IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RSA.No. 868 of 2011() --------------------- AS.19/2002 of SUB COURT, PAYYANNUR OS.160/1995 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/APPELLANTS/ PLAINTIFFS ------------------------------ 1. MANGALATH SUMATHI AMMA, D/O.KORAN NAMBIAR,RESIDING AT KOYIPRA, VELLORA AMSOM DESOM, POST VELLORA, KANNUR DISTRICT. 2. MANGALATH GEETHA BAI, D/O.MANGALATH SUMATHI AMMA, KOYIPRA, VELLORA AMSOM DESOM, POST VELLORA, KANNUR DISTRICT. 3. MANGALATH BABURAJ, S/O.MANGALATH SUMATHI AMMA, RESIDING AT KOYIPRA, VELLORA AMSOM DESOM, POST VELLORA, KANNUR DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S)/RESPONDENTS./DEFENDANTS ------------------------- 1. NARIKKATTAN THAMBAYI,W/O.AMBU, RESIDING AT KOYIPRA,VELLORA AMSOM DESOM, VELLORA, KANNUR DISTRICT. PIN 670 306. 2. MURIKKAL NARAYANI, D/O.KUNHATHI, RESIDING AT KOYIPRA,VELLORA AMSOM DESOM, VELLORA, KANNUR DISTRICT. PIN 670 306. 3. NARIKKOTTICHI SUJATHA,W/O.RAJAN, VAYAKKARA, PADIYOTCHAL P.O, PAYYANNUR, KANNUR DISTRICT - 670 307. RSA 868/2011 4. NARIKOTTICHI INDIRA,D/O.NARIKKATTAN THAMBAYI,W/O.AMBU,RESIDING AT KOYIPRA, VELLORA AMSOM DESOM, POST VELLORA, KANNUR DISTRICT - 670 306. 5. NARIKOTTICHI RAJANI,D/O.NARIKKATTAN THAMBAYI, W/O.AMBU, RESIDING AT KOYIPRA, VELLORA AMSOM DESOM, POST VELLORA, KANNUR DISTRICT - 670 306. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.868 of 2011 ............................................ DATED THIS THE 8th DAY OF NOVEMBER, 2011 JUDGMENT The legal heirs of deceased plaintiff in O.S.160 of 1995 on the file of Munsiff Court, Payyannur are the appellants. Respondents are the defendants. Suit was filed for a permanent prohibitory injunction, mandatory injunction and recovery of possession of plaint B schedule property. Plaint A schedule property consists of two items - an extent of 24 cents in R.S.155 1E and 0.182 hectars in survey No.107/1G. Plaint B schedule property is five cents in survey No.107/1G claiming to be part of item No.2 of plaint A schedule property. The deceased plaintiff would contend that the plaint schedule properties originally belonged to Karuvakkal Achutha Kurup, who obtained title under Ext.A4 sale deed 1954/67 and Achutha Kurup assigned the property in favour of the plaintiff on 6.8.1969 under Ext.A1 sale deed. The children of the plaintiff were residing in Bombay and plaintiff used to visit them at Bombay and during his absence, plaint B schedule property being the northern side of plaint A RSA 868/2011 2 schedule property was trespassed upon by the respondents and constructed a shed in the encroached portion. Decree for recovery of possession of plaint B schedule property is sought for. Decree for mandatory injunction is sought for to remove the structure and also a decree for permanent prohibitory injunction in respect of the remaining portion of plaint A schedule property. 2. Respondents resisted the suit contending that plaint schedule property is not identifiable and under Ext.A1, the plaintiff did not obtain possession of 1 acre 20 cents as Achutha Kurup was not in possession of 1 acre 20 cents, but only 60 cents and that property was in R.S.No.155/1E. It is contended that the property of respondents is in R.S.No.107/1G. 75 cents originally belonged to Kuppadakath Vadakkedath Sreedevi Amma. Narikkodichi Paithal Amma orally obtained the property. After her death, it was in the possession of her children Kunhathi Amma and Kunhambu and they obtained purchase certificate as per order of the Land Tribunal in SM No.336/89. First respondent is the wife of Kunhambu and second respondent is the daughter of RSA 868/2011 3 Kunhathi Amma. On the death of Kunhambu and Kunhathi Amma, respondents are in possession of the property, they have absolute title to the property. The other children of Kunhambu and Kunhathi Amma have also right over the property and the suit is bad for non-joinder. Suit was originally dismissed by the trial court and in appeal, it was remanded for fresh disposal. After remand learned Munsiff, as per judgment dated 10.12.2001, once again dismissed the suit holding that appellants did not establish title to item No.2 of the plaint A schedule property or that they have title to plaint B schedule property. Appellants challenged the decree before Sub Court, Payyannur in A.S.19 of 2002. Learned Sub Judge, on re-appreciation of the 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. The argument of the learned counsel is that appellants have title to plaint A schedule property under Ext.A1 sale deed and the assignor Achutha Kurup obtained title under Ext.A4 sale deed and RSA 868/2011 4 plaint B schedule property is part of item No.2 of plaint A schedule property and the findings of courts below that appellants have no title to item No.2 of the plaint schedule property is not correct. It was also argued that when Ext.A5 purchase certificate issued by Land Tribunal was not challenged by filing an appeal before the appellate authority and the jenmom right has been assigned in favour of the plaintiff thereunder, courts below erred in dismissing the suit and a decree as sought for should have been granted. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the plaintiff claimed title to plaint B schedule property being part of item No.2 of plaint A schedule property, based on Ext.A2 sale deed, the assignor Achutha Kurup would get title to the property, only if the assignor under Ext.A4 has title to the property. Learned Munsiff and learned Sub Judge on proper appreciation of the evidence found that item No.2 of plaint A schedule property is not covered by Ext.A4 and A1 and therefore plaintiff has no title RSA 868/2011 5 to the plaint schedule property. In the light of that factual finding, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk