IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RSA.No. 416 of 2011() --------------------- AS.93/1999 of SUB COURT,KOTTARAKKARA OS.161/1992 of MUNSIFF COURT, KOTTARAKKARA .................... : APPELLANT IN RSA/ADDL.APPELLANT NO.2 IN AS-LR OF -------------------------------------------------------------------- BHANUMATHY AMMA, AYANIVELIL VEEDU, EDAKKADAM MURI, EDAKKADAM P.O., KAREEPRA VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENTS IN RSA/RESPONDENTS IN AS/DEFENDANTS IN ----------------------------------------------------------------- 1. A.RAMACHANDRAN, S/O. ACHUTHAN, RESIDING AT MOODAMKUZHIYIL VEEDU, EDAKKADAM P.O., KAREEPRA VILLAGE, KOTTARAKKARA TALUK. 2. SANTHAMMA, D/O. KALLYANI, RESIDING AT -DO- -DO- 3. CHANDRIKA, D/O. -DO- RESIDING AT -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.416 OF 2011 ............................................ DATED THIS THE 7th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.No.161 of 1992 on the file of Munsiff Court, Kottarakkara is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for recovery of possession and permanent prohibitory injunction. Plaint schedule property is 1.12 acres in Survey no.814/3 of Kareepra Village. Appellant is setting up title alleging that the property originally belonged to Sankaran Govindan and Sankaran Raman and under Ext.A1 partition deed, the property was settled in the name of Narayanan and later Narayanan and Govindan jointly executed a gift deed in favour of Nani Amma, wife of Narayanan and her children. It is contended that Easwari Amma is the mother of appellant, that her brother was Karunakaran Pillai and they were in joint possession of the plaint schedule property, and while so Karunakaran Pillai died as a bachelor, and on the death of Nani Amma, the property devolved exclusively on the appellant and she has been in possession of the property, that the property has RSA 416/2011 2 well defined boundaries. In 1973, one Kalyani filed a petition before the Land Tribunal claiming jenmom right for 81 cents in Survey no.814/3 being a portion of the plaint schedule property and in that SMP, Karunakaran Pillai, the brother of Easwari Amma was the 5th counter petitioner and respondents 1 to 3 are the children of Kalyani and the Land Tribunal dismissed the claim petition and A.A.662 of 1975 was filed before the Appellate Authority. It was dismissed for default and that order was challenged before this court in C.R.P.No.3086 of 1978. This court remanded the appeal to the Appellate Authority and it was again dismissed and the order has become final and therefore respondents cannot claim any right in the property. It is contended that on 22.2.1992, respondents demolished the northern boundary and attempted to commit trespass. Subsequently, the plaint was amended alleging that respondents trespassed into the property and therefore appellant is entitled to recover possession of the property. 2. Respondents resisted the suit contending that the persons named in the plaint are not the relatives of the appellant and they have no right or title to the property and appellant has RSA 416/2011 3 no title to the plaint schedule property. They also contended that plaint schedule property originally belonged to Ayanivelil Govindan, who executed Ext.B1 Ottikuzhikkanam deed in favour of Ayyan Pappu, the maternal grand father of the respondents and Ayyan Pappu along with his wife and children including Kalyani, the mother of respondents were in joint possession and enjoyment of the property and Ayyan Pappu died 45 years back and thereafter Kalyani constructed a house and is residing in that property. Kunjupennu, the mother of Kalyani died and thereafter Kalyani and her brothers effected a partition. 1.12 acres of land was divided and later Kalyani purchased share of her sister Ummini. The Ottikuzhikkanam right was released in favour of Kalyani. Thus Kalyani is having title and possession to the plaint schedule property. When the previous landlord defaulted to pay land tax, 25 cents being the southern portion of the property was put up for auction by the Government for realisation of the tax and Parameswara Pillai purchased it and that was later purchased by Achuthan, father of the first respondent in 1959 and Achuthan later transferred the property in favour of the first respondent in 1968 and since then they have been in possession of the property RSA 416/2011 4 and out of the remaining 87 cents, 30 cents being the southern portion, on east west direction was transferred to Indira, the sister of the respondents and Indira is thus in possession of the 30 cents and out of the 57 cents, 40 cents including Thettivila house were transferred to the share of third respondent who is in possession of the property and the remaining 17 cents was in the joint possession of the brothers of respondents including 3rd respondent and 24 cents on the eastern side of the plaint schedule property was assigned in the name of the mother of respondents, who transferred it in favour of the first respondent and at the time of auction sale of 25 cents, it was learnt that the property was having an extent of 1.12 cents in Survey no.814/3 and subsequently the survey number was corrected by the Government and the land tax was paid. It was alleged that appellant is making misuse of the mistake in the survey number in the Ottikuzhikkanam deed and appellant is not entitled to the decree sought for. Appellant filed a replication contending that Ext.B1 mortgage deed is not in respect of the plaint schedule property, but is in respect of survey no.804/1A and based on the mortgage right, respondents are not entitled to claim any right. RSA 416/2011 5 3. Learned Munsiff, on the evidence of PW1, DW1, Exts.A1 to A11, B1 to B19 and C1 to C5 dismissed the suit holding that appellant did not establish the title. Appellant challenged the judgment before Sub Court, Kottarakara in A.S.93 of 1999. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned senior counsel appearing for appellant was heard. The argument of learned senior counsel is that courts below did not properly appreciate the facts and evidence. It was pointed out that Ext.A8 establishes that the patta originally stood in the name of Sankaran Raman and Ext.B1 mortgage is not in respect of the property in Survey no.814/3 but 804/1A and Kalyani, from whom respondents are tracing right and title, was not a tenant of the plaint schedule property and proceedings were initiated before the Land Tribunal claiming tenancy over the plaint schedule property and the Land Tribunal under Ext.A2 order found that Ext.B1 Ottikuzhikkanam is not in respect of the plaint schedule property but in respect of the property in Survey No.804/1A and though Ext.A2 order was challenged and Ext.A3 RSA 416/2011 6 order dismissing the appeal was set aside by this court under Ext.A4 order in revision, appeal was remanded and appeal was dismissed again and the order has become final and therefore the finding of Land Tribunal that Ext.B1 Ottikuzhikkanam deed is not in respect of the plaint schedule property has become final and courts below should have found that property claimed under Ext.B1 is not the plaint schedule property and therefore respondents have no right in the plaint schedule property. Learned senior counsel then argued that though the gift deed in the name of Nani Amma referred to in the plaint was not produced, appellant, being the legal heir of Sankaran Raman and Sankaran Govindan, has title to the plaint schedule property and based on that title, a decree should have been granted. Learned senior counsel further argued that when the suit is for recovery of possession based on title, there is no necessity to seek a decree for declaration as found by the courts below and the findings of the courts below is erroneous and in such circumstances, appellant is entitled to the decree sought for. 5. True, in a suit for recovery of possession based on title, it is not necessary that the plaintiff must seek a declaration of RSA 416/2011 7 title. A suit for recovery of possession on the strength of title itself is maintainable, provided plaintiff could establish her title. The suit is for recovery of possession based on title. The title set up is based on the gift deed allegedly executed by Narayanan and Govindan, in favour of Nani Amma, wife of Narayanan. What is contended in the plaint is that under Ext.A1, the property which originally belonged to Sankaran Raman and Sankaran Govindan was settled in favour of Narayanan and subsequently Narayanan along with Govindan gifted the property in favour of Nani Amma and on the death of Nani Amma, it devolved on her children. Easwari Amma and Karunakaran Pillai are the children. Karunakaran Pillai died as a bachelor and his rights also devolved on Easwari Amma. It is her case that on the death of Easwari Amma, plaint schedule property devolved on the plaintiff and thus she is the absolute owner of the property. Thus the title relied on by the appellant is the gift deed executed by Narayanan and Govindan in favour of Nani Amma. The title set up is not as the legal heir of Sankaran Raman or Narayanan. In the written statement itself, respondents have denied the right of the predecessors claimed in the plaint and also contended that they RSA 416/2011 8 are not relatives of the appellant. It is therefore necessary for the appellant not only to establish the title of her predecessors but also her right as their relatives. 6. The courts below on appreciation of Ext.A1 found that the plaint schedule property is not included therein. The argument of the learned counsel is that from the very fact that respondents approached the Land Tribunal for purchase of jenmom right, impleading the members of Ayanivelil as the respondents, establish the title and Ext.A8 shows that the title holder is Sankaran Raman and as appellant is a member of Ayanivelil family, she has title to the property even if she did not establish the exclusive right claimed under the gift deed. 7. Appellant did not produce the alleged gift deed either before the trial court or the first appellate court. There is no explanation for the non production of the gift deed. Therefore, based on the gift deed, appellant cannot claim title to the plaint schedule property even if she is the daughter of Easwari Amma and Easwari amma is the daughter of Nani Amma and Nani Amma is the wife of Narayanan. Ext.A1 shows that by execution of Ext.A1 the absolute right in the properties shown therein was RSA 416/2011 9 not transferred to Narayanan. The very fact that Govindan allegedly gifted the property along with Narayanan establishes that Govindan had a subsisting right. Appellant has not claimed any right under Govindan except the alleged gift. When the gift deed is not produced and the gift is not proved, the title based on the gift can only be rejected. 8. The question then is whether appellant could claim title to the property as predecessor in interest of Sankaran Raman, the title holder seen in Ext.A8. As respondents have denied the relationship of appellant with the persons shown in the plaint. Hence it is incumbent upon the appellant to establish the relationship. When PW1 was asked about the title holder shown in Ext.A8 and her relationship, she was not in a position to throw any light on that matter. She had no case, was she was asked about the said Sankaran Raman, that he is the uncle of the husband of Nani Amma and her mother is the daughter of Nani Amma. When the right set up by the appellant from Sankaran Raman and Sankaran Govindan was not proved, even based on the said title, appellant cannot claim a decree for recovery of possession, especially when no decree was sought for based on RSA 416/2011 10 that title. 9. The main thrust of the argument of the learned senior counsel is that as the case of respondents that the plaint schedule property is in respect of Ext.B1 Ottikuzhikanam deed and it was found against by the Land Tribunal, respondents cannot continue in possession of the property and hence a decree for recovery of possession is to be granted. Even if it is taken that respondents have no title to the plaint schedule property, a decree for recovery of possession in favour of the appellant can be granted only on establishing that she has better title to the property. When as found by the courts below, appellant did not establish the title, she is not entitled to the decree sought for. Hence on the pleadings and evidence on record, I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk