IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 RSA.No. 1129 of 2011() ---------------------- AS.123/2003 of SUB COURT, CHERTHALA OS.500/1994 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/DEFENDANTS: ------------------------------------------ 1. ABDULKHADER, PUTHENVEETTIL FROM ARANKASSERI, PANAVALLY, CHERTHALA. 2. RUKKIA BEEVI, W/O.ABDULKHADER, DO. DO. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): PLAINTIFFS: -------------------------- 1. SAHUDUNATH BEEVI ALIAS ISHA BEEVI, SUMEER MANZIL (PUTHENPURAYIL), PANAVALLY P.O., CHERTHALA-688 566. 2. ABOOBACKER, S/O.KOCHU MUHAMMED, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/11/2011, ALONG WITH RSA NO. 1131 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA Nos.1129 & 1131 of 2011 ............................................ DATED THIS THE 15th DAY OF NOVEMBER, 2011 JUDGMENT Appellants are defendants in O.S.500 of 1994 and O.S.805 of 1994 on the file of Principal Munsiff Court, Cherthala. Respondents in RSA 1129 of 2011 are the plaintiffs in O.S.500 of 1994 and the respondents in RSA 1131 of 2011 are the plaintiffs in O.S.805 of 1994. Plaint schedule property in both the suits originally belonged to Kochunni Mohammed, which was divided under Ext.A4 partition deed and alloted to the legal heirs. O.S.500 of 1994 was instituted seeking a decree for permanent prohibitory injunction. Plaint schedule properties therein are two items. Item No.1 is claimed by the first respondent under Ext.A1 sale deed and item No.2 by the second respondent under Ext.A2 settlement deed. Respondents would contend that they are in possession of the plaint schedule properties and appellants have no manner of right or possession over the same and they have no right to trespass into the property. A decree for permanent prohibitory injunction was sought. RSA 1129 & 1131/11 2 2. Appellants resisted the suit contending that the plaint schedule properties do not belong to the respondents and they are not in possession of the property and item No.2 of the plaint schedule property consists of paddy field and though respondents claim that there was virivu (excess land), the claim is false and first appellant executed Ext.A8 gift deed in favour of his wife, the second appellant and the property of the first appellant consisted 11 cents of garden land together with sand heaps in Survey No.68/7/1 and 3 cents of sand heaps in Survey No.68/1/1 and the property of the respondents is in survey No.68/1. A mango tree is standing in the property of first appellant and respondents obstructed the appellants from cutting the mango tree. They have no right. The title of the respondents have been lost by adverse possession. 3. O.S.805 of 1994 was instituted by the respondents in RSA 1131 of 2011 to set aside Ext.A8 settlement deed executed by the first appellant in favour of the second appellant contending that first appellant had no right over the plaint schedule property to be transferred in favour of the second appellant. It was contended that the plaint schedule property originally belonged to RSA 1129 & 1131/11 3 Kochunni Mohammed and after his death, properties were divided by the legal heirs under Ext.A4 partition deed in 1120 ME. Ext.A4 provides that if any property was omitted to be mentioned in any of the schedules, only Kochunni Mohammed will be entitled to the property. After his death, Ext.A3 partition deed was executed by the legal heirs. Ext.A3 provides that if any property is left, it would devolve on Ibrahimkutty and the father of respondents. Ahammed, the brother of the father of respondents, has no right over any property which was omitted to be included in Ext.A3 partition deed. The plaint schedule property was not included either in Ext.A4 or Ext.A3. Therefore respondents being the legal heirs of the father alone are entitled to the plaint schedule property and under Ext.A9, the property cannot be divided by the legal heirs as if it belonged to Ahammed, as it was not a property alloted to Ahammed under Ext.A4 partition deed and therefore under Ext.A8, first appellant has no right to transfer it to the second appellant and second appellant, his wife is not entitled to claim any right. It is on that basis, Ext.A8 was sought to be set aside. 4. Appellants resisted the suit contending that plaint RSA 1129 & 1131/11 4 schedule property was alloted to Ahammed under Ext.A4 partition deed and on the death of Ahammed, the legal heirs divided the property under Ext.A9 and as this is the property alloted to first appellant, he is entitled to transfer the property to his wife under Ext.A8 sale deed and the document cannot be set aside. It was also contended that without setting aside Ext.A9, respondents are not entitled to get Ext.A8 alone set aside. Both the suits were tried jointly. 5. Learned Munsiff, on the evidence found that item No.1 of the plaint schedule properties in O.S.500 of 1994 was settled in favour of the first appellant and Ramlath Beevi obtained that property as per Ext.A13 settlement deed, who in turn obtained it as the share alloted under Ext.A3 partition deed. So also, it was found that item No.2 of the plaint schedule property was set apart in favour of Kunju Mohammed under Ext.A15 as item No.1 therein and Ext.A14 establishes that Abdu was alloted 11 cents of paddy fields and 4 cents of sand heaps which in turn was sold to Kochunni Mohammed under Ext.A15 and therefore second respondent has title to item No.2 of the plaint schedule property. Learned Munsiff also found that Commissioner has properly RSA 1129 & 1131/11 5 identified the plaint schedule properties in O.S.500 of 1994 and though appellants claim right over the property, none of them got themselves examined and respondents have established their possession and therefore held that appellants are not entitled to trespass into the property and respondents are entitled to the decree for injunction. In O.S.805 of 1994, learned Munsiff found that both parties admit that properties originally belonged to Kochunni Mohammed and that property was alloted to Kochunni Mohammed under Ext.A4 partition deed and plaint schedule property was one of the items alloted to him and therefore on his death, other legal heirs cannot claim any right over the plaint schedule property or divide it under Ext.A9 or first defendant could assign the property under Ext.A8 in favour of second appellant. Learned Munsiff also found that under Ext.A4, it was expressly provided that if any property is left to be divided and not included therein, only Kochunni will be entitled to that property. On the death of Kochunni, under Ext.A3 partition deed, the legal heirs divided the property. It also provided that if any item is left out, only the father of respondents and Ibrahimkutty are entitled to the property and therefore respondents in RSA RSA 1129 & 1131/11 6 1131 of 2011 have title to the property and therefore Ext.A8 is liable to be set aside. Both the suits were decreed in favour of respondents. Appellants challenged the decree before Sub Court, Cherthala in A.S.123 of 2003 and A.S.130 of 2003 respectively against the decree in O.S.500 of 1994 and O.S.805 of 1994. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in these second appeals. 6. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that though respondents claimed in O.S.500 of 1994 that under Ext.A1 and A2, respondents obtained excess land, report of the Commissioner shows that there was no excess land and in such circumstances, a decree for injunction should not have been granted. Learned counsel also argued that respondents in O.S.805 of 1994 are not entitled to a decree to set aside Ext.A8 sale deed, without setting aside Ext.A9 partition deed by which the property was alloted to the first respondent and therefore the decree granted by courts below is not sustainable. 7. On hearing the learned counsel, I do not find any RSA 1129 & 1131/11 7 substantial question of law involved in the appeal. As far as O.S.500 of 1994 is concerned, respondents claimed right over the plaint schedule properties under Ext.A1 and A2 sale deed. Both the trial court and first appellate court, on proper appreciation of the evidence found that respondents have right and title to the property under Ext.A1 and A2. It was also found that respondents have established their possession. In the light of that factual finding appellants cannot challenge the decree for injunction granted by courts below. In O.S.805 of 1994, second appellant is claiming right under Ext.A8 executed by the first appellant. First appellant could transfer the right under Ext.A8, only if he obtained the right under Ext.A9. Under Ext.A9, first appellant could claim right, only if the plaint schedule property was one of the items alloted to him under Ext.A4 partition deed. When Ext.A4 partition deed establishes that plaint schedule property was not alloted to Ahammed, under whom first appellant claimed title, the finding of the courts below that Ext.A8 is liable to be set aside is perfectly correct. When Ext.A3 and A4 establish that father of respondents have title to the property, as both the partition deeds provide that if any property is omitted to RSA 1129 & 1131/11 8 be included, it will not be available to all the other sharers but only to the sharer named therein. When there was no necessity to set aside Ext.A8 as it will not be binding on the plaint schedule property or the respondents, they sought a decree to set aside it only because of the cloud cast on their title. Hence there is no necessity to set aside Ext.A9 as respondents are legally entitled to ignore the same. In such circumstances, appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk