IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 SA.No. 542 of 1999(F) -------------------------------- AS.NO. 44/1996 of SUB COURT, KOYILANDY OS.NO. 193/1990 of MUNSIFF COURT, KOILANDY .................... APPELLANT(S): ------------------------ 1. PARAMBATHKANDY PADMANABHA KURUP, S/O.LAKSHMY AMMA NOW RESIDING AT AMBALAKANDY ALIAS, MADATHIL PARAMBA AVITANELLUR, AMSOM DESOM, QUILANDY TALUK. 2. SOUDAMINI AMMA, W/O.PADMANABHA KURUP, RESIDING IN THE ABOVE HOUSE. BY ADV. SRI.R.K.VENU NAYAR RESPONDENT(S): -------------------------- * 1. NARAYANAN NAMBUDIRI, S/O.KESAVAN NAMBUDIRI, CHAIRMAN, AVITANELLUR DEVASWOM, AMBALAPUTHOORILLATH, AVITANELLUR AMSOM DESOM, QUILANDY TALUK. (DIED). * ADDL.R2 IS IMPLEADED * ADDL.R2: NIDHISH.P.M., AGED 32 YEARS, S/O.NARAYANA KURUP, CHAIRMAN, AVIDANELLUR LAKSHMI NARAYANAN TEMPLE, NADUVANNOOR. KOYILANDY TALUK, KOZHIKODE DISTRICT. * ADDL.R2 IS IMPLEADED BEING THE PRESENT CHAIRMAN OF AVIDANELLUR LAKSHMI NARAYANAN TEMPLE, ON THE DEMISE OF R1, THE PREVIOUS CHAIRMAN, AS PER ORDER DATED 8/2/11 IN I.A.NO.275/11. ADDL.R2 BY ADV. SRI.P.V.KUNHIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.542/1999 ORDER ON C.M.P.NO.1457/1999 IN S.A.NO.542/1999 DISMISSED 08/03/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No. 542 of 1999 --------------------------------- Dated this the 8th day of March, 2011 JUDGMENT Defendants in O.S.No.193/1990 before the Munsiff's Court, Quilandy, who suffered a decree at the hands of the lower appellate court are the appellants. The parties and facts are hereinafter referred to as are available before the courts below. During the pendency of the appeal the original respondent died and his legal heirs brought on the party array. 2. The first plaintiff is the chairman of the Avidanallur Temple Devaswam Trust Board and second plaintiff is a member in the said board. The plaint schedule property comprised in R.S.No.45/2 has been in the possession of the Devaswom. It is averred in the plaint that there was a pond in the property which was used by the Shanthi of the temple. It is a small pond in the suit property and the temple pond is nearby. Alleging that defendants have trespassed into the suit property, the suit was laid for recovery of possession and other reliefs. 3. The defendants resisted the suit. They traced title to the suit property as per Exts.B1, B3, B4 and B20. The contention was that suit property were outstanding with others and ultimately it has come to devolve on the defendants. The plaintiffs have no manner of right S.A.No. 542 of 1999 2 over the suit property and it absolutely belonged to the defendants. They have put up constructions and made improvements in the property and they are residing in the property. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A5 from the side of the plaintiff. Defendants had DWs 1 to 4 were examined and documents marked as B1 to B22. Exts.C1 to C5 are the commissioner's report and plan. The trial court on an appreciation of the evidence found that plaintiffs were unable to establish their case and accordingly dismissed the suit. The plaintiffs carried the matter in appeal as A.S.44/1996 before the Sub Court, Quilandy. The lower appellate court on a re- evaluation of the evidence found that the plaintiffs have been successful in establishing the title to the suit property and the defendants were not able to establish their title to the suit property and accordingly reversed the judgment and decree of the trial court and decreed the suit. Hence the second appeal. 5. Notice is seen issued on the following substantial questions of law: 1. In the judgment and decree of the appellate court restraining the appellants from entering/trespassing into the suit property in accordance with law since the suit as S.A.No. 542 of 1999 3 decreed was one recovery of possession on the strength of title and appellants are found to be residing in the suit property. 2. Is not the suit barred by limitation since it is not established that it is Devaswom property coming within the ambit of Hindu Religious and Charitable Endowment Act 1951. 3. Is not the judgment and decree against presumption under Section 90 of the Evidence Act in respect of the document Ext.B1 dated 20.01.1940 which refers specifically to an earlier document executed in 1926. 6. The learned counsel appearing for the appellants pointed out that the lower appellate court was in error in upsetting the judgment and decree of the trial court without justification. It is pointed out that the plaintiff relied solely on Ext.A5 the Adangal extract for the properties to prove title of the Devaswom. On the contrary, the defendants have produced several documents relating as far as 1926 which would show that the property involved in this suit has been outstanding with strangers and Devaswom was never in possession of the same. Pattayam has also been obtained for the suit property. Reference was also made to the commissioner's report which stated that the Devaswom had no property in survey No.45/2. There was absolutely no evidence produced by the plaintiffs to show that the S.A.No. 542 of 1999 4 Devaswom had title to the suit property. The learned counsel emphasized that being a suit on title the burden was entirely on the plaintiffs to prove the title and plaintiff could not succeed on the weakness of the defendants case. 7. Per contra, the learned counsel appearing for the respondents pointed out that the suit property claimed by the defendants is not comprised in survey No.45/2 and in spite of these specific contention there was no attempt from the side of the defendants to get the property identified and which was covered by several documents. The trial court had omitted to note these vital aspects and failed to consider documents of title of the plaintiffs. It is emphasized that one cannot ignore the entries in the Adangal register and Exts.A4 and A5 clearly shows that the old survey number of the properties is that 24/2 and re-survey No.45/2. A reference to the documents produced by the defendants shows their property in old survey No.24/3 and re- survey number of the property is 44/1A. No attempt was made by the defendants either to show that corresponding re-survey number either in 45/1 or 2. The lower appellate court has taken note of these facts and on that basis the suit was decreed. It is contended that the finding of the lower appellate court was on the basis of appreciation of the evidence in the case and it is essentially a question of fact. No substantial question of law arises for consideration in the second S.A.No. 542 of 1999 5 appeal. 8. It is no doubt true that defendants have produced most of the documents to establish the right over the suit property. It is also true that as far as the plaintiffs are concerned they have produced only Ext.A5 which is the extract of the adangal register of the Avidanellur amsom. That shows that in Re-survey Nos.45/1, Devaswom on 1.49 acres of land and 45/2 Devaswom was on 17 cents of land. Defendants also claim title to the suit property on the basis of Exts.B1, B3, B4 and B20. The commissioner report shows that there is a hut in the property and the defendants are residing there. 9. The residence of the defendants in the suit property is highlighted as a clinching aspect regarding the right of the defendants in the suit property. The defendants also stated that they had made improvements in the property and taking usufructs there from. 10. The plaintiff would say that the property if at all any obtained by the defendants is not in survey No.44/1 or 2 but even going by the document it is in re-survey No. 44/1A. 11. Therefore, it can be seen that the real issue was the identity of the property. The identity of the property obtained by the Devaswom and the identity of the property obtained by the defendants as per Exts.B1, B3, B4 and B20 had to be delivered. It is interesting to note that while the extent shown in Ext.B1, B3 it is B4 is S.A.No. 542 of 1999 6 12 cents and 18 cents to B20. The boundaries remains the same. What is significant is that the old survey No. is shown as 24/3 and re- survey no is shown as 44/1A. It is surprising to note that there was no attempt from the side of the defendants to get properties covered by their documents identified by the commissioner. The definite stand taken by the Devaswom was that the defendants did not have property in 45/1 or 2 and their property was elsewhere. It is significant to notice that the Pattayam obtained is also with respect to land in 44/1A. The defendants could have got at least co-relation register pointed to establish that their property in fact falls either 45/1 or 2. These facts persuaded the lower appellate court to came to the conclusion that defendants property is elsewhere. This finding is essentially based on the evidence on record and cannot be said to be erroneous. These findings of the lower appellate court are neither perverse nor unwarranted by the evidence available in the case. The result is that no substantial questions of law which arises for consideration in the second appeal. The second appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE. ln