IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 FAO.No. 215 of 2003() --------------------- AS.87/1999 of II ADDL. DISTRICT COURT, KOZHIKODE OS.30/1996 of PRL.SUB COURT, KOZHIKODE .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. PILACHERI CHANTHANKUTTY S/O. RAMAN, AGED 56 YEARS, IYYAD AMSOM, VEERAMBRAM DESOM OF KOYILANDY TALUK. 2. PILACHERI SOUMINI W/O. CHANDANKUTTY, AGED 47 YEARS D/O. ANDI, IYYAD AMSOM, VEERAMBRAM DESOM OF KOYILANDY TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS/APPELLANTS/PLAINTIFFS ------------------------------------ 1. POYILIL RAJAN NAMBI, RESIDING AT NAGATHINGAL, S/O. NARAYAN UNNI NAMBI, AGED 50 YEARS, MANAGING TRUSTEE, FOR NANMINDA AMSOM DESOM, KOZHIKODE TALUK. (DIED) 2. POYILIL NARAYANAN NAMBI, S/O. NARAYANAN UNNI NAMBI, AGED 61 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. 3. POYILIL UNNIMAYA MANAYAMMA, RESIDING AT NAGATHINGAL, D/O. KESHAVAN NAMBI, AGED 67 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. 4. POLYILIL SAVITHRI ALIAS RADHA MANAYAMMA, D/O. NARAYANAN UNNI NAMBI, AGED 57 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. 5. POYILIL SATYABHAMA MANAYAMMA, D/O. NARAYANAN UNNI NAMBI, AGED 48 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. -2- F.A.O.NO.215/03 6. POYILIL SULOCHANA MANAYAMMA, D/O. NARAYANAN UNNI NAMBI, AGED 46 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. 7. POYILIL INDIRA MANAYAMMA, D/O. NARAYANAN UNNI NAMBI, AGED 44 YEARS, NANMINDA AMSOM DESOM, KOZHIKODE TALUK. 8. POYILIL RALTHNAKUMARI ALIAS RATHNA KOMALAM, D/O.NARAYANAN UNNI NAMBI, AGED 41 YEARS, -DO- -DO- SUPPL. 9 AMMINI ANTHARJANAM, W/O.RAJAN NAMBI AGED 50 YEARS. '' 10. RANJITHA, DAUGHTER, AGED 26 YEARS. '' 11. RANJITH, SON, AGED 24 YEARS. '' 12. THANUJA, DAUGHTER, AGED 20 YEARS. ALL A RE RESIDING AT NANGATHINGAL POYILIL ILLATH, NANMINDA POST, KOZHIKODE 673613. ( SUPPLEMENTAL RESPONDENTS 9 TO 12 ARE IMPLEADED AS PER ORDER DATED 15/6/09 IN I.A.NO.1225/06) ADV. SRI.T.SETHUMADHAVAN FOR R1,3,5 6 & 7 SRI.PUSHPARAJAN KODOTH FOR R1,3,5, 6 & 7 SRI.K.JAYESH MOHANKUMAR FOR R1,3, 5, 6 & 7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.934/04 & 2426/03 IN F.A.O.NO.215/03 ------------ DISMISSED 28/7/2010 Sd/- HARUN-UL-RASHID, JUDGE. HARUN-UL-RASHID,J. ------------------------------ F.A.O.NO.215 OF 2003 ------------------------------- DATED THIS THE 28TH DAY OF JULY, 2010 JUDGMENT Defendants in O.S.No.30/96 on the file of the Sub Court Kozhikode are the appellants. This appeal is directed against the order of remand passed in A.S.No.87/99 on the file of the District Court, Kozhikode. The suit was filed for permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property or from changing the physical features of it and alternatively it is prayed that in case it is found that the defendants are in possession of the property, a decree may be passed to recover the suit property on the strength of title. The trial court held that the plaintiffs are not entitled to get the reliefs prayed for in the suit and dismissed the suit. The Lower Appellate Court set aside the judgment and decree of the trial court and remanded the case for fresh disposal after issuing a commission. The parties hereinafter are referred to -2- F.A.O.215/2003 as the plaintiffs and defendants as arrayed in the suit. 2. The defendants disputed the title, possession and identity of the plaint schedule property. The property scheduled in the suit is having an extent of 3.14 cents comprised in R.S.No.230/1 of Nanminda Village. It is the plaintiffs case that the plaint schedule property belongs to the Illom of the plaintiffs, that Paralad Bhagavathy Temple and Kuruvilly Temple are situated in the plaint schedule property and that the property is included in patta No.5. The plaintiffs filed the suit on the allegation that the defendants by virtue of some forged and manipulated documents, made an attempt to trespass into the property, that the lst plaintiff's father filed a suit as O.S.No.805/89 against the defendants and that during the pendency of the suit the defendants trespassed into the property and effected improvements in the property. Subsequently, that suit was dismissed and the legal heirs were not impleaded after the death of the plaintiff. The present suit was filed by the trustees of the temple for the afore-mentioned reliefs. -3- F.A.O.215/2003 3. The defendants claim title to the property as tenants under the Illom. According to the lst defendant, he got lease of two holdings which are having 96 cents and 95 cents respectively in R.S.No.250/1 and that on the basis of the lease he obtained purchase certificate from the Land Tribual. The 2nd defendant, who is the wife of the lst defendant, claimed title in respect of 70 3/4 cents of land in R.S.No.241/1 as per Ext.B21 assignment deed. She also obtained purchase certificate and resisted the suit disputing the identity of the plaint schedule property. The trial court observed that in spite of such contentions raised, the plaintiffs have not chosen to take out a commission to establish the identity of the property. The trial court also observed that the definite case of the defendants is that they have got title and possession over the property scheduled in the plaint. The suit was dismissed finding that the plaintiffs are not entitled to the reliefs 4 sought for. The trial court examined the oral evidence of the plaintiffs and defendants and their witnesses in detail and observed that if the evidence adduced is -4- F.A.O.215/2003 taken in totality, the only conclusion that can be drawn is that the plaintiffs failed to prove possession or title of the plaint schedule property and further held that the evidence adduced in this case probabilises the defendants' case that they are in possession of 261 3/4 cents of property in the plaint schedule. The trial court dismissed the suit. 4. The Lower Appellate Court did not agree with the view taken by the trial court on the finding that the plaintiffs have failed to prove the identity of the plaint schedule property. The Lower Appellate Court also observed that if the defendants failed to prove the tenancy right claimed under plaintiffs' Illom, it can be safely found that the plaintiffs' Illom is still in possession of the plaint schedule property, though the act of possession is only attending and conducting the festival once in an year and further held that it is for the defendants to prove their right, possession and identity over the portion of the plaint schedule property and that if the defendants failed to prove the same, the plaintiff will be entitled for a decree of injunction. This finding is -5- F.A.O.215/2003 recorded without appreciating the contentions of the defendants. The contention of the defendants is that they were tenants under the plaintiffs' Illom, that subsequently they approached the Land Tribunal and the Land Tribunal issued purchase certificate and therefore they are absolute owners of the property. The contention was not properly appreciated by the Lower Appellate Court. The finding of the Appellate Court that it is for the defendants to prove their right, title and identity over the portion of the plaint schedule property, cannot be justified. 5. This Court is not examining the legality of the findings entered either by the trial court or by the Lower Appellate Court for the reason that this Court is not inclined to interfere with the order of remand passed by the Lower Appellate Court. The property was not properly identified. The trial court as well as the Lower Appellate Court held that identification of the property is necessary and for that purpose a Commissioner is to be deputed. It is for the plaintiffs to prove the title and possession over the suit property for getting reliefs claimed in the -6- F.A.O.215/2003 suit. Therefore, the plaintiffs shall file an application for appointment of a Commissioner to measure and identify the property with the assistance of a Taluk Surveyor. The parties are at liberty to raise all the contentions available to them and to adduce additional evidence, if so advised. The trial court shall dispose of the suit de novo, after considering the contentions of the parties, within a period of nine months from the date of appearance of the parties. The parties shall appear before the trial court on 19th August, 2010. Appeal is allowed. The decree and judgment of the courts below are set aside. The case is remanded. No order as to costs. Transmit the records immediately. HARUN-UL-RASHID, JUDGE. kcv