IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 SA.No. 31 of 1994(D) -------------------- ( AS.149/1989 of ADDL. DISTRICT COURT, THODUPUZHA OS.282/1982 of MUNSIFF'S COURT,THODUPUZHA ) APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------------------- JOSEPH, S/O. ULAHANNAN, NIRAPPUKANDATHIL, UDUMBANNOOR KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.V.G. ARUN ADV. SRI.T.R.HARIKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. SYNABA, W/O. ABUBAKKAR, KURAPPILLIL HOUSE, VENGALLUR,. THODUPUZHA. 2. KADHIJAMMA, W/O. SULAIMAN, KURUAPPILLIL HOUSE, VENGALLUR, THODUPUZHA P.O. 3. NISSA, D/O. SULAIMAN OF DO. 4. NAJEEB, S/O. SULAIMAN OF DO. 5. SALINA, D/O. SULAIMAN OF DO. 6. SAKKINA, D/O. SULAIMAN OF DO. R2 TO R6 BY ADV. SRI.K.JAJU BABU AND BY ADV. SMT.C.S.SHEEJA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ................................................................................... S.A. No. 31 OF 1994 ................................................................................... Dated this the 7th January, 2008 J U D G M E N T The plaintiff challenges the concurrent decisions of the courts below in this Second Appeal. The appellant filed the suit O.S.No. 282 of 1982 on the file of the Munsiff's court, Thodupuzha for declaration of title and recovery of possession in respect of an extent of 6.62 cents of land. There are two items of properties. Item No.1 is having an extent of 4 cents while item No.2 is having an extent of 2.62 cents . The property lies on the southern side of the property of the first defendant. There is a pathway having a width of 6 feet passing through the plaint schedule property and over which the first defendant has a right of way. The extent of the property of the first defendant is 4 cents. It is stated that there is a boundary separating the suit property from the property of the defendants. 2. There was an earlier litigation between the parties as O.S.No.37 of 1976, which was re-numbered as O.S.No. 335 of 1979 on the file of the Munsiff's Court, Muvattupuzha . That was a suit filed by Abubakkar against the plaintiff and his brothers. Abubakkar was the husband of the present first defendant and brother of the second defendant. That suit was decreed in favour of the present defendants. 3. One of the questions which had arisen for consideration is whether the decision in O.S.No.335 of 1979 would operate as res judicata . The trial court held that the present suit would not be barred by res judicata in view of the judgment and decree in O.S.No. 335 of 1979. However, the trial court dismissed the suit holding that the S.A. No. 31 OF 1994 2 plaintiff has not succeeded in proving his title to the plaint schedule property. The appellate court confirmed the decision of the trial court. 4. The property was identified by the Commissioner, who filed Ext. C2 report and Ext. C2(a) plan . In the plan, the property is shown as several plots, of which the extent covered by plot Nos.2, 5 and 8 are puramboke lands . The plaintiff has no title over the puramboke lands . The case put forward by him that proceedings were initiated against his father under the Land Conservancy Act and he and his successor, viz., plaintiff continued in possession for long number of years, was not accepted by the courts below. No evidence was adduced by the plaintiff to show that any proceedings were initiated against his father under the Kerala Land Conservancy Act. The appellate court dealt with the balance extent of the plaint schedule properly, after excluding the puramboke lands, thus: “What remains is plot Nos. 1,6 and 7 and also plots 2,4 and 9. Plaintiff's case is that plaintiff has got possession of the property by two deeds executed by his father and cousin. But it is pertinent to note that those deeds were executed after the institution of the suit by defendant's predecessor against plaintiff and his predecessors as early in 1974. Hence descriptions in those deeds are of no use in identifying the property. Plaintiff's case is that plaint schedule property belonged to plaintiff's grand-father along with some other items and after his death the property was orally partitioned among the children and thus plaint schedule item No.1 was allotted to plaintiff's father and item No.2 was allotted to plaintiff's father's brother. Admittedly plaintiff's grandfather had children other than plaintiff's father and plaintiff's cousin's father. Nothing is mentioned about oral partition in the document. There is no evidence of oral partition too. Hence on that count itself it cannot be held that those portions were obtained by S.A. No. 31 OF 1994 3 predecessors in interest as per the alleged oral partition. It is pertinent to note that plaintiff's father and brother were not examined to prove the oral partition and allotment of the respective portions to the respective persons. “ 5. It was also held by the court below that the plaint schedule property is incapable of identification and Exts. A1 and A2 are not sufficient to identify the properties. The plaintiff /appellant sought to produce an additional document before the lower appellate court. The lower appellate court considered the document and held that the said document is not relevant for resolving the disputes involved in the case and that it is not necessary to accept the document as additional document. 6. Both the courts below have considered the pleadings and the documentary and oral evidence in the case and conclusions were drawn on the basis of those materials and evidence. No substantial question of law would arise for consideration in this Second Appeal. I concur with the reasonings and conclusions rendered by the courts below and hold that there is no merit in the Second Appeal. The Second Appeal is accordingly dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk S.A. No. 31 OF 1994 4 K.T. SANKARAN, J. ........................................................ S.A. No. 31 OF 1994 ......................................................... Dated this the 7th January, 2008 J U D G M E N T