IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 SA.No. 640 of 1997(A) -------------------------------- AS.38/1993 of SUB COURT, HOSDRUG OS.57/1991 of MUNSIFF COURT, HOSDRUG .................... APPELLANT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------ *PERIYAL PADMAVATHI AMMA, W/O. LATE CHANDRASEKHARAN NAMBIAR, HOUSEHOLD, RESIDING AT AVALLAKATTA, PARAPPA VILLAGE, HOSDURG TALUK, POST PARAPPA. (DIED). *ADDL. APPELLANT IMPLEADED 2. CHANDRALEKHA, D/O. LATE PADMAVATHI AMMA, W/O. C.NARAYANAN NAIR, CHEROOTA HOUSE, MALOORKAYAM, PARAPPA (VIA), KASARAGOD. BY ADVS. SRI.K.SHRI HARI RAO SRI.K.R.RAGHUNATH RESPONDENT(S): APPELLANT/DEFENDANTS ------------------------------------------------------------------- 1. C.H.KHADER, PRESIDENT, BERRIKKULAM JUMAYAT, KOLAMKULAM IN KINNANOOR VILLAGE OF HOSEDURG TLAUK, POST BERRIKKULAM, NILESHWAR (VIA). *2. ABDULLA, SECRETARY, BERRIKKULAM JUMAYAT, KOLAMKULAM IN KINNANOOR VILLAGE, HOSDURG TALUK, POST BIRIKKULAM, NILESHWAR(VIA).(DELETED) S.A. NO.640/1997 * R2 IS ABDULLA, SECRETARY, BERRIKKULAM, JUMAYAT, KOLAMKULAM IN KINNANOOR VILLAGE OF HOSDURG TALUK, POST BERRIKKULAM, NILESHWAR (VIA), IS DELETED FROM PARTY ARRAY AS PER ORDER DTD. 3.6.10 IN IA. 1168/10. ADDL. R3 IMPLEADED. 3. P.RAMACHANDRAN NAIR, S/O. LATE PADMAVATHI AMMA, PERIYAL HOUSE, KANAKAPPALLI, PARAPPA ( VIA), KASARAGOD. ADDL.A2 & R3 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER THE ORDER DTD. 13.8.2010 IN IA. 577/2008. R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R3 BY ADV. SRI.L.JAYAWANTH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1674/1997 IN SA. NO.640/1997. DISMISSED 15/12/2010 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- S.A. NO.640 OF 1997 ------------------------------- DATED THIS THE 15TH DAY OF DECEMBER, 2010 JUDGMENT The substantial questions of law formulated in the appeal are as follows: ''i)Whether the lower appellate court is right in setasiding the well versed judgment rendered by the trial court? ii)Whether the lower appellate court is right in allowing the appeal without considering Ext.A3 order of the Land Tribunal in S.M.No.165/88? iii) Whether the lower appellate court is right in coming to the conclusion that the defendants came into possession of the suit properties on the basis of Exts.B1 and B2 documents?'' 2. The plaintiff in O.S.No.57/1991 on the file of the Munsiff's Court, Hosdrug is the appellant. The appeal is directed against the judgment and decree in A.S.No.38/1993 on the file of the Sub Court, Hosdrug. Pending appeal the sole appellant died. Her legal heirs are impleaded as additional 2nd appellant and -2- S.A.No.640/97 additional third respondent. The suit was filed for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property or in any other way interfering with the plaintiff's peaceful possession and enjoyment of the same. The trial court decreed the suit with costs as prayed for. The appeal A.S.No.38/93 preferred by the defendants was allowed, the decree and judgment passed by the trial court were set aside and the suit was dismissed by the Appellate Court. The parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 3. It is the plaintiff's case that the plaint schedule property originally belonged to the thavazhy of the plaintiff's husband, namely, Chandrasekharan Nambiar and that on his death, the property was partitioned as per Ext.A1 partition deed No.1659/1972 dated 3/10/1972. It is averred that the C schedule property in Ext.A1 was set apart to the plaintiff and her children and that the plaint schedule property is part of item No.4 of C schedule in Ext.A1. It is the plaintiff's case that the plaintiff is in -3- S.A.No.640/97 possession of 1 acre and 72 cents out of item No.4 of C schedule in Ext.A1 and the remaining portion is in the possession of the various tenants. 4. The defendants denied the plaint averments and prayed for dismissal of the suit. According to the defendants, the schedule property was taken on oral kuzhikanam right by Kottayil Kunhambu Nair from Chandrasekharan Nambiar, the predecssor-in- interest of the plaintiff and that Kottayil Kunhambu Nair assigned his right over the property in favour of one Koman as per document No.3076/2962, marked as Ext.B1. Subsequently, Koman assigned his right in favour of Birikkulam Jumayath as per Ext.B2 of the year 1968. 5. Both trial court as well as Appellate Court appreciated the contentions of the respective parties on the basis of the oral and documentary evidence. PW1 was examined and Exts.A1 to A3 were marked on the side of the plaintiff. DWs.1 to 4 were examined and Exts.B1 to B4 were marked on the side of the -4- S.A.No.640/97 defendants. Exts. C1 to C4 were marked as court exhibits and Exts.X1 and X2 were marked as third party exhibits. 6. It is admitted that the plaint schedule property originally belonged to the tavazhy of the deceased Chandrasekharan Nambiar. Plaintiff is his wife. Ext.A1 is a partition deed which shows that the property of the deceased Chandrasekharan Nambiar was partitioned in the year 1972. His wife and children are the executant Nos.8 to 12 as one group therein. C schedule is the property set apart to the share of executant Nos. 8 to 12. The courts below appreciated the contentions of the parties on the basis of the defence set up by the defendants. The executants 8 to 12 have derived only jenm right over the property, since the plaint schedule property was already leased out to one Kunhambu Nair as per oral entrustment. The definite case of the defendants is that the property ultimately came into their hands, who are the office bearers of the Jumayath Palli Committee. -5- S.A.No.640/97 7. The Lower Appellate Court, on a perusal of the oral evidence of PW1, observed that no convincing and satisfactory explanation is seen forthcoming from PW1 as to why the plaintiff has not paid any tax for a long period from 1972 to 1989. 8. The learned Munsiff held that Ext.A3 copy of the dismissal order of the Land Tribunal in SMC. No.165/1988 has become final and that the defendants are bound by the said order. The trial court relied on Exts.A1 and A2 to show that the plaintiff has got possession over the plaint schedule property. On the other hand, the defendants relied on Exts.B1 to B4 to show that they are in possession of the properties. The trial court appreciated the oral and documentary evidence. The trial court on the basis of Ext.A3 order of the Land Tribunal concluded that the disputed property in Ext.A3 proceedings is the suit property and that the claim of A party was rejected by the Land Tribunal as per Ext.A3. The trial court held that A party is not in possession of the disputed property and that it is in the actual possession of B party, who is the plaintiff -6- S.A.No.640/97 in the suit. On the basis of the order of the Land Tribunal (Ext.A3), the trial court held that the plaintiff has succeeded in establishing her title over the plaint schedule property and therefore a decree was passed by the trial court in terms of the prayer in the plaint. 9. The Appellate Court did not rely on Ext.A3 order passed by the Land Tribunal. The Appellate Court held that the proceedings of the Land Tribunal has been initiated as suo motu proceedings and not on the basis of any application filed by the alleged tenant. The Appellate Court also observed that the reason for cancellation of the suo motu proceedings is not that the tenants were not in possession of the property, that there is absolutely no conclusive findings with respect to the possession of the property in Ext.A3, that it is not mentioned in the order that the Land Tribunal has made any other enquiries to find out who is in possession of the property and who is the cultivating tenant. The Appellate Court also noticed that it is an undisputed fact that the jenm right originally belonged to the thavazhy of the deceased -7- S.A.No.640/97 Chandrasekharan Nambiar and therefore, Ext.A3 will not carry much evidenciary value. According to the learned Judge, whether the order passed by the Land Tribunal has become final and whether the defendants were able to establish their tenancy right before the Land Tribunal appears to be immaterial so far as issues in a suit for injunction are concerned. The Lower Appellate Court disagreed with the findings arrived at by the trial court on an appreciation of the facts and based on the oral and documentary evidence. The Lower Appellate Court held on facts that the executants 8 to 12 in Ext.A1 have no occasion to possess the property in pursuance of the said partition in the year 1972 and that is the reason why they failed to remit tax for the period from 1972 to 1989 and that they obtained a single land revenue receipt, only after the commencement of suo motu proceedings by the Land Tribunal. The Lower Appellate Court also taken note of the fact of the production of Ext.B3 rent receipt of the year 1959 in favour of the original lessee. The receipt was issued by deceased -8- S.A.No.640/97 Chandrasekharan Nambiar, who belonged to the thavazhy. The Appellate Court held that Exts.B3 would indicate that the lessee Kunhambu Nambiar, the assignor of Ext.B1, was holding the property under the tarwad of the said Chandrasekharan Nambiar. Ext.B1 is a registered lease deed executed by Kunhambu Nair in favour of one Koman in the year 1961. The recitals in Ext.B1 would reveal that the property originally belonged in jenm to the tarwad of Chandrasekharan Nambiar and that the assignor was holding the property on oral entrustment from 1957 onwards. The Appellate Court also referred to Ext.B2 registered assignment deed of kuzhikanom right by the aforesaid Koman in favour of the Jumayath Palli committee in the year 1968. Exts.C1 and C2 are the report and plan submitted by the Commissioner. The Appellate Court on facts held that the Commissioner had identified the properties covered by Exts.B1 and B2 and reported that these documents relate to the very same property. The learned Munsiff has disbelieved the evidence of DWs.3 and 4 in the absence of -9- S.A.No.640/97 signature of Chandrasekharan Nambiar in Ext.X1. The learned Sub Judge held that as far as the suit is concerned, Exts.X1 and X2 appears to be immaterial and that Exts.C1 and C2 will make it clear that both sides have intended the property shown by the Commissioner in Ext.C2 plan as the disputed property. The Appellate Court disbelieved the oral evidence of DWs.3 and 4 and held that Exts.B1 and B2 registered documents coupled with Ext.B3 rent receipt would be sufficient to prove that the property was leased out to the original tenant, Kunhambu Nair in the year 1959, as contended by the learned counsel for the defendants. After appreciating the entire evidence on record, the learned Sub Judge differed from the findings of the trial court and rightly observed that the only point involved for determination is whether the plaintiff was put in possession of the plaint schedule property from the date of Ext.A1. The learned Judge on evidence held that the plaintiff has failed to substantiate her contention with the help of Exts.A1 to A3 and the oral evidence of PW1 and that the -10- S.A.No.640/97 defendants have succeeded in proving the fact that they are in possession of the property by virtue of Exts.B1 to B4. 10. The findings entered by the Lower Appellate Court are based on facts, evidence and circumstances of the case. The Lower Appellate Court on the very same materials appreciated the facts and found that the plaintiff has failed to prove her possession of the property. Since the decision was taken on the basis of the materials on record, I am of the view that the appellant has failed to make out valid grounds for interference in the appeal filed under Section 100 of the C.P.C. No question of law much any substantial questions of law arise for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.