IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 AS.No. 554 of 1995(C) ------------------------------- OS.29/1992 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PLAINTIFF ----------------------- THAZHATHE VATA PARAMBIL ILLATH GANAPATHI NAMBOODIRI, SON OF EASWARAN NAMBOODIRI, NOW RESIDING AT ALAKAPURI, CHERUTHAZHAM, KANNUR DISTRICT FROM VILAYANCODE, KANNUR DISTRICT. BY ADVOCATE MR.K.DIVAKARAN NAIR RESPONDENT(S): DEFENDANT -------------------------- THAZHATHE VATTAPARAMBETH ILLATH EASWARAN NAMBOODIRI , SON OF EASWARAN NAMBOODIRI, KARANTHAT, RAMANTHALI, KANNUR DISTRICT. BY ADVOCATE MR.K.V.SOHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO.554/1995 JUDGMENT None appears for the appellant. There is also no representation for the appellant when the case was called on for hearing today. Dismissed for default. 27.01.2009 SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S.No. 554 OF 1995 -------------------------------------------------- Dated this the 3rd day of April, 2009 J U D G M E N T Plaintiff in O.S.29 of 1992 on the file of Sub Court, Payyannur is challenging dismissal of the suit in this appeal. Respondent is his own brother, the defendant in the suit. Plaint schedule property is 1 acre 60 cents in R.S.No.236/1A1A1A and 83/1 of Ramanthali village. The plaint schedule property admittedly originally belonged to Easwaran Namboodiri, father of appellant and respondent as per registered marupattam 1846/1962. Under Ext.A2 assignment deed, the father sold 2.50 acres out of the property obtained by him under registered marupattam 1846/1962. Ext.A2 was executed on 8.8.1973. Later on 21.10.1974, the father sold the 5 acre to the plaintiff under Ext.A1 registered sale deed 2117/1974. Appellant thereafter under Ext.B1 assigned 3.40 acres obtained under Ext.A1, in favour of Govindan Namboodiri, another brother. That assignment deed was executed on 13.2.1981. Thereafter on 27.1.1984 appellant again executed Ext.A4 sale deed in favour of the very same brother Govindan Namboodiri in respect of the A.S.554/1995 2 very same property stating that a mistake was crept in the description of the property in Ext.B1 sale deed. The suit was filed on 22.3.1989 before Munsiff Court, Payyannur seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the property claiming that plaint schedule property is the balance extent available with him in his possession, out of the property obtained under Ext.A1 and alleging that respondent is attempting to trespass into the property. The suit was later returned for presentation before the proper court as court fee was paid under section 27(a) of Kerala Court Fee and Suit Valuation Act and the Munsiff has no pecuniary jurisdiction to try the suit. Plaint was thereafter presented before Sub Court, Payyannur. 2. Respondent resisted the suit contending that plaint schedule property is not part of the property obtained by the appellant under Ext.A1. It was also contended that the property covered under Ext.A1 is inclusive of the property originally transferred under Ext.A2 and as earlier to execution of Ext.A1, the father had transferred the property covered under Ext.A2, appellant cannot claim any right or possession to the plaint schedule property covered under Ext.A1. It is contended that A.S.554/1995 3 appellant is not in possession of property and it is in his possession under Ext.A2 and therefore the suit is to be dismissed. 3. Learned Sub Judge framed the necessary issues. On the evidence of PWs 1 and 2, Dws 1 and 2, Exts.A1 to A15, B1 to B11 and C1 and C2, learned Sub Judge dismissed the suit holding that appellant did not establish his title to the plaint schedule property and he did not establish that the plaint schedule property forms part of property obtained by him under Ext.A1. The judgment is challenged in the appeal. 4. The points for consideration are (1) Whether appellant can claim plaint schedule property under Ext.A1 sale deed as it is the balance left with him after Ext.B1/A4 sale deeds ? (2) Whether the property covered under Ext.A1 is inclusive of the property transferred under Ext.A2 ? (3) Whether appellant has established his possession of the plaint schedule property and if so whether he is entitled to the decree for injunction ? 5. Learned counsel appearing for appellant and respondent were heard. A.S.554/1995 4 6. Though in a suit for injunction the question of title need not be decided, as the appellant contended that he has title to the property under Ext.A1 sale deed executed by his father and the plaint schedule property forms part of that property and court fee was paid under section 27(a) of Kerala Court Fee and Suit Valuation Act, issue No.4 was framed by the trial court whether appellant has title to the property. It is admitted case that the plaint schedule property forms part of the property obtained by the father under registered marupattam 1846/1962. It is also admitted that out of the property obtained under the registered marupattam the father sold the southern portion having an extent of 2.50 acres in favour of the respondent under Ext.A2 sale deed. Therefore subsequent to 8.8.1973, the date of execution of Ext.A2, Easwaran Namboodiri, the assignor under Ext.A1 who is the father of the appellant was having only right and title to the remaining portion of the property obtained under registered marupattam 1846/1962. It could be on the property covered under Ext.A1 less the property transferred under Ext.A2. Ext.A1 sale deed was subsequently executed by father Easwaran Namboodiri in favour of the appellant on 21.10.1974. Under Ext.A1 the property transferred is shown as 5 acres A.S.554/1995 5 stating that the property was obtained under registered marupattam 1647/1983. There is no recital in Ext.A1 that out of the property obtained under registered marupattam 1846/1962, any portion was earlier transferred in favour of the respondent, even though Ext.A1 was executed more than one year after the execution of Ext.A2 and 2.50 acres was transferred to the respondent. As rightly pointed out by learned counsel appearing for respondents, Ext.A2 establishes that out of the property obtained by the father under the registered marupattam 1846/1962, the father transferred the southern 2.50 acres in favour of the respondent. If that be so, what could be transferred by father after Ext.A2 is only the northern portion of the property covered under registered marupattam 1846/1962. But Ext.A1 shows it is in respect of the whole property as even the southern boundary is not shown as the remaining property obtained under registered marupattam of 1962. Therefore if the property transferred under Ext.A1 was excluding the property covered under Ext.A2, the southern boundary of the property transferred under Ext.A1 should be either the property transferred under Ext.A2 or the property given to the other son, the respondent. But as per Ext.A1 the southern boundary is the A.S.554/1995 6 property in the possession of the appellant which was the subject matter of another litigation and declared to be that of the appellant. Thus the southern boundary is not the remaining property covered under the registered marupattam but a different property. Hence it is clear that Ext.A1 takes in the entire property inclusive of property earlier transferred under Ext.A2. The argument of the learned counsel appearing for the appellant is that Ext.A1 shows that there was an oral lease in 1972 and therefore the property referred as in the possession of appellant could be the property obtained under Ext.A1 and therefore based on the southern boundary, case of the respondent cannot be upheld. What is stated in Ext.A1 is that the property covered thereunder was orally entrusted to the appellant in 1972 and in respect of the said property Ext.A1 sale deed is being executed. If that be so, the entire property entrusted in 1972 is the subject matter of Ext.A1 sale deed. If that be so, the southern boundary cannot be the same property which was entrusted earlier under an oral entrustment of 1972. It could only be some other property in the possession of the appellant. Ext.B1 shows that the southern boundary of the property transferred under Ext.B1 is the property in the A.S.554/1995 7 possession of appellant himself. If that be so, the southern boundary shown in Ext.B1 could only be the southern boundary shown in Ext.A2. If that be so, case of the respondent that the property transferred under Ext.A1 takes in the property originally transferred in his favour under Ext.A2 is correct. 7. The learned counsel appearing for the respondent also pointed out that after obtaining Ext.A1 sale deed, appellant transferred the property in favour of another brother Govindan Namboodiri on 13.2.1981 and in that document also the southern boundary is the same southern boundary and not the remaining property in his possession and there is no case that any portion of the property obtained under Ext.A1 was retained by the appellant. The southern boundary is shown as the property in possession of respondent Easwaran Namboodiri. Ext.B1 also does not show that any portion of the property obtained under Ext.A1 was obtained while executing Ext.B1 sale deed. True, Ext.A4 sale deed was later executed by the appellant claiming that a mistake was crept in Ext.B1. But Ext.A4 is not a rectification deed. Instead, it is an assignment deed whereunder the property which was originally transferred under Ext.B1 was again transferred to the same assignee under Ext.B1. When A.S.554/1995 8 under Ext.B1 the property was already transferred by the assignor and he did not retain any right with him to execute another sale deed later on, Ext.A4 cannot be relied on. On the face of Ext.A4 it is absolutely clear that it was created for the purpose of claiming a right in the plaint schedule property. The appellant could succeed in establishing that he has right and title to the plaint schedule property, only by establishing that the plaint schedule property forms part of the property obtained under Ext.A1 and it is the balance less the property alienated under Ext.B1 and that property was available with his father after Ext.A2 transfer. If the appellant had produced the registered marupattam 1846/1962 obtained by his father and identified that property and thereafter demarcated the property transferred under Ext.A2 by the father in favour of the respondent and it is shown that plaint schedule property forms part of the remaining property, his claim could have been upheld. As the appellant did not take out a commission or even produce the registered marupattam 1846/1962 obtained by his father and did not make any attempt to establish that out of the property obtained by the father, excluding the property transferred under Ext.A2, the property covered by Ext.A1 was A.S.554/1995 9 retained by the father and plaint schedule property forms part of that property, his claim for title to the property cannot be upheld. Moreover, as stated earlier from the available records it is absolutely clear that the property covered under Ext.A1 also takes in the property covered by Ext.A2 and if that be so, when the father had already transferred the property covered under Ext.A2 appellant under Ext.A1 cannot claim title to that property. Southern boundary of Ext.B1 establishes that the property which lies to the south of the property transferred thereunder is in the possession of the respondents. Plaint schedule property, according to the appellant, lies to the south of the property covered under Ext.B1 which is admitted to be in the possession of respondent even in Ext.B1. If that be so, appellant cannot claim possession of that property. In such circumstances appellant is not entitled to get a decree for injunction based on his title or possession. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb