IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 RSA.No. 1342 of 2011() ---------------------- AS.38/2008 of I ADDL. DISTRICT COURT, PALAKKAD OS.774/2003 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELANT/PLAINTIFF -------------------- P.RAJAGOPALAN S/O. BALAMANI AMMA, PALLATHU HOUSE, VALLIKODE AMSOM, PALAKKAD TALUK. BY ADV. SRI.K.RAVEENDRAN RESPONDENT(S)/RESPONDENTS/LRS OF DEFENDANT: --------------- 1. SURESH, S/O KITTU, VADAKKUMPURAM VENNAKKARA 346/14, PUDUPPARIYARAM, PALAKKAD -678 001. 2. ANITHA, D/O. KITTU, VADAKKUMPURAM VENNAKKARA PUDUPPARIYARAM, PALAKKAD – 678 001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1342 of 2011 ............................................ DATED THIS THE 1st DAY OF DECEMBER, 2011 JUDGMENT Plaintiff in O.S.774 of 2003 on the file of Additional Munsiff Court, Palakkad is the appellant. Respondents are the defendants. Suit was filed for recovery of possession on the strength of title. Plaint schedule property is 21.25 cents in R.S.297/12 of Vallikode Village of Palakkad Taluk. Appellant claimed title to the plaint schedule property contending in the plaint that the property originally belonged to Thiruvilwamala Devaswom and Pallathukalam tharavadu obtained the property on lease-hold right and while the property was outstanding in the possession of Theyunni Nair, the tenant, tenancy right was assigned to Prabakaran Nair. Prabhakaran Nair, in turn assigned the property in favour of Narayani Amma, the then Karanavathi of tharavadu under registered document dated 25.5.1967 and later, Balamani Amma, the subsequent Karanavathi, assigned the property in favour of Viswanathan on 24.10.1996 and Viswanathan assigned the property thereafter in favour of the RSA 1342/2011 2 appellant under registered sale deed 3634/1996 and appellant has thus title to the property and respondents have no right or title to the property and hence appellant is entitled to a decree for recovery of possession of the property. It is admitted case that appellant had earlier instituted O.S.746 of 1996 seeking a decree for permanent prohibitory injunction and the suit was dismissed and though A.S.150 of 2000 was filed challenging the decree, that was also dismissed and the suit for recovery of possession based on title was filed thereafter. 2. Respondents resisted the suit contending that including the plaint schedule property, 65 cents of land was obtained by the first respondent on lease from the tharavadu of the appellant and jenmom right was subsequently purchased from the Land Tribunal and by issuance of the purchase certificate, he became the absolute owner and appellant is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence dismissed the suit holding that appellant did not establish his title to the plaint schedule property. Appellant challenged the decree before District Court, Palakkad in A.S.38 of 2008. Learned District RSA 1342/2011 3 Judge, on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that right of respondents to the property which lies to the west of the plaint schedule property is not disputed and the property was not properly identified by the Commissioner and in such circumstances, courts below were not justified in dismissing the suit based on an incorrect identification. 5. On going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. Being a suit for recovery of possession on the strength of title, it is up to the appellant to plead and prove his title to the plaint schedule property. What was contended in the plaint was that plaint schedule property was outstanding in the possession of a tenant Theyunni Nair, who in turn assigned the tenancy right in favour of Prabhakaran Nair and the said Prabhakaran Nair surrendered the right to the tharavadu and while so, the next karanavathi Balamani Amma assigned the property in favour of RSA 1342/2011 4 Viswanathan and from Viswanathan, appellant purchased the property by a registered sale deed and hence he has title. Therefore, the title claimed in the plaint is the tenancy right which originally vested with Theyunni Nair and surrendered in favour of the tharavadu by Prabhakaran Nair, the assignee and later transferred by Balamani Amma, the subsequent Karanavathi in favour of Viswanathan. Ext.A2 is the sale deed executed by Balamani Amma in favour of Viswanathan. It was under Ext.A3, appellant claimed title to the plaint schedule property. Ext.A3 is the assignment deed executed by Viswanathan in favour of the appellant. Therefore, the title which could be claimed by the appellant is the title which was available with Viswanathan. That title is the title which was available with Balamani Amma. Ext.A2 shows that the right which was assigned in favour of Viswanathan is not the tenancy right which was obtained by Prabhakaran Nair from Theyunni Nair and later allegedly transferred in favour of Narayani, the Karanavathi. Ext.A2 shows that the right transferred thereunder is the alleged tenancy right obtained by Balamani Amma. Ext.A1 shows that the tenancy right is claimed under an oral lease, without mentioning even the year of the RSA 1342/2011 5 lease. Therefore, based on Ext.A2, appellant cannot claim title, which was pleaded in the plaint and supported by Ext.A1. Ext.A1 shows that it is a registered assignment deed executed on 25.5.1967 by Prabhakaran Nair in favour of Narayani Amma stating that Prabhakaran Nair obtained the right as per registered assignment deed 40/1967 from Theyunni Nair, who in turn was in possession of the property as a tenant. Even though the right claimed in the plaint is the said alleged tenancy right, which was originally available with Theyunni Nair and claimed to have been obtained by Prabhakaran Nair and thereafter surrendered under Ext.A1, the right transferred under Ext.A2 is not the said tenancy right but an independent right claimed by Balamani Amma. Apart from the inconsistency in the pleading, as rightly found by courts below, there is no material to support the case of an oral lease set up in Ext.A2. Added to this, appellant is none other than the son of Balamani and what is claimed under Ext.A2 and A3 is that the tenancy right available with Balamani Amma which was assigned in favour of Viswanathan and later purchased by appellant, the son 18 days after the assignment. When the entire facts are appreciated, as rightly found by courts below, RSA 1342/2011 6 appellant cannot claim title under Ext.A2 and A3, when there is no evidence to prove the oral lease in favour of Balamani. If that be so, irrespective of the defect in the identity canvassed by the learned counsel, as appellant has not established title to the property, he is not entitled to the decree for recovery of possession. In such circumstances, appeal is dismissed as no substantial question of law is involved in the appeal. M.SASIDHARAN NAMBIAR, JUDGE lgk