IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 SA.No. 823 of 1996() -------------------- AS.23/1990 of SUB COURT, HOSDRUG OS.41/1987 of MUNSIFF COURT, HOSDRUG ................... APPELLANTS/RESPONDENTS 2, 3, 4 & 5/SUPPL.DEFENDANTS 3, 4, 5 & 6: ------------------ 1. PUTHAN PURAYIL MARRY KUTTY, RESIDING AT KILIYALAM IN KINANOOR VILLAGE, HOSDRUG TALUK, P.O. KOLLAMPARA. 2. REGI CHERIYABN, -DO- -DO- 3. RAJULA CHERIYAN, -DO- -DO- 4. RINI CHERIYAN, -DO- -DO- BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN RESPONDENTS/APPELLANTS & 1ST RESPONDENT/PLINTIFFS & DEFENDANT NO.1: --------------------- 1. KAKOT VAYALIL PREETHA, RESIDING AT KILYALAM, KINNAOOR VILLAGE, HOSDRUG TALUK, P.O.KATTIPOYIL (VIA) NILESHWAR. 2. KAKOT VAYALIL SURESHAN, -DO- -DO- 3. KAKOT ;VAYALIL SATHEESHAN, -DO- -DO- 4. KAKOT VAYALIL DEEPA, -DO- -DO- 5. VIDYADHARAN, CHANGAD, KILIYALAM, KINNANOOR VILLAGE, HOSDRUG TALUK. BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.KODOTH PUSHPARAJAN FOR SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.823 OF 1996 ------------------------------- DATED THIS THE 2ND DAY OF JUNE, 2010 JUDGMENT Defendants in O.S.No.41/87 on the file of the Munsiff's Court, Hosdrug are the appellants. The suit was filed for permanent perpetual injunction to restrain the defendants and their men from trespassing into the suit property and interfering with the peaceful possession and enjoyment of the property. The trial court found that the the plaintiffs have failed to prove their possession over the suit property and the obstruction alleged in the plaint is found to be not true and hence the suit was dismissed. Plaintiffs preferred A.S.No.23/90 before the Sub Court, Husdrug. The Lower Appellate Court set aside the judgment and decree passed by the trial court and passed a decree for permanent perpetual injunction as prayed for by the plaintiffs. The parties hereinafter referred are the plaintiffs and defendants as arrayed in the suit. -2- S.A.823/96 2. The plaint schedule property having an extent of 3 acres and 93 cents comprised in Sy.No.225/1A of Kinanoor Village, Hosdrug Taluk is the subject matter of the dispute between the parties. The disputed property belonged in jenm right to Chervathur Veerabhadra Devaswom. It is the plaintiffs' case that their grandfather Sri Kakkoottil Kannan obtained an oral lease agreeing to pay rent to the Devaswom. It is alleged in the plaint that he had effected improvements in the property. Subsequently, he obtained jenm right as per order in SM.No.1155/1977 on the file of the Deputy Collector-Land Trbunal, Cannanore. Ext.A2 is the said order. On 17/6/1986 Kannan had executed Ext.A4 registered gift deed in favour of the plaintiffs as per document No.2665/1986 of S.R.O. Balal. According to the plaintiffs, ever since the date of gift deed they are in absolute possession and enjoyment of the suit property. Plaintiffs complained the conduct of the defendants in causing frequent obstruction to the peaceful possession and enjoyment of the plaint schedule property. -3- S.A.823/96 3. The 2nd defendant resisted the suit and contended inter alia that the plaintiff had absolutely no title or possession over the suit property. He also denied the oral lease set up by the plaintiffs in favour of Kakkoottil Kannan and further stated that the order in S.M.No.1155/1977 on the file of the Deputy Collector, Land Tribunal, Cannanore is fraudulent and was obtained behind the back of St.Thomas Estate of the 2nd defendant and therefore is not valid and binding on the 2nd defendant. He also contended that Ext.A4 gift deed is a collusive document which has not been taken effect and not acted upon. 4. The 2nd defendant admitted that the suit property along with the remaining extent in the said survey sub division belongs to Cheruvathur Veerabhadra Devaswom in jenm right, that the total extent of property in R.S.No.225/1A of Kinanoor Village is 624 acres and 97 cents, that the entire extent was obtained on kuzhikanam right by Vadakkel Abraham as per kuzhikanam document No.1811/1942 of S.R.O, Hosdrug from the jenmi Devaswom and that the aforesaid -4- S.A.823/96 Abraham obtained the property in his capacity as the Managing Director of Little Flower Plantations Pvt. Ltd. Subsequently, on 5/4/1961 the entire extent was assigned in favour of St. Thomas Estate, which at present is in possession of only 46.74 acres and they have surrendered 48.29 acres as excess land and the remaining extent has been sold by them. According to him, the plaint schedule property is part of 46.74 Acres, which is at present in his possession. 5. The suit was filed for permanent prohibitory injunction. The pleadings are that the plaintiffs claimed possession and enjoyment of the suit property, that the defendants have no manner of right or possession over any portion of the suit property. 6. The evidence consists of Exts.A1 to A4, depositions of Pws.1 and 2 on the side of the plaintiffs and Exts.B1 to B7, depositions of Dws.1 and 2 on the side of the defendants. Exts.C1 to C4 were marked as court exhibits. The trial court dismissed the suit holding that the plaintiffs failed to -5- S.A.823/96 prove possession of the property. The Lower Appellate Court reversed the findings and held that the plaintiffs are entitled to get a decree as prayed for in the plaint. 7. In Ext.C2 commission report the commissioner identified the plaint schedule property as plot A, B, C, and D. The Lower Appellate Court also noted that the identification contained in Ext.C2 is not disputed by either side. Both sides adduced evidence in support of their case that they are in possession of the property. On that basis, the plaintiffs sought the relief of injunction. There is no dispute that the suit property originally belonged to Cheruvathur Veerabhadra Devaswom. The plaintiffs relates back their claim of possession under an oral lease about 45 years back through their grandfather Kakkoottil Kannan. Plaintiffs claimed that their grandfather was in possession and enjoyment of the property as a lessee paying 4 annas per acre as Purapad. Subsequently, in SM proceedings No.1155/77 the Land Tribunal, Kannur issued purchase certificate in the name of Kakkoottil Kannan, plaintiffs' -6- S.A.823/96 grandfather. Ext.A2 is the purchase certificate. Ext.A4 is the registered gift deed executed by Kannan in favour of the plaintiffs. The commissioner identified the property in Exts.C1, C3, C2 and C4 reports and plans. Exts.A1 to A1(f) are revenue receipts evidencing payment of land tax by Kannan from 1950-60 onwards. Thus, the plaintiffs claimed possession of the property on the basis of documents referred above. 8. Ext.B1 dated 30/5/1942 is the registered copy of kuzhikanam deed executed by the Executive officer, Cheruvathur Veerabhadra Devaswom in favour of Abraham and others. The total extent in R.S.225/1 is shown therein as 627.80 Acres. The defendants produced Exts.B2 assignment deed dated 15/4/1961. According to DW-1, the suit property is a portion of 46.74 acres. The suit property is A,B,C,D,E shown in red ink in Ext.C2 plan. In Ext.B1 it is stated that 10.85 acres are deducted, since so much land is in the possession of the tenants. The Lower Appellate Court examined all the facts, evidence and circumstances in the case. The documents produced by both sides -7- S.A.823/96 and the commissioner's reports and plans are examined by the Lower Appellate Court. On evidence the Lower Appellate Court held that Vayalil Kannan and Kakkoottil Kannan are one and the same person. The findings of the trial court that Vayalil Kannan and Kakkoottil Kannan are two different persons were disbelieved by the Lower Appellate Court, after referring to the documents and on proper appreciation of the facts and evidence. The oral evidence of Pws.1 and 2 was also examined by the Lower Appellate Court. PW-2 has stated that he knows the plaintiffs since 20 years and that since the last 20 years he has seen the plaintiffs' are enjoying the suit property. The Lower Appellate Court held that the trial court went wrong in disbelieving the evidence of PW-2 for no sound reasons. It has come out in evidence that the plaintiffs and their grandfather were residing together for so many years. The Lower Appellate Court also noted the production of revenue receipts by the plaintiffs evidencing payment inclusive for the year 1986-87. The trial court held that the description and identity of the -8- S.A.823/96 property given in the amended plaint are correct. The trial court failed to rely on the evidence of Pws.1 and 2 and Exts.A1 to A4 produced by the plaintiffs to substantiate their case. The oral evidence tendered by PW1 regarding the oral lease of jenmi Devaswom about 48 years' back was disbelieved for no valid reasons. The Lower Appellate Court examined the reasonings of the trial court and held that the reasons stated for disbelieving the plaintiffs' version regarding oral lease are incorrect. 9. I have also examined the contentions of the respective parties. The evidence regarding the oral entrustment of property about 48 years' back was the subject matter of major discussion by the trial court. According to the plaintiffs, they got the property from their grandfather. Subsequently, the property was assigned in the name of their grandfather by SM proceedings. Years later their grandfather assigned the property in their names. They have also produced revenue receipts showing payment of tax. All these facts are not taken in the right spirit and the suit was dismissed by the trial court finding that -9- S.A.823/96 there is no proper proof of possession on the side of the plaintiffs. The trial court also held that purchase certificate issued in the name of the plaintiffs' grandfather is not genuine. The Lower Appellate Court examined the reasons stated by the trial court for entering into such a finding. I am of the view that there is no justification for the trial court to hold that SM proceedings are invalid and therefore the purchase certificate issued in the name of the plaintiffs is invalid. The reasons stated by the trial court were examined by the Lower Appellate Court and for cogent reasons it reversed the findings of the trial court. Either side have not disputed the identification of the property as plot A,B,C and D in Ext.C2 plan. 10. The learned counsel for the respondents submitted that both sides claimed possession and enjoyment of the property under lease from same landlord, Cheruvathur Veerabhadra Devaswom. SM proceedings are initiated by the Land Tribunal on the basis of the materials on record and the purchase certificate was issued finding that the plaintiffs' -10- S.A.823/96 grandfather late Kannan was in possession and enjoyment of the property as a tenant under the Cheruvathur Veerabhadra Devaswom. The Lower Appellate Court reversed the findings entered by the trial court, which, according to me, is based on the proper conclusions arrived at based on the evidence and materials on record. No grounds are made out by the appellants to set aside the decree and judgment passed by the Lower Appellate Court. I find that the appellants have not made out any grounds to upset the findings of the trial court. Moreover, I have stated earlier that the findings are based on the facts and evidence and this Court cannot interfere in this appeal in exercise of the power conferred on this Court under Section 100 C.P.C. No question of law much any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -11- S.A.823/96 HARUN-UL-RASHID,J. -------------------------- S.A.NO.823 OF 1996 -------------------------- JUDGMENT 2nd June, 2010