IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 SA.No. 264 of 1996(F) --------------------- AS.120/1990 of SUB COURT, TIRUR OS.132/1976 of MUNSIFF COURT, TIRUR .................... PLAINTIFF/APPELLANT(S): ---------------------------------------- KUNHI KAMMU, S/O. KOTTAMPARA MALIYAKKAL MOIDUTTY, EDAYOOR AMSOM DESOM, TIRUR TALUK. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR DEFEN DANTS/ RESPONDENT(S): ----------------------------------------------- * 1. HURAYAR, S/O VALIYAPARAMBIL KUNHAHAMMED, EDAYOOR AMSOM DESOM, TIRUR TALUK.(DIED) ** 2. SIDHIQUE,S/O VALIYAPARAMBATH KUNHAHAMMED, KATTIPARUTHI AMSOM DESOM, TIRUR TALUK.(DIED) 3. MUHAMMED, S/O. MARUTHUMPOOYIL MOIDEEN, EDAYOOR AMSOM DESOM, TIRUR TALUK. ADDL.R10. KADEEJA, W/O.VALIYAPARAMBIL SUBAIR, EDAYUR AMSOM, MAVANDIYOOR DESOM, P.O.EDAYUR NORTH, MALAPPURAM DISTRICT. ADDL.R11. SULEIKHA, VALIYAPARAMBILHOUSE, OF DO. DO. ADDL.R12. JAMAL, OF DO. DO. ADDL.R13. KANDANKAYI NABEESA, EDAYUR AMSOM, POOVATHUMTHARA DESOM, P.O.EDAYUR SOUTH, MALAPPURAM DISTRICT. ADDL.R14. UMMUSALMA,VALIYAPARAMBIL HOUSE, OF DO. DO. ADDL.R15. RAZIA, OF DO. DO. ADDL.R16. RUKHIYA, OF DO. DO. ADDL.R17. THAJUDHEEN, OF DO. DO. SA.No. 264 of 1996(F) ADDL.R4. WIDOW, P.K.KADEEJA, VALIYAPARAMBIL HOUSE, P.O.EDAYUR NORTH, VIA.VALANCHERRY. MALAPPURAM DISTRICT. ADDL.R5. V.P.MUHAMMAD KUNHI-ALIAS KUNHIPPA, P.B.NO.14276, DUBAI, U.A.E.; ADDL.R6. V.P.ABDUL RASHEED ALIAS BABU, VALIYAPARAMBIL HOUSE, P.O.EDAYUR NORTH, VIA.VALANCHERRY. MALAPPURAM DISTRICT. ADDL.7 V.P.RUKHIYA, W/O.C.P.SAIDALI,VETTICHIRA, P.O.PUNNATHALA, VIA.VALANCHERRY, MALAPPURAM DISTRICT. ADDL.8. V.P.KADEEJA, W/O.IBRAHIM, VADAKKEPPATTHODI, P.O.PURAMANNOOR, VIA.VALANCHERRY, MALAPPURAM DISTRICT. ADDL.9 V.P.FATHIMA SUHARA, W/O.HANEEFA,AYAPPALLIKLIYAMANNIL HOUSE, P.O.VADAKKUMBRAM,VIA.VALANCHERRY, MALAPPURAM DISTRICT. ADV. SRI.T.R.RAVI FOR R10TO17 (* ADDL.R10 TO 17 ARE IMPLEADED AS THE LR'S OF THE DECEASED 1ST RESPONDENT VIDE ORDER DATED 13.8.09 IN CMP 1915/02. **ADDL. R4 TO 9 ARE IMPLEADED AS THE LR'S OF DECEASED 2ND RESPONDENT VIDE ORDER DATED.13.8.09 IN CMP.252/99) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ========================= S.A.No.264 OF 1996 ====================== Dated this the 2nd day of June, 2010. JUDGMENT The plaintiff in O.S.No. 132/1976 on the file of the Munsiff's Court, Tirur is the appellant. The suit was filed for permanant prohibitory injunction and for recovery of possession on the strength of title. The trial court held that the plaintiff has no right or possession of the plaint schedule property and the suit was dismissed. The decree and Judgment passed by trial court was confirmed by the Lower Appellate Court. Hence, this appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. According to the plaintiff his grandfather (Alassan) commence possession of the plaint schedule property as per kanom demise executed in the year 1913, that Alassan assigned his kanom right to plaintiff's father, Moidutty as S.A.No.264 OF 1996 2 per assignment deed executed in the year 1924 and Moidutty assigned the plaint schedule property in favour of the plaintiff on 16.5.1964. A portion of the plaint schedule property was assigned to 3rd defendant, who was originally arrayed as 2nd plaintiff in the suit. Plaintiff claims title and possession of the balance extent over the plaint schedule property. The suit was filed alleging that defendants 1 and 2 obstructed the third defendant from entering into the property assigned to him by the plaintiff and also attempted to trespass into the property in the possession of the plaintiff. 3. The defendants 1 and 2 filed written statement denying the material averments in the plaint. The defendants also disputed the identity of the plaint schedule property. The defendants contended that the plaint schedule property comprised in Survey No.196/2 originally belonged to their grandfather on kanom right and as per the decree passed in O.S.No. 14/1986, on the file of the Munsiff's Court of Tirur, the property was alotted to the share of the first defendant. The first defendant subsequently purchased the jenm right from the Land S.A.No.264 OF 1996 3 Tribunnal, Kuttippuram. It is also pleaded that property of the plaintiff is situated in R.S.No.176/13B and the plaintiff has no title over the plaint sachedule property. 4. Trial court deputed an Advocate Commissioner to identify the plaint schedule property. Exts. C1, C2, C3, C5 and C6 are the plan and report. The trial court relied on the Commissioner's report and plan and held that the plaintiff failed to identify the plaint schedule property and failed to prove the title. 5. The Lower Appellate Court examined the contentions of the respective parties and based on the Commissioner's Report and Plan held that the plaintiff failed to identify the property. Both courts below held that neither the survey number nor description of the boundary of the plaint schedule property tally with the title deeds produced by the plaintiffs. After elaborate discussion of the materials on record, the trial court concluded that the plaintiff failed to establish his right over the property identified by the Commissioners. The learned Munsiff also examined the further contention of plaintiff that he is in possession and enjoyment of the property. The learned S.A.No.264 OF 1996 4 Munsiff on facts and evidence held that the plaintiff has no right or possession in respect of the plaint schedule property. The entire evidence on record was re-appreciated by the Lower Appellate Court and it came to the very same conclusions. The findings recorded by trial court as well as appellate court are based on the materials on record, evidence and other attendant circumstances. This Court find that the appellant has not made out any ground to interfere with the finding on facts entered by the court below. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. mns