IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 RSA.No. 186 of 2009() --------------------- AS.126/2003 of SUB COURT,ALAPPUZHA OS.325/2001 of PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------- CHELLAPPAN ACHARI, AGED 78 YEARS, S/O. PADMANABHAN ACHARI, ELAYIL VEEDU, MANNANCHERY MURI, MANNANCHERRY VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 AND 2: --------------- 1. RAGHAVAN ACHARI, ELLAYIL HOUSE, MANNANCHERRY MURI, MANNANCHERRY VILLAGE, ALAPPUZHA. 2. R. VIJAYA KUMAR, ELLAYIL HOUSE, MANNANCHERRY MURI, MANNANCHERRY VILLAGE, ALAPPUZHA DISTRICT. ADV. SRI.R.AZAD BABU FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.186 OF 2009 ---------------------------- DATED THIS THE 3RD DAY OF JUNE, 2009 JUDGMENT Defendant is the appellant. This appeal is directed against the judgment and decree dated 20/9/2008 in A.S.No.126/03 on the file of the Sub Court, Alappuzha, which arise from the judgment and decree in O.S.No.325/2001 on the file of the Principal Munsiff's, Court, Alappuzha. The suit was filed for declaration of title, recovery of possession and perpetual injunction. The suit was decreed by the trial court declaring the right, title and possession of the plaintiffs over the plaint schedule property and set aside the order dated 12/11/1990 in ALC.Nos.1044/90 and 1045/90 and declared as not binding on the plaintiffs and perpetual injunction as prayed for was passed with costs. The decree and judgment passed in O.S.No.325/2001 was confirmed in appeal by the Appellate Authority. -2- R.S.A.No.186/09 2. The plaintiffs are father and son and the defendant is the direct brother of the lst plaintiff. The lst plaintiff, defendant and other brother and sisters, who are the children of deceased Padmanabhan Achari, executed Ext.A1 partition deed in the year 1970 allotting separate share to the lst plaintiff, defendant and other members of the family. The plaint schedule property was allotted in favour of the lst plaintiff as per the said partition deed of the year 1970. The lst plaintiff was employed in Tamil Nadu and therefore, according to him, he entrusted the property to the defendant, who is his brother. It is the plaintiffs' case that the defendant forcibly resisted the lst plaintiff from taking usufructs from the property. On enquiry the plaintiffs came to understand that the property is being mutated in the name of the defendant as per the order in ALC.No.1044/90 and 1045/90. In the above said facts and circumstances of the case the suit was filed for the aforesaid reliefs. -3- R.S.A.No.186/09 3. In the written statement filed by the defendant it is inter alia contended that neither the lst plaintiff nor his predecessor has got any jenm right over the property, that he is the title holder of the plaint schedule property, that the re-survey proceedings are legally done and that the property is mutated in his name and therefore, the defendant prayed for dismissal of the suit. 4. Before the trial court PWs.1 to 5 were examined and marked Exts.A1, A2, X1 to X4, X5, X5(a) to X5(e), X6 and X6 (a) to X6(d) series on the side of the plaintiffs and on the side of the defendant DWs.1 and 2 were examined and marked Exts.B1, B2 and B2(a) to B2(e) series. 5. The trial court elaborately discussed the oral and documentary evidence adduced by the parties. Admittedly, Ext.A1 is a partition deed executed by the lst plaintiff, defendant and other members of their family jointly. The trial court noted the testimony of DW-1, who is the defendant in the suit in cross- -4- R.S.A.No.186/09 examination that all the properties stated in Ext.A1 have been in the possession and enjoyment of his father during his life time and after his death, himself, the first plaintiff, brother and sisters together have decided to effect partition of the entire items of properties left behind by the deceased father. As a result, Ext.A1 partition deed was executed by the members of the family. 6. The contention raised by the defendant is that the lst plaintiff would not get any right over the plaint schedule property by virtue of Ext.A1 partition deed, since neither the father nor the lst plaintiff has any prior title to the plaint schedule property. The recitals in Ext.A1 partition deed would negative the contention of the defendant. In Ext.A1 partition deed more or less equal share was allotted to the lst plaintiff, defendant and other brothers and sisters. The defendant is questioning the title in respect of the plaint schedule property, which is a portion of the property, allotted to the plaintiffs. It has come out in evidence -5- R.S.A.No.186/09 that Mannancherry Devaswom is the land owner of the plaint schedule property from which the property has been obtained by his father, and the same was in his possession and enjoyment. It is stated that his father had obtained the property from the Devaswom by executing a deed. Ext.A1 partition deed also shows that the entire property have been obtained by the deceased father by virtue of registered Kanapattom (sale deed) and Vakkal Pattom. Plaint A schedule is an item allotted to the lst plaintiff, which consists of two plots; one plot consists of 40 cents in Sy.No.49/9-A and the disputed plaint schedule property comprised in Sy.No.49/10. The recitals contained in Ext.A1 partition deed would clearly indicate that the deceased Padmanabhan Achari was having right, title and interest over the properties allotted to the lst plaintiffl, defendant and others. It is worthwhile to notice that the C schedule property was allotted to the defendant in the very same partition. The property is -6- R.S.A.No.186/09 comprised in Sy.No.49/9A which is a portion of the property allotted to the lst plaintiff as well. The court below observed that the defendant has accepted the above two plots allotted to his share as per C schedule and now cannot turn round and say that his father has no right, title or patta to the property included in 'A' schedule. He has no case that his father has no title in respect of the property allotted to him in the very same survey number. The trial court on evidence further held that the deceased Padmanabhan Achari was having valid patta with respect to the plaint schedule property as is evident from A schedule in Ext.A1 partition deed. The facts finding court also examined the other facts and circumstances and held that the lie of the property also justified the claim of the plaintiffs. The lie of the property would show that the property of the defendant lies just adjacent to the plaint schedule property and the evidence would establish that the property has been lying as shown in the description in A -7- R.S.A.No.186/09 schedule of Ext.A1 partition deed. The court below also concluded that there are boundary stones lying at the western boundary of the plaint schedule property which would clearly demarcate the property of the defendant that lies to the west. The court below believed the version of the lst plaintiff that he has entrusted the property to this brother for managing the same and collecting usufructs and he used to receive the usufructs after making collection charges and other expenses when he visits the plot. It may be pointed out that the plaintiff is a permanent resident in Tamil Nadu and he used to visit the property only twice or thrice in a year. That is also another circumstance which would go to show that the defendant was in charge of the property as a caretaker. 7. The contention of the defendant regarding the title to the property by virtue of Ext.B1 patta was also considered. Ext.B1 patta has been issued in favour of the defendant in -8- R.S.A.No.186/09 S.M.No.344/76. According to the plaintiffs, patta has been obtained by the defendant by fraudulent means. The trial court examined the validity of patta in detail and discussed the contentions raised in paragraph 22 of the judgment of the trial court. The trial court observed that the facts and circumstances discussed in the suit would cast serious doubt regarding the genuineness of the patta and S.M. proceedings alleged to have been initiated. The trial court also rightly concluded that the defendant has been in possession of the plaint schedule property only in the nature of permissive possession and that he was authorised and entrusted by the lst plaintiff, who is none other than his brother, to manage and collect the usufructs. The contention of the defendant regarding patta was examined in detail, which is stated in paragraphs 22 and 23 of the judgment. The trial court concluded that the entire facts and circumstances of the case including the circumstances leading to the registration -9- R.S.A.No.186/09 of the S.M. case, non-availability of Ext.X5 file at the initial stage, the freshness of the paper in which the proceedings and the original of Ext.B1 patta have been written, the absence of proper stamp of the Land Tribunal of the original of patta etc. are suspicious circumstances which would probabilise the contention of the plaintiff that Ext.B1 patta is a concocted document at the instance of the defendant. The trial court also held that assuming that the patta is a valid one, it will not confer any title to the property for the reason that the same was obtained behind the back of the title holder. Admittedly, the lst plaintiff was not a party in the S.M. proceedings and no notice was issued to him by the Land Tribunal, therefore the proceedings will not bind the lst plaintiff or affect the right, title and interest of the plaintiffs in the property. So the declaration of title and possession of the plaint schedule property by virtue of Ext.A1 partition deed by the trial court, which was confirmed by the Appellate Court, is finding -10- R.S.A.No.186/09 recorded after appreciating the evidence on record. I find that the conclusions arrived at by the courts below are right and correct in the given circumstances. 8. It is the plaintiffs case that during re-survey the Resurvey Authorities have wrongly recorded that the plaint schedule property has been in possession of the defendant and pronounced the order in ALC.No.1044/90 and 1045/90 on 12/11/1990 in favour of the defendant. The fact that the possession of the defendant is only a permissive possession and the trial court already entered a finding that it will not confer any right or title and therefore the finding of the Resurvey Authorities that the plaint schedule property is in the absolute possession of the defendant is incorrect. Admittedly, the Resurvey Authorities have not issued any notice to the plaintiffs during the time of resurvey or before pronouncing the order dated 12/11/1990. As the lst plaintiff is having absolute title and the defendant being -11- R.S.A.No.186/09 his own brother, the mutation effected based on the endorsement of the Resurvey Authorities that the defendant is in possession is of no consequences. It is true that the plaintiffs have not filed any appeal before the Appellate Authority or filed any suit to set aside the finding of the Resurvey Authorities. Since the lst plaintiff is the title holder and is in possession and enjoyment of the property, the endorsement made by the Resurvey Authorities is illegal and not binding on him. Therefore, the decree declaring the proceedings in ALC.No.1044/90 and 1045/90 are void and is not binding on the plaintiffs, is passed validly by the trial court. 9. The entire evidence and the contentions raised by the appellant/defendant were examined in detail by the Lower Appellate Court also. The Lower Appellate Court, after re- appreciating the evidence on record and confirming the findings of the trial court, held that the grounds advanced in the appeal -12- R.S.A.No.186/09 are found to be not sufficient, adequate and enough, in order to arrive at a conclusion that the court below went wrong in appreciating the evidence. 10. This Court discussed the evidence on record and the findings arrived at by the courts below. The decree and judgment passed by the trial court which confirmed in appeal are in order. The findings recorded are purely based on the evidence on record. No question of law much less any substantial questions of law arise in this appeal. The appeal therefore fails and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv.