IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 RSA.No. 585 of 2007() -------------------------- AS.47/1995 of SUB COURT, OTTAPPALAM OS.79/1993 of MUNSIFF COURT, OTTAPPALAM .................... : APPELLANTS/ APPELLANTS/DEFENDANTS: ------------------------------------------------ 1. KUNHU KUNHU (DIED). 2. MANIYAN, AGED 54 YEARS, S/O.KUNHU KUNHU. 3. VIJAYAN, AGED 49 YEARS, S/O.KUNHU KUNHU ALL RESIDING AT ELAMBULASSERI AMSOM, POMBRA DESOM, OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENTS: RESPONDENTS/ RESPONDENTS/PLAINTIFFS: -------------------------------------------------------------------- 1. LAKSHMI, AGED 79 YEARS, D/O.MELEKALATHIL LATE PAZHANI @ APPUKUTTAN. 2. MEENAKSHI, AGED 56 YEARS, D/O.LAKSHMI. 3. CHANDRAN, AGED 44 YEARS, S/O.LAKSHMI. 4. PREMAKUMARI, AGED 39 YEARS, D/O.LAKSHMI. ALL RESIDING AT ELAMBULASSERI AMSOM, POMBRA DESOM, OTTAPALAM TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 585 OF 2007 =========================== Dated this the 3rd day of January, 2008 JUDGMENT The legal heirs of the original defendant in O.S.79/1993 on the file of Munsiff Court, Ottapalam are the appellants. Respondents are the plaintiffs. They instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint schedule property was set part to the share of Pazhani @ Appukuttan under Ext.A1 partition deed effected in his family in 1970 and thereafter Appukuttan has been in possession of the property till his death in 1981 and on his death, it devolved on respondents who have been in actual possession of the plaint schedule property since 1981. It was contended that on the east and north of the plaint schedule property there is level difference between the properties and the boundary ridge as well as the coconut trees standing thereon belong to and in the R.S.A.585/2007 2 possession of respondents and recently appellants started to raise claim over portion of the plaint schedule property and apprehending that they will trespass into the property respondents lodged a complaint before the police as well as the Revenue Divisional officer and respondents caused the Taluk Surveyor to measure the properties and fix their boundaries and on such fixation appellants were convinced that they have no right over the plaint schedule property but on 26.2.1993 they attempted to trespass into the plaint schedule property. Respondents hence sought a decree for permanent prohibitory injunction. Appellants in their written statement disputed the claim contending that respondents have no right or possession over an extent of 29 cents in R.S.138/6 and it was in the possession of Kallingal Kunhalavi. It was contended that under Ext.B1 assignment deed of 1981, appellants purchased the property and thereafter they have been in possession of that property and cultivated it with R.S.A.585/2007 3 coconut and arecanut saplings and respondents are not in possession of that property and they have no right or title to the property and therefore the suit is to be dismissed. 2. Learned Munsiff framed the necessary issues. On the evidence of PW1 and DW1 and Exts.A1 to A5 and Exts.B1 and B2 and Exts.C1 to C4, learned Munsiff found that though appellants claimed that they have right, title and possession to 29 cents of the property in R.S.138/6 as obtained from Kunhalavi, the right claimed is the one obtained by Kunhalavi under an oral lease which was not substantiated and Kunhalavi or appellants did not even apply for purchase of the jenm right from the Land Tribunal. Learned Munsiff also found tht under Ext.A1 partition deed, plaint schedule property was allotted to Pazhani @ Appukuttan and under Ext.A2 Pazhani @ Appukuttan purchased jenm right from the Land Tribunal on 29.7.1977 and evidence establish that respondents have title and possession to the plaint schedule property and R.S.A.585/2007 4 appellants are not in possession of the property. Therefore a decree for permanent prohibitory injunction was granted. Appellants challenged that judgment before Sub Court, Ottapalam in A.S.47/1995. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of learned counsel is that courts below did not properly appreciate the nature of the property covered under Ext.A1 and B1. It was also argued that under Ext.A1 the property obtained by Pazhani @ Appukuttan is nilam and the property covered under Ext.B1 is the garden land and as the plaint schedule property is a garden land, respondents are not entitled to claim that property and they have right only on the nilam. It was argued that plaint schedule property is in Elambulasseri Village and Ext.A3 series of tax R.S.A.585/2007 5 receipts were obtained from Karimpuzha village and only Ext.B2 tax receipt was in respect of the plaint schedule property and it was obtained from the Village Office, Elambulasseri and this was not properly appreciated by the courts below. It was also argued that appellants is also claiming an oral lease and when the oral lease set up by appellants are established by Ext.B1 assignment deed, courts below should not have been granted a decree for injunction against appellants. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. When respondents claimed that they have right and title to the property covered under Ext.A1 partition deed and Ext.A2 purchase certificate obtained from the Land Tribunal, appellants contended that they have title to the property under Ext.B1 assignment deed executed by Kunhalavi. The argument of the learned counsel is that as the property covered under Ext.A1 is in R.S.A.585/2007 6 respect of modernikadu nilam and plaint schedule property is not paddy field and hence it should have been found that plaint schedule property is the one covered under Ext.B1 and it belongs to the appellants. 7. As rightly found by courts below, when appellants are claiming right and title to the property only under Ext.B1 assignment deed. Ext.B1 shows that the sale deed was executed by Kunhalavi claiming that he obtained the property on an oral lease. Ext.B1 assignment deed was executed in 1981. The jenm right of the property vests with the Government on 1.1.1970. Ext.A2 purchase certificate, obtained by Pazhani @ Appukuttan, establish that jenm right had already been assigned in favour of the predecessor in interest of the respondent as early as 1977. Neither Kunhalavi the assignor or the appellants applied for purchase of jenm right from the Land Tribunal. As rightly found by the courts below, if there existed an oral lease in favour of Kunhalavi, he would have R.S.A.585/2007 7 definitely applied for purchase of jenm right before the Land Tribunal. There is absolutely no material to support the claim of oral lease, except the interested recitals in Ext.B1. Courts below on the evidence found that Kunhalavi did not obtain the property on lease and appellants cannot claim the property under Ext.B1. Though learned counsel is relying on Ext.B2 and it was argued that based on Ext.B2 it is to be found that appellants have right and title to the property, Ext.B2 tax receipt was obtained subsequent to the institution of the suit and the solitary payment of tax subsequent to the institution of the suit will not help the appellants either to claim title or possession. Courts below on appreciating the evidence found that plaint schedule property is the property covered under Exts.A1 and A2 and respondents are in possession of the property and granted a decree. That factual finding of fact by the trial court, confirmed by first appellate court. On reappreciation of evidence cannot be R.S.A.585/2007 8 interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure. As no substantial question of law is involved in the appeal, it is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006