Ext.B2 to another person. It is stated that Kutti Mammi had never dedicated the coconut trees in the defendant's property to the plaintiff by way of an oral wakf. The allegations that the coconut trees were numbered by the plaintiff and they have taking usufructs from the trees were denied. No coconut trees in the defendant's property were dedicated as per Ext.B1 to the plaintiff. He, therefore, prayed for dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs.1 and 2 and documents marked as Exts.A1 S.A. No.582 of 1998-C -: 3 :- to A16 from the side of the plaintiff. The defendant had DW1 examined and Exts.B1 and B2 marked. Exts.C1 and C2 were the Commissioner's report and plan. 5. The trial court, on evaluation of the evidence, came to the conclusion that there is no proper evidence to show that the two trees claimed by the plaintiff standing in the property of the defendant had been dedicated to the wakf. Accordingly, the suit was dismissed. 6. Disappointed plaintiff carried the matter in appeal as A.S.No.59 of 1993 before the Sub Court, Kozhikode. The lower appellate court formed the opinion that the reasons given by the trial court to disbelieve PW2 were not acceptable and going by the evidence, the plaintiff had proved his case. Accordingly, the trial court decree reversed and decree was granted in favour of the plaintiff. That brings the defendant before this Court. 7. Notice is seen issued on the following questions of law raised in the second appeal. A) In the absence of evidence even regarding the S.A. No.582 of 1998-C -: 4 :- user by the plaintiff whether the finding of the lower appellate court that there is a Wakf could be sustained under law? B) Whether the principle of law laid down by the decisions referred to by the lower appellate court is applicable to the facts and circumstances of the case. 8. The learned counsel for the appellant contended that the lower appellate court was not justified in reversing the judgment and decree of the trial court and had not considered all the aspects of the case in its proper perspective. The lower appellate court has not adverted to recitals in Exts.B1 and B2. The recitals would clearly show that Ext.B1 did not contain any recital regarding the dedication of the coconut trees unlike in Ext.B2. No reason had been offered by the plaintiff for this omission and that according to the counsel should clinch the issue. The learned counsel also contended that the lower appellate court was not justified in simply going by the evidence of PW2 without S.A. No.582 of 1998-C -: 5 :- adverting to other materials on record and come to the conclusion that the case of the plaintiff is true. 9. Learned counsel for the respondent submits that the commissioner's report as well as the documents produced by the plaintiff would show that the numbers M-230 and M- 231 have been allotted to the two coconut trees were noticed by the Commissioner and that proves the case of the plaintiff. 10. Having heard on both sides, it is difficult to accept the judgment and decree of the lower appellate court. Of course, PW2 says about dedication but he was not sure about the details. In one portion he says that it was one tree dedicated to the committee and in another portion he says that two trees were dedicated. The Commissioner has noticed that there were two coconut trees standing on the property of the defendant and they were numbered as M-230 and M-231. 11. Further it has to be noticed that Ext.B1 is a deed executed by Kutti Mammi Haji in favour of the defendant and it does not contain any recital to the effect that any of the coconut trees standing in the property and has been S.A. No.582 of 1998-C -: 6 :- dedicated to the wakf. It has also to be noticed that on the same day Kutti Mammi Haji executed Ext.B2 sale deed in favour of Mohammad wherein there is a specific recital of the coconut trees dedicated to the wakf. In fact, in Ext.B2 it has mentioned that there are three coconut trees, but going by the evidence adduced by the plaintiff there is one coconut tree in that property dedicated to the wakf. 12. The above inconsistencies in the evidence have not been taken note of the lower appellate court. Moreover, the plaintiff has not produced any records to show the dedication of the two coconut trees mentioned in the plaint. The trial court has considered the issue in detail and evaluated the evidence also. The trial court found it difficult to place reliance on the evidence of PW2 and the commission report to hold in favour of the plaintiff. There were other materials which created a serious doubt regarding the identity of the item claimed by the plaintiff. Those items of evidence which were disarmed by the trial court could have simply ignored by the lower appellate court. The finding of the trial court could S.A. No.582 of 1998-C -: 7 :- be characterised as perverse or unwarranted by the evidence on record. The trial court has given reasons as to why it did not accept the oral evidence tendered by the plaintiff. The plaintiff was not able to produce relevant documents also. 13. Therefore, this Court is unable to uphold the impugned judgment and decree. Accordingly they are set aside and judgment and decree of the trial court are restored. There will be no order as to costs. In the result, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and that of the trial court are restored. There will be no order as to costs. P.BHAVADASAN, JUDGE. Jvt