IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 SA.No. 501 of 1997(B) --------------------- AS.1/1991 of SUB COURT, HOSDRUG OS.206/1988 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): (APPELLANT/PLAINTIFF): -------------------------------------------------------------- KAPPANAKKAL KUNHI RAMAN, S/O. CHEMMARATHI, RESIDING AT 'SANGETHAM', SOUTH TRIKARIPPUR VILLAGE, HOSDRUG TALUK, P.O. TRIKARIPUR. BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, BY ADV. SRI.KODOTH PUSHPARAJAN, SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES), SMT.PRABHA R.MENON. RESPONDENT(S): (RESPONDENTS/DEFENDANTS): --------------------------------------------------------------------------- 1. KAMPRATH PATHAYA PURAYIL KUNHIKANNA PODUVAL, S/O.KUMBA AMMA, RESIDING AT 'SANGETHAM', SOUTH TRIKARIPUR VILLAGE, HOSDRUG TALUK, P.O. TRIKARIPUR.( D I E D). 2. KAMPRATH PATHAYA PURAYIL RAJAN, NEPHEW OF KUNHIKANNA PODUVAL, RESIDING AT ..DO..DO.... 3. KANNADI ILLOTH VASUDEVAN, S/O.KESAVAN NAMBOODIRI, RESIDING AT PANAPPUZHA AMSOM, KAITHAPPURAM DESOM, TALIPARAMBA TALUK, P.O. KAITHAPPURAM, SECRETARY, JENAKSHEMA SAMITHI. Kss ...2/- ..2.... SA.NO.501/1997 *ADDL.R4 TO R10 IMPLEADED: R4. KUPLERI PARVATHI AMMA, W/O.LATE KUNHIKANNA PODUVAL, RESIDING AT 'SANGETHAM', SOUTH TRIKARIPUR VILLAGE, HOSDRUG TALUK, P.O. TRIKARIPUR. R5. K.MURALIDHARAN, S/O.LATE KUNHIKANNA PODUVAL, RESIDING AT ..DO..DO.... R6. VIMALA, D/O..DO... RESIDING AT ...DO...DO.... R7. GEETHA, D/O...DO.... RESIDING AT ..DO..DO.... R8. SUMA, D/O.....DO..... RESIDING AT ..DO...DO...... R9. SUDHA, D/O...DO.... RESIDING AT ...DO...DO..... R10. JYOTHI, D/O...DO.... RESIDING AT ..DO..DO..... (*ADDL.R4 TO R10 ARE IMPLEADED AS LRS OF DECEASED R1 AS PER ORDER DTD. 22/06/2010 IN I.A.NO.1137/1998) R2 BY SRI.R.D.SHENOY, SENIOR ADVOCATE, BY ADV. SRI. VINOD BHAT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- S.A No.501 of 1997 -------------------------- Dated this the 19th July, 2010 J U D G M E N T Plaintiff in O.S No.206/1988 who was non-suited by the Court below and that decree was upheld by the lower appellate court , is the appellant herein. 2. According to the plaintiff, plaint schedule property originally belonged to jenm to Udumbunthala Tarwad and it was outstanding on kuzhikanom right to one Thuruthilakath Thottinakkara Puthiya Purayil Kunhamina. It is stated that property was taken on leasehold right by Chandan from Kunjamina along with other properties about 35 years back. Chandan assigned his lease hold right over the property in favour of his niece Paru as per Ext.A1 sale deed dated 26.11.1960. It is further stated that after the death of Kunjamina, her jenm and kanom right over the property came to vest in her daughter Beepathumma. Consequent on a partition, Beepathumma and her children came into possession under a gift deed executed by Mammed Kunhi, the father of Beepathumma. The entire right of Beepathumma was S.A No.501 of 1997 2 sold in favour of the tenant Paru as per Ext.A3 dated 13.6.1961. Paru in turn assigned her entire right in favour of one Janardhana Poduval as per Ext.A4 dated 19.7.1974. Subsequently the said Janardhana Poduval converted the property into a garden land planting coconut plants and thereafter sold the property to the plaintiff as per Ext.A5 dated 30.4.1977. Thereafter, the plaintiff is in absolute possession and enjoyment of the property. He had made improvements in the property. The complaint is that on 18.9.1988 when the defendants tried to pluck coconuts from the property, the plaintiff resisted their attempt. Plaintiff apprehends further trespass and hence the suit. 3. The suit was resisted by the defendants. It is pointed out that suit property is having an extent of one cent belonging to the Janakshema Samithi, which is a society registered under the Societies Registration Act. Third defendant is the Secretary of the said Samithi. Defendants 1 and 2 have no right whatsoever over the suit property. The dispute is in regard to the title of the plaintiff. It is pointed out that plaintiff do not have any S.A No.501 of 1997 3 right over the suit property. According to them, the entire property, as claimed by the plaintiff, was not included in the registered sale deed dated 13.6.1961 executed in favour of Paru. Plaintiff in turn did not get title over the suit property. They also contended that plaintiff has no title or possession over the suit property and the suit is liable to be dismissed. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and PW2 and Exts.A1 to13 were marked from the side of the plaintiff. Defendants had examined DW1 and Exts. B1 to B14 were marked. Exts.C1 to C3 are the commission report and plan. 5. The trial court found that the suit is bad for non- joinder of necessary parties. It is also found that plaintiff has not been able to establish title and possession over the suit property . On the basis of these findings, the suit was dismissed. 6. The matter was carried in appeal as A.S No.1 of 1991 before the Sub Court, Hosdurg. The appellate court S.A No.501 of 1997 4 independently considered the evidence on record and found that the suit is bad for non-joinder of necessary parties and also found the findings of the trial court that plaintiff had failed to establish his title and possession was justified. The said appeal was dismissed. 7. In this Memorandum of Appeal, the following questions of law have been raised. A. Whether or not the 3rd defendant represented the Janakshema Samithy the vendee inB13? B. Whether or not on the evidence available the plaintiff has proved his title over the suit property? C. Whether the absence of the suit property in A13 document proves the plaintiff's title? 8. Learned counsel appearing for the appellant pointed out that courts below were not justified in holding that the suit was bad for non-joinder of necessary parties and also that the plaintiff had no title and possession over the suit property. 9. Learned counsel refers to Exts.A1 to A5 to contend that those documents were sufficient to show that S.A No.501 of 1997 5 the plaintiff had title and possession over the suit property and he was in possession of the same. It is also pointed out that the nature of cultivation in the suit property in comparison with the cultivation in the rest of the property of plaintiff will clearly show that the property belonged to the plaintiff. 10. Learned counsel for the respondent contended that being a suit on title, the burden is entirely on the plaintiff to establish his title and right to possession. Weakness, even if, as of the defence case is of no help to the plaintiff. The commission report taken along with other evidence will show that plaintiff has failed to establish his title and right to possession. Therefore, according to the learned counsel, no interference is called for. 11. At the outset it is to be noticed that initially the extent of land was shown as 3 cents . Later, it was amended by reducing the extent of land to 1 cent. . The commissioner has marked that property as ABCDST in his report. Both the courts below have discussed the matter in S.A No.501 of 1997 6 detail with regard to the title deeds of both the parties. Ultimately the courts below have taken a decision that the suit property is not included in the title deed relied on by the plaintiff. Since there is concurrent finding of fact further scrutiny is not warranted as regards this aspect is concerned. 12. There are certain other circumstances which will show considerable doubt about plaintiff's plea. 13. On a perusal of the commission report it is shown that the commissioner located the disputed plot as APQRST. It appears that land on the southern side of the disputed property is admittedly owned by the plaintiff. Significantly enough the property owned by the plaintiff and the disputed property is separated by a pathway. Plaintiff has no case that there is a pathway in existence as shown in the commission report. Further, the pathway is one feet lower than the property on its southern side which is the disputed property. Again the age of the coconut trees in the disputed plot and rest of the properties owned by the plaintiff is significantly different and age difference is S.A No.501 of 1997 7 considerable. These facts and contentions show that the plaintiff did not have any title or possession over the suit property. The courts below were justified in non-suiting the plaint. No question of law arose for consideration in this appeal since it is not shown that findings of the lower appellate court are either perverse or unwarranted by the evidence on record. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No.501 of 1997 8 S.A No.501 of 1997 9