IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 RSA.No. 293 of 2011 --------------------------------- AS.277/2004 of II ADDL. DISTRICT COURT, PALAKKAD OS.282/1996 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/5th DEFENDANT: THATHA, D/O.LATE CHAMI, AGED 48 YEARS, KOTTOTIL, THOLANNUR AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENTS/RESPNTS/PLNTIFF, D4, D6 & LR OF DECEASED D1: 1. SURESH, S/O.BHASKARAN, AGED 43 YEARS, KADANGODO, PERUNGOTUKURUSSI, ALATHUR TALUK, PALAKKAD DISTRICT - 678 574. 2. VASU, S/O.LATE CHAMI, AGED 52 YEARS, KOTTOTIL, THOLANNUR AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT - 678 722. 3. KUTTAPPAN, S/O.LATE CHAMI, AGED 42 YEARS, DO. DO. 4. KANNAN K.C., S/O.LATE CHAMI, AGED 36 YEARS, DO. DO. 5. CHINNA, D/O.LATE CHINNELAN, AGED 51 YEARS, KUNDUPARAMBU, KUNISSERY, PARALI VILLAGE, PALAKKAD DISTRICT - 678 681. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.293 of 2011 --------------------------------------- JUDGMENT Fifth defendant in O.S.No.282/1996 on the file of Munsiff's Court, Alathur is the appellant. First respondent is the legal heir of the original plaintiff. Other respondents are the other defendants in the suit. Plaintiff instituted the suit seeking a decree for injunction contending that plaint schedule property belongs to him and is in his possession and defendants have no manner of right or title to the property. It was contended that defendants are attempting to trespass into the plaint schedule property and therefore, a decree is to be granted restraining trespass. It is contended that plaint schedule property originally belonged in jenm to Oorakam Devaswom and Aniyattu family had kanam right over the same. Father of the plaintiff obtained the plaint schedule property on lease sixty years back and thereafter, he had been in possession and enjoyment of the property and on his death, it devolved on the children and subsequently, on an oral partition of 1960, plaint schedule property was allotted to the share of the plaintiff and since then, RSA 293/2011 2 he has been in possession of the same. 2. Defendants filed a joint written statement contending that plaintiff has no right, title or possession to the plaint schedule property. Plaint schedule property originally did not belong to Aniyattu family, but belong to Kizhakke Kuttikottu family and Palan, the father of the defendants was a labourer of that family and Parukutty Amma, a member of the thavazhi, gave the plaint schedule property to Palan for cultivation sixty years back and since then, he has been in possession of the property and on his death, it devolved on the defendants and they are in possession of the property. Plaint schedule property was shown as Item No.6 in the partition deed executed between the members of Kuttikottu family in 1927 and Malampuzha canal runs through the plaint schedule property. Subsequent to the acquisition, the property of the defendants is situated in R.S.No. 208/8 and is having a total extent of 1.36 acres and they have been in possession of the same and therefore, plaintiff is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of PWs 1 and 2, DW1 and Exhibits A1 to A4 and C1 and C2, granted a decree in favour RSA 293/2011 3 of the plaintiff finding that plaintiff has title and possession to the plaint schedule property. The judgment and decree were challenged before District Court, Palakkad in A.S.No.277/2004. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that being a suit for injunction and title is also set up, the burden is on the plaintiff to establish the title as well as possession and apart from producing Exhibit A1 purchase certificate, which does not show the boundaries of the plaint schedule property and production of Exhibits A2 series basic tax receipts, which will not establish for which property the tax was paid, there is no evidence to prove the title of the plaintiff. It was argued that courts below were not justified in granting a decree based on the weakness of the defence case, as burden is on the plaintiff to establish the title and plaintiff can succeed only on establishing his case. 6. Learned counsel made available the copies of the depositions and the exhibits marked. It was argued that though RSA 293/2011 4 the partition deed of Kuttikottu family was produced, it was omitted to be marked and there is no basis in the finding that extent of the property shown in Exhibit A1, in respect of the property in R.S.No.175/B8, was changed with the property in R.S.No.175/B5 and therefore, courts below were not justified in finding the title with the plaintiff. It was also argued that though an application under Order XLI Rule 27 of Code of Civil Procedure was filed to receive a basic tax receipt obtained by the defendants and a partition deed entered into between the family members of the plaintiff as additional evidence, first appellate court did not receive them and dismissal of the application was illegal. Learned counsel argued that, in any case, the suit is to be remanded back to the trial court for granting an opportunity to the appellant to establish the case. 7. Though defendants disputed the title of the plaintiff and contended that property was given to their father Palan, by a member of the thavazhi of Kuttikottu family, even after 1.1.1970, no basic tax was paid. It will not be the case if the defendants have been in possession of the property as claimed. Though learned counsel argued that a basic tax receipt was produced RSA 293/2011 5 before the first appellate court, which was not received as additional evidence and copy of the receipt was produced to show payment of tax in 1995, that tax receipt will not disclose that it was paid in respect of the plaint schedule property. When DW1 was examined, he was questioned with regard to payment basic tax. DW1 unambiguously deposed that no basic tax was paid till then. In such circumstances, the tax receipt produced before the first appellate court cannot be in respect of the plaint schedule property. 8. Though Exhibit A1 does not show the boundaries of the plaint schedule property and extent of the property in R.S.No. 175/B8 is shown as fifteen cents, extent of the property in R.S.No.175/B5 is shown as thirty eight cents. It is in such circumstances courts below found that there could have been a change of the extent in respect of the property in R.S.Nos. 175/B5 and 175/B8. Trial court and the first appellate court entered a factual finding on the question of possession as well as title based on appreciation of evidence. Though it was contended that survey number of the plaint schedule property shown is not correct and the survey number is not R.S.No.175/B8, but R.S. RSA 293/2011 6 No.208/8, when DW1 was cross-examined, he expressed ignorance about the survey number. At the same time, he admitted all the boundaries of the plaint schedule property. In such circumstances, when plaint schedule property is in R.S.No. 175/B8, over which defendants did not claim any right and appellant would contend that her property is in R.S.No.208/8, I find no substantial question of law involved in the appeal. Appeal is dismissed. 10th March, 2011 (M.Sasidharan Nambiar, Judge) tkv