IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 RSA.No. 923 of 2004() -------------------------------- AS.NO. 177/1995 of FIRST ADDL. DISTRICT COURT, THIRUVANANTHAPURAM OS.NO. 1057/1989 of PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM .................... APPELLANT/APPELLANT/PLAINTIFF. ------------------------------------------------------- SUKUMARN, AGED 45, ALAMCODE MURI, NEAR RADIO STATION, PANGAPPARA VILLAGE, THIRUVNANTHAPURAM. BY ADVS. SRI.VARGHESE C.KURIAKOSE SRI.P.M.JOSEPH SRI.ADEEP ANWAR RESPONDENT(S): RESPONDENT/DEFENDANTS. ---------------------------------------------------------------------- 1. C.BABY, KALLARA HOUSE, CHENNILODE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM. 2. M.BABU, KALLARA HOUSE, CHENNILODE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM. R1 BY ADV. SRI.M.RAJAGOPALAN NAIR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - R.S.A No. 923 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2011 J U D G M E N T Plaintiff in O.S No.1057 of 1989 on the file of Principal Munsiff Court, Thiruvananthapuram is the appellant. Defendants are the respondents. Appellant instituted a suit seeking a decree for declaration of title and recovery of possession and permanent prohibitory injunction. Plaint A schedule property is 10 cents in Survey No.1702/1 in Pangappara Village of Kazhakuttom Sub District, Thiruvananthapuram. Plaint B schedule property is 3.375 cents, being part of the Plaint A schedule property. According to the appellant, plaint A schedule property belong to him under Ext.A1 sale deed executed by Punnose and he has absolute title to the plaint A schedule property and first respondent is his sister and second respondent is the husband. Appellant was serving in military. Taking advantage of his absence, respondents trespassed into the plaint B schedule property and constructed a building therein and is residing there. It is contended that they have no right or title to the plaint B schedule property and hence appellant is entitled to recover the possession on the strength of title. Respondents resisted the suit contending R.S.A No. 923 of 2004(B) -2- that appellant has no title to the plaint B schedule property and the plaint B schedule property never belonged to Punnose and hence the appellant is not entitled to the decree sought for. 2. Learned Munsiff on evidence of PW1 to 3, DW1, Exts.A1 to A4, B1 to B5 and C1 and C1(a) dismissed the suit holding that appellant did not established his title. Appellant challenged the judgment before District Court, Thiruvananthapuram as A.S No.177 of 1995. The learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. Second appeal is admitted formulating the following substantial questions of law:- “Has not the courts below gone wrong in accepting the property purchased by the appellant puramboke especially when the Director of Survey and Boundary Act states contradictory to the report of the Village Officer and basing on independent evidence and finds that the land in question is a registered holding ?” 3. Learned counsel appearing for the appellant and respondents were heard. 4. The suit is for a declaration of title and recovery of possession. Appellant can succeed in the case only if he establishes the title claimed under R.S.A No. 923 of 2004(B) -3- Ext.A1. Respondents contended that appellant did not have title under Ext.A1. Appellant can get title under Ext.A1 only if his assignor under Ext.A1 has title to the property. Ext.A1 shows that the assignor only claimed that he has got the property as per a registered Will executed by his father and appellant has been in possession of the 10 cents covered under Ext.A1 earlier, as he was permitted to construct a compound wall and was residing there. Ext.A1 sale deed was executed on 24.02.1988. The evidence of PW1 establish that alleging that respondents trespassed upon his property, he had filed several complaints and finally Ext.A3 reply was received by him from the Superintendent of Police, Thiruvananthapuram on 06.02.1988 advicing the appellant to approach a Civil Court. PW1 admitted that he has decided to institute a suit immediately and availed leave from military and reached his native place. He also admitted that Ext.A1 was obtained thereafter. It is clear that Ext.A1 was obtained for the sole purpose of institution of the suit, as he has no material to prove his right in the plaint schedule property. 5. PW1 unambiguously admitted in cross examination that his father has been in possession of the plaint A schedule property since 1956. It is also admitted by him that the building therein was constructed by the father. If that R.S.A No. 923 of 2004(B) -4- be so the recital in Ext.A1 that appellant was permitted by the assignor Punnose to construct a compound wall and to reside there, is false to the knowledge of the appellant. There is absolutely no evidence to prove that Punnose had title to the property. On the other hand as rightly found by the courts below it is clear that it is part of Government puramboke land and before the institution of the suit proceedings were initiated to assign plaint B schedule property in favour of first respondent. On appreciation of the entire evidence, even if the plaint schedule property does not form part of road puramboke as claimed by the appellant in the appeal memorandum, he cannot succeed to get a declaration of title as he did not establish title of Punnose the assignor under Ext.A1. In such circumstances, the courts below rightly dismissed the suit. There is no merit in the appeal. It is dismissed with cost. Sd/- M.SASIDHARAN NAMBIAR JUDGE //TRUE COPY// P.A. TO JUDGE krj