IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 795 of 1998(C) -------------------------------- AS.3/1991 of PRINCIPAL SUB COURT, PALAKKAD OS.186/1979 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S): APPELLANT/PLAINTIFF ---------------------------------------------------------- PREMAKUMAR, BY MUKTYAR K.N.CHAMIYAR, S/O. NAPPAN, MANALI, KOPPAM AMSOM, PALAKKAD TALUK. BY ADVS. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE SRI.T.P.ELDHOSE SRI.M.HARISHARMA SRI.D.NARENDRANATH RESPONDENT(S): RESPONDENTS 2 TO 11 & DEFENDANTS 2 TO 4 /LEGAL ---------------------------- RESPONDENTS OF D1. 1. CHAMI, S/O. CHRUKUTTY. 2. KRISHNANKUTTY, S/O. CHERUKUTTY. 3. RAJU, S/O. CHERUKUTTY. 4. PARU, W/O. LATE KUPPANKUTTY. 5. GOPALAKRISHNAN, S/O. LATE KUPPANKUTTY. 6. PREETHA, D/O. KUPPANKUTTY. 7. GEETHA, D/O. KUPPANKUTTY. 8. VIJI, D/O. KUPPANKUTTY. 9. PRASAD, S/O. LATE KUPPANKUTTY. 10. PRAJEETHA, D/O. KUPPANKUTTY. THE RESPONDENTS ARE RESIDING AT KURUPPATH HOUSE, KALLEPPULLY AMSOM, PALAKKAD TALUK. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON 05/08/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 795 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2010. JUDGMENT The plaintiff, who was non-suited by the courts below is the appellant. 2. The suit was one for recovery of 31 cents of land, which according to the plaintiff had been trespassed upon by the defendants and reduced into their possession. The plaint schedule property along with other items of properties were obtained on verumpattom by the plaintiff's grandfather Nappan and the father of the defendants namely Cherukutty. It is claimed that there was oral partition in the year 1952, whereby plaint A schedule properties were set apart to Nappan and the B schedule properties were set apart to Cherukutty. Ever since the partition, the respective parties have been in absolute possession and enjoyment of the properties set apart to them. The plaintiff's father Chamiyar and Pazhanan are the children of Nappan. In S.A.795/1998. 2 the year 1959, partition was effected between Nappan and his children Pazhanan and Chamiyar in respect of all the family properties belonging to them as per Ext.A5 partition deed dated 4.3.1959. It is claimed that Nappan executed Ext.A6 gift deed in favour of Pazhanan and Chamiyar. Thus Pazhanan and Chamiyar were enjoying plaint A schedule properties. It is alleged that defendants tried to trespass into some of the properties gifted to Chamiyar and Pazhanan, which led to filing of O.S. 154 of 1974 before the Munsiff's Court, Palghat. The property which was involved in that suit is C schedule in the present suit. The defendants in the said suit contended that the properties belonged to them and that the plaintiffs were not entitled to the reliefs claimed by them. The said suit was dismissed. An appeal filed from the judgment and decree also dismissed. It was held that the question of title was not gone into either in the suit or in the appeal preferred. Since the plaint schedule property is in the possession of the defendants and since S.A.795/1998. 3 the plaintiffs have held title to the same, the suit was laid for recovery of possession on the strength of title. 3. Defendants resisted the suit. They admitted the oral partition claimed in the suit. However, they disputed the nature of partition effected and the properties set apart to each of the sharers. According to them, entire items 2 and 3 of plaint A schedule were not allotted to Nappan. From items 2 and 3, 52 koles of property in 6 feet kole measurement towards east from the western boundary shown as road and chal were actually set apart to Cherukutty in the said oral partition. The remaining property towards east were set apart to Nappan. They therefore disputed the description of the western boundaries, survey numbers and the extent shown with regard to items 2 and 3 of plaint A schedule. According to them this is a dubious method adopted by the plaintiff to grab the properties set apart to them. They pointed out that the subsequent partition said to have been entered into between Nappan and her children are not binding on the S.A.795/1998. 4 defendants. Even if any of the properties owned by the defendants are included in the partition deeds, it does not affect the rights of the defendants. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A16 from the side of the plaintiff. Defendants had D.Ws.1 and 2 examined and had Ext. B1 marked. Exts.C1 to C7 are the commission reports and plans. On an evaluation of the evidence in the case, the trial court found that the plaintiff was unsuccessful in proving his title and accordingly dismissed the suit. 5. The aggrieved plaintiff carried the matter in appeal as A.S.3 of 1991 before the Sub Court, Palakkad. The said court, after independent consideration of the evidence in the case, concurred with the trial court and dismissed the appeal. S.A.795/1998. 5 6. The following substantial questions of law are seen raised in this second appeal: “a) Whether under the facts and circumstances of the case, the Courts below were right in not giving importance to the boundaries of the disputed property, in the light of the discrepancies with regard to the extent and survey number. b) Whether under the facts and circumstances of the case, the courts below were right in law in holding that the appellant had no title to the property in question. c) Whether under the facts and circumstances of the case, the lower appellate court was right in law in holding that Ext.A17 has no impact or relevance on the question of title of the appellant. d) Whether under the facts and circumstances of the case, the finding of the courts below with respect to adverse possession and limitation is sustainable, particularly in the light of Ext.A17 and related circumstances. e) Is not Ext.A17 an admission of the appellant's title at least as a co-owner and if so, S.A.795/1998. 6 whether the dismissal of the suit is sustainable in law. f) When the oral partition, which is basis of the suit, is not under serious dispute, and when the defendants plead a particular mode of allotment in such partition, on whom does the burden lie to prove such allotment and whether under the facts and circumstances of the case, the courts below have rightly cast the burden of proof.” 7. Learned counsel appearing for the appellant contended that the courts below were not justified in dismissing the suit. The commission report clearly identifies the plaint schedule property and the courts below were not justified in holding that the plaintiff did not have title to the property and that the property has not been properly identified. It is also pointed out that the courts below have erred in construing Ext.A17 document, which clearly showed that the defendant had admitted the title of the plaintiff to atleast 9 cents of property and a decree ought to have been S.A.795/1998. 7 given in respect of that property, even assuming that the rights over the entire 31 cents have not been proved. 8. The contentions are without any basis whatsoever. It is seen that the trial court has considered the documents produced by the plaintiff in considerable detail and has found that the plaintiff was unable to establish his title to the suit property. The lower appellate court has also found the title against the plaintiff. 9. Both the courts below have found that the allotment of property in the earlier partition alleged in the plaint does not appear to be quite correct. It may be noticed here that it is with respect to D schedule in the plaint that the relief is sought in the suit. It is interesting to note that earlier there was a suit with respect to the same item of property, i.e. O.S. 154 of 1974. That suit was filed by the plaintiff herein against the defendant seeking permanent prohibitory injunction. Finding that the plaintiff did not have possession over the property, possession was with the S.A.795/1998. 8 defendants, the suit was dismissed. It was thereafter that the present suit had been brought by the plaintiff. 10. Both the courts have found that the commissioner has identified the disputed property. However, the courts below found that going by the description given in the plaint schedule the boundaries do not tally with the sketch prepared by the commissioner. The evidence of the commissioner shows the method adopted by him in preparing the sketch. However, the courts below found that there was no evidence at all to show as to how the earlier partition was effected. The courts below also found that at the time of the oral partition, the properties covered by Exts.A5, A6 and A8 were not measured. The claim of the plaintiff was that the entire properties on the north of the canal was set apart to Nappan, and that was disputed by the defendants. The plaintiff had a claim that the entire property in Sy. No. 1/1 was set apart to Nappan. But the courts below on a scrutiny of Exts.A1 and A8 found that only 9 cents was set apart to Pazhanan and Chamiyar S.A.795/1998. 9 and there was no mention of another 31 cents comprised in the same survey number. 11. The courts below accepted the proposition that being a case of oral partition the case has to be decided on preponderance of probability. The courts below found that merely because the rent was paid in equal shares, it does not mean that there was clear partition of the property between the co-owners. In fact the evidence of P.W.1 itself will show that the division was not exactly equal. Case of the defendants is that they were in possession of 52 x 6 feet koles of property from 1952 onwards. It is to be noticed that except for the interested testimony of P.W.1, there is no evidence to substantiate the allegations put forward by the plaintiff. The courts below have also considered the effect of the judgment and decree in O.S. 154 of 1974. The courts below were of the opinion that the decision in the said suit cannot constitute as res judicata since that was only a suit for injunction and the present suit is one based on title. S.A.795/1998. 10 12. It is interesting to note that Exts.A5 and A6 produced by the plaintiff do not mention about the D schedule properties. On a close perusal of the four boundaries of item 4 of Exts.A5 and A6, they do not indicate that they take in the properties comprised in Sy. No.5/3A. The courts below also noticed that even going by the documents produced by the plaintiff and evidence tendered by him, his father had received only 45 cents in Sy. No.1/1 and that had been gifted to the plaintiff and his brother. Therefore, nothing remains in Sy. No.1/1. It is to be noticed that item No.1 to D schedule is 9 cents comprised in Sy. No.1/1. The plaintiffs have no case that 9 cents shown as item No.1 in D schedule was a portion of the 45 cents gifted to them by their father. Both the courts below have elaborately considered the documents produced in the case and the evidence adduced by P.W.1 and have come to the conclusion that there is want of evidence to show that the plaintiff has title to D schedule property. S.A.795/1998. 11 13. Learned counsel appearing for the appellant then pointed out that the appellant had produced Ext.A17 before the appellate court. That was the copy of the plaint in O.S. 313 of 1991 before the Sub Court, Palakkad. That was a suit for partition. There is an averment that the plaintiffs are entitled to half share in Sy. No. 1/1. This is taken aid of by the appellant and contended that atleast with respect to the 9 cents a decree ought to have been granted. 14. First of all, it needs to be noticed that O.S. 313 of 1991 was a suit for partition, and it had been withdrawn. The plaintiff had no case that he was in possession of any extent of property in Sy. No.1/1. Under those circumstances, the courts below were perfectly justified in non-suiting the plaintiff. 15. At the risk of repetition, one fact may be noticed. Both the courts below on a consideration of the evidence on record found that the plaintiff has miserably failed to establish his case. Findings are on facts. There is S.A.795/1998. 12 nothing to show that the findings are either perverse or unwarranted by the evidence on record. There is also nothing to show that the courts below have taken into consideration irrelevant aspects and has omitted to take note of relevant facts. No substantial question of law arises for consideration. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.