IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 SA.No. 348 of 1999(G) --------------------- AS.261/1996 of SUB COURT, NEDUMANGAD OS.81/1993 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S)/PLAINTIFFS: ---------------------------------------- *1. KHADEEJA BEEVI RUKKIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. (DIED) * ADDL. APPELLANTS 2 TO 10 IMPLEADED. 2. A. MOHAMMED ISMAIL, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 3. A HAMEED, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 4. A. KASIM, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 5. A MOHAMMED IBRAHIM, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 6. A. YOONUS, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 7. ABDUL RAZAK, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 8. R. PATHIMA BEEVI, D/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 9. A. YOOSUFF, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. 10. A. ABDUL KARIM, S/O KHADEEJA BEEVI RUBBIYA BEEVI, PUTHUVAL PUTHEN VEEDU, PERUMALA, THEKKUMKARA MURI, NEDUMANGAD VILLAGE. * THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 10 AS PER ORDER DATED 11.1.2006 IN I.A. 54/06. BY ADV. SRI.S.SOMAN SMT.USHA RAVINDRAN RESPONDENT/DEFENDANT. ----------------------------------------- NEDUMANGAD MUNICIPALITY REP. BY ITS MUNICIPAL COMMISSIONER, MUNICIPAL OFFICE, NEDUMANGAD. ADV. SRI.P.RAMAKRISHNAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.7.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.No. Of 348/1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July , 2011 J U D G M E N T The plaintiff who lost before both the courts below is the appellant. During the pendency the appellant was died and her legal heirs were impleaded. 2. The plaintiff is in possession of 90 cents of property comprised in S.Nos.2040/113 of Nedumangad Village. She resides in a hut situated in that property. Alleging that the defendant municipality was going to cut down jack trees standing in the property, the suit was laid. 3. The defendant resisted the suit. 4. It was pointed out that 2.02 acres including the plaint schedule item belongs to the Municipality and the plaintiff has no manner of right over the same. According to them in 1978 when Panchayat was converted into Municipality all the Kudikidappukars were evicted from the property, but the plaintiff managed to continue in a hut situated in the property. It is contended that the plaintiff has no manner of right over the property having an extent of :2: S.A.No. Of 348/1999 90 cents of land. There are trees in that property and the right to collect usufructs from those trees are being auctioned from year to year on Kuthakappattom basis and the plaintiff is the purchaser of the Kuthakappattom for the year1993-94. They therefore prayed for the dismissal of the suit. 5. On the above pleadings issues were raised. 6. Evidence consists of testimony of PWs1 to 3 and documents marked as Exts.A1 to A3 marked from the side of the plaintiff. The defendants had DW1 examined. C1 and C1(a) are the commissioners report and plan. 7. Trial Court on evaluation of the evidences in the case found that the plaintiff miserably failed to establish her right to the suit property and dismissed of the suit. 8. The matter was carried in appeal as AS 261/1996 before the Sub Court Nedumangad. The appellate court after reconsideration of the material before it, found no reason to differ from the view taken by the trial court and consequently the appeal was dismissed. :3: S.A.No. Of 348/1999 9. Notice is seen issued on the following questions of law:- A. Having found that the appellant is in admitted possession of the residential building and resides there which forms part of enclosed property should not the court found that the appellant is in possession of the land appertenant to the residential building and which is within the enclosure? B. Is not the appellant is entitled to get perpetual injunction against the respondent on the strength of Kuthakappattom Lease of Land obtained 45 years ago from Government under the Kuthakappattom Rules and protect her possession? Is not possession of a part of the enclosed property raises a presumption of the possession of the whole of the property? C. Is not the plaintiff and her family members who are having no land of their own entitled to get assignment of the entire plaint schedule land for the members of the family of appellant for having got possession and enjoyment for all these years and for having made valuable improvements therein in the land which they got by Kuthakappattom Lease from Government? D. Is not the respondent lacking jurisdiction to interefere with the possession of the plaint schedule property for having no right over and above the government? E. Is not a person in possession, albeit without title is entitled to remain in possession against the lawful owner and lawful owner cannot take law into their hands and :4: S.A.No. Of 348/1999 attempt to dispossess the plaintiff forcibly without recourse to proceedings in the manner prescribed by law? F. Is not the respondent incompetent and barred by law to proceed against the plaint schedule property owned by the appellant under Kuthakappattom Lease of Government land and on the basis of the admission of DW1 that the respondent failed to establish the identity of property and the defence taken without any bonafides on mistaken identity of land and for having no documentary evidence to connect the plaint schedule property? 10. The learned counsel for the appellant pointed out that both the courts below have erred in rejecting the claims put forward by the plaintiff and in dismissing the suit. It is contended when going by the Commissioners report it could be seen that 90 cents of property over which plaintiff lays claim lies separately from the 2.02 acres claimed by the Municipality. It is also contended that there was sufficient evidence to show that the tax was paid by the plaintiff and she was enjoying the property as if it belonged to her. At any rate, according to the learned counsel, the plaintiff is entitled to protect the possession of the suit :5: S.A.No. Of 348/1999 property until the municipality evicts the plaintiff in accordance with law. 11. The learned counsel appearing for the respondent on the other hand contended that even going by case put forward by the plaintiff that she had only kuthaka pattam' right. Evidence of PW1 is sufficient to show that she had bid in the auction 1993-94 taken property. If as a matter of fact the plaintiff had absolute rights over the suit property, there would not have been an auction in 1993-94. The learned counsel pointed out that municipality had made it clear that they will be taking steps in accordance with law to evict the petitioner from the building in the property. Accordingly learned counsel pointed out that both the courts below have considered the matter on the basis of the evidence adduced and they have come to the right conclusion. No question of law arises for consideration in the second appeal. 12. Even if the plaintiff claimed to be in absolute possession and enjoyment of 90 cents of property there is :6: S.A.No. Of 348/1999 want of evidence in that regard. It must be noticed that the claim put forward by plaintiff she has “Kuthakappattom” rights which entitles a person concerned only to take usufructs from the property and does not confer absolute title or possession over the property. It is here that the evidence of PW1 is important. PW1 has admitted property belongs to the municipality and also contended that in the year 1993-94 the she was a bidder. 13. If as a matter of fact the plaintiffs was in absolute possession of the property for the last 45 years, auction could not have occurred, since the defendant had filed objection to the auction. This admission of the plaintiff is sufficient to show that PW1 was only a bidder for a particular year. 14. Commissioners report is of no help to the plaintiff. There it is categorically stated that the plaintiff only claimed 'Kuthakappattom' right and by that position it is difficult to hold that plaintiff has absolute right and possession over the suit property. So she was the :7: S.A.No. Of 348/1999 successful bidder for the year 1993-1994 and she came into the property in that capacity. Apart from the above facts there is want of evidence to show that plaintiff has ownership over the property. 15. There is however evidence to show that plaintiff resides in the portion of plaint schedule property. Municipality has made clear that they will be taking steps in accordance with law, to evict the plaintiff from the property. 16. Since the plaintiff has not been able to establish any exclusive right or enjoyment in respect of plaint schedule property, the courts below were justified in declining reliefs to the plaintiff. Appellants were not able to show that findings of the court below are wrong. It is neither perverse nor unwarranted by evidence on record. No substantial questions of law arise for consideration in this second appeal. The municipality will be at liberty to take such steps as are available to them in law and have petitioner evicted from the building. This appeal stands :8: S.A.No. Of 348/1999 dismissed. There will be no order as to costs. Sd/- P.BHAVADASAN JUDGE kkj // TRUE COPY // PA TO JUDGE