IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 155 of 2000(B) --------------------- ( AS.130/1994 of DISTRICT COURT, KOZHIKODE OS.34/1990 of SUB COURT, QUILANDY) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- C.K.GOPALAN, S/O.KUNHIKANNAN, AGED 58 YEARS, AGRICULTURIST, RESIDING AT KOLITHAZHA KUNIYIL, KURUVANGAD AMSOM, PERUVATTOOR DESOM, KOYILANDY TALUK. BY ADV. SRI.M.SASINDRAN RESPONDENTS/RESPODENTS/DEFENDANTS: -------------------------------------------------------------- 1. CHALOLILLATH VASUDEVAN NAMBOODIRI, S/O.VISHNU NAMBOODIRI, AGED 46 YEARS, AGRICULTURIST, RESIDING AT PUTHIYOTTIL ILLAM KURUVANGAD AMSOM, PERUVATTUR DESOM, KOYILANDY TALUK. 2. CHOLOLILLATH PURUSHOTHAMAN NMBOODIRI, S/O.PURUSHOTHAMAN NAMBOODIRI, AGED 34 YERS, AGRICULTURIST, RESIDING AT VATTARAMBATH ILLAM, KURUVANGAD AMSOM, PERUVATTOOR DESOM, KOYILANDY TALUK. 3. THE TAHSILDAR, KOYILANDY, (RECEIVER IN M.C.NO.4/87 OF RDO COURT, KOZHIKODE). 4.CHERIYA CHALORA KSHETHRA COMMITTEE REPRESENTED BY ITS SECRETARY KUNNATHMEETHAL GOPALAKRISHNAN NAIR, AGED 39 YEARS, S/O.KELU NAIR, AGRICULTURIST, KURUVANGAD AMOM PERUVATTOOR DESOM, KOYILADY TALUK. 5.KOLIKANDY SREEDHARAN NAIR, S/O.KUNHIRAMAN NAIR, AGED ABOUT 32 YEARS, AGRICULTURSIT, PRESIDENT, CHERIYA CHALORA KSHETHRA COMMITTEE, KURUVANGAD AMSOM, PERUVATTOOR DESOM. KOYILANDY TALUK. BY ADVS. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER R3 BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN P.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ---------------------------- S.A.No. 155 of 2000 --------------------------------- Dated this the 4th day of February, 2011 JUDGMENT The plaintiff in O.S.No.34/1990 before the Sub Court, Koyilandy, who was non suited by both the courts below is the appellant. 2. The B schedule property is a portion of the plaint A schedule property, which has an extent of 90 cents, which forms part of a large extent of property. He traces his title to Ext.A2, A5 and A16 and A17. According to him there was a Pattupura originally in the property which was destroyed and he used the structure for conducting thira. None of the defendants have any manner of right in the suit property. However, the third and and fourth defendants under the guise of some documents stated to have been obtained from the first and second defendants and attempting to interfere with the rights of the plaintiff. Hence, the suit was filed claiming possession and other reliefs. 3. Defendants 1 to 4 filed joint written statement and they stated that the plaintiffs have no manner of right over the pathway. even going by the document relied on by the plaintiff. According to them the plaintiff has never been in possession of the suit property and he has no manner of right over the plaint B schedule property since it is temple property and annual “Makara festival” is conducted in that S.A.No. 155 of 2000 2 place. On the basis of these contentions they prayed for a dismissal of the suit. The other defendants also pointed out several contentions. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A24 from the side of the plaintiff. Exts.B1 to B6 documents marked from the side of the defendants. Exts.C1 to C4 are the commissioner's report and plan. 5. The trial court on an evaluation of the evidence available in the case came to the conclusion that plaintiff was unable to establish his title over plaint B schedule property and is not entitled to any relief in respect of that property. The suit was accordingly dismissed. 6. The plaintiff carried the matter in appeal as A.S.130/1994 before the District Court, Kozhikode. The lower appellate court on an independent evaluation of the documents and evidence in the case came to a identical conclusion that the plaintiff had miserably failed to establish his title to the plaint B schedule property and the trial court was justified in suit non suiting him. The appeal was therefore dismissed. 7. Notice has been seen issued in the following substantial questions of law: 1. Whether the reservations as to any structure, made in favour of the land lord in a lease agreement, while S.A.No. 155 of 2000 3 assigning the property in which it situates, would remain to be under the ownership and in possession of the landlord, even after the issuance of purchase certificate in respect of the said property in favour of the tenant under Sec.72K of the Kerala Land Reforms Act. II. Whether the courts below were right in interpreting the Exts.A1 and A2 documents to say that the 'Pattupura' was not transferred to the tenant. III. Whether the courts below right in holding that the plaintiff was not in possession of the plaint schedule property ignoring the irrefutable presumption contained in Sec.72K of the Land Reforms Act. IV. Whether the courts below right in holding that the plaintiff had not proved title and possession in respect of the property. V. Whether the courts below right is not considering the entire documents produced by the plaintiff. VI. Whether the courts below right in discarding the oral evidence adduced on the side of the plaintiff. VII. Whether the courts below right in dismissing the suit ? VIII. Was the suit maintainable since it is barred by res- judicata. 8. The learned counsel for the appellant contended that both the courts below have not appreciated the evidence in the proper perspective and have ignored the vital documents, which would evidently show that the plaintiff has got title to the plaint B schedule property. The conclusion drawn by both the courts below that the plea that there was a temple in the property is patently wrong. In the S.A.No. 155 of 2000 4 acquisition proceedings, compensation was paid to the plaintiff. There has been a misreading of the evidence in the case and according to the learned counsel, it has resulted in mis carriage of justice. 9. Per contra, the respondents pointed out that the plaintiff has no consistent case at all. Referring to the plaint, it is pointed out the plaintiff has alleged that the defendants have trespassed into a portion of the properties. The evidence is clear to the effect that there was a structure which has been treated as a temple where festival is conducted every year. The learned counsel also drew attention of this court to various documents and pointed out that plaintiffs claim is limited to the property in survey No. 13/6, 13/7 and not 13/8. Apart from all these facts, the learned counsel drew attention of this court to Exts.A1 and A2 documents, which are the basic documents on which the plaintiff relies in support of his title and those documents specifically exclude the property where the Pattupura is situated. It is therefore very evident that the lessee under EXts. A1 and A3 did not get possession of the property where the Pattupura was situated. These vital aspects had persuaded the court below to hold that there are no grounds to interfere with the decree of the trial court. 10. It must be said that the contentions raised by the learned counsel for the respondents have considerable force. The main document on which the reliance placed before this court is Ext.A4 S.A.No. 155 of 2000 5 dated 21.11.1975, the photostat copy of the certificate of purchase is seen issued in favour of the plaintiff. Ext.A5 is the certified copy of the order in SMP 928/1973 of Land Tribunal, Panthalayani relating to the property. 11. As rightly noticed by the learned counsel for the respondent these are the basic documents on the basis of which the plaintiff claims title. A reading of those two documents would show that the property where Pattupura is situated includes a structure and they were excluded from the lease taken in Exts. A1 and A2. The existence of Pattupura is seen mentioned in Ext.A3 document, which is the partition deed, in which the plaintiff is a party. There are nothing to indicate that the lease taken in Ext.A2 took in property where the pattupura is situated. It is not disputed before this court that plaint B schedule property is the same property were the pattupura is situated and which was excluded under Exts. A1 and A2. 12. In the counter affidavit filed as Ext.B6, the plaintiff categorically asserted that his claim is confined to the property comprised in survey No. 13/6. From the evidence, it is revealed that the disputed property is in survey No.13/8. Even though attempt was made by the plaintiff to show that it is not correct, he was not successful in doing so. S.A.No. 155 of 2000 6 13. It is not in dispute that the properties where the structure in situated, the plaint B schedule property originally belonged to the defendants 1 and 2. They had executed Ext.B2 in favour of the society for running the temple. It is true that the plaintiff had examined PW2. But his evidence shows no purpose. As already noticed, he failed to support from his own documents produced in the case. 12. The recitals in Exts.A1 and A2, the admission in Ext.B6 and admission of PW1, the pattupura belonged to jenmi, the admission on the part of the plaintiff that he had no extent of property in survey No.13/8 are the factors which made the court below to hold against the plaintiff. No substantial questions of law arises for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln The word “pathway” occurring in the 2nd line of 3rd paragraph of the judgment dated 04.02.2011 in S.A.No.155/2000 is corrected and substituted as “Pattupura” as per order dated 15.03.2011 in I.A. 714/2011. sd/- Registrar (judicial)