IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 RSA.No. 197 of 2008(F) ---------------------- AS.51/1996 of SUB COURT, OTTAPPALAM OS.28/1986 of MUNSIFF-MAGISTRATE COURT,MANNARKAD .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- SEETHALAKSHMI, AGED 52 YEARS D/O.VANCHOOR KALATHIL KALLYANIKUTTY @ THANKAMANI OF KOLANGARA KODIKUNNATH, KARIMBA AMSOM, DESOM MANNARKKAD TALUK, PRESENT ADDRESS IS DR.SEETHALAKSHMI, K.K.DIVISION OF PLANT PHYSIOLOGY KERALA FOREST RESEARCH INSTITUTE, PEECHI, THRISSUR BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. THITHEERUMMA, D/O.KOMBODA AHAMMED RESIDING AT KARIMBA AMSOM, DESOM MANNARKKAD TALUK. 2. ABDULKHADAR, S/O.KOMBODA AHAMMED RESIDING AT KARIMBA AMSOM, DESOM MANNARKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.197 of 2008 -------------------------------------- Dated this the 24th day of March, 2010. JUDGMENT Against concurrent finding of the courts below that appellant failed to prove possession claimed by her over the suit property, she has come up in appeal urging by way of substantial question of law whether that finding of the courts below ignoring the documentary evidence is legally correct. According to the appellant suit property - 99 cents in survey No. 40/1 and other items belonged in jenm to Thiruvalayanadu Bhagavathi Devaswom wherefrom they derived kanam right to the tarward of the appellant in the year 1939. Thereafter there was a partition in the tarward followed by subsequent assignments and ultimately it came to the appellant and her parents. They obtained purchase certificate from the Land Tribunal. Thus appellant is the absolute owner in possession of the property. Property on the south of suit property originally belonged in jenm to Vallur Mana which now belong to the respondents. While Panchayat formed road the suit property happened to be on the south of the road. Alleging that respondents are trying to trespass into the suit property appellant filed the suit for prohibitory injunction. Respondents denied title and possession claimed by the appellant and even the description of the suit property. They claimed that Vallur Mana had jenm right in the property comprised in survey No.40/1 and 44/1. The suit property and other items were purchased by Maruthingal Narayanan from Vallur Mana. Maruthingal RSA No.197/2008 2 Narayanan assigned 6.19 acres to respondent No.1 which according to her includes the suit property. Trial court held that since there was no payment of court fee under Section 27(a) of the Court Fees Act no enquiry into title was required and what is relevant for consideration is only possession. Trial court after consideration of the evidence came to the conclusion that appellant was not able to prove her title and possession over the suit property and dismissed the suit. Aggrieved, appellant took up the matter in appeal. First appellate court concurred with finding of the trial court as to possession but, left open the issue regarding title to be adjudicated in appropriate proceeding. Appellant is not satisfied with the decree of the first appellate court also and has come up in appeal urging the substantial question of law which I have stated above. Learned counsel for appellant contends that no reference has been made to Exts.A1 to A10 while holding that appellant has no possession of the suit property. Appellant relied on Exts.A1 to A10. Of them, Ext.A7 is the settlement deed executed by Kallyanikutty in favour of appellant on 16.1.1986, ie. immediately before institution of the suit. Ext.A4 to A6 are the purchase certificates issued in favour of predecessors-in-interest of the appellant. Exts.A1 to A3 are the kanam assignment deeds allegedly in respect of the suit property in favour of the predecessors-in-interest of the appellant. Ext.A9 series are receipts for payment of revenue. Trial court observed that of Ext.A9 series only two receipts related to the period prior to the institution of suit and all other receipts came thereafter. Of the two receipts which were obtained prior to the RSA No.197/2008 3 institution of the suit only survey number of the property is mentioned and hence the trial court was of the view that even those receipts were not sufficient to hold that appellant was in possession of the suit property. Father of appellant gave oral evidence on behalf of appellant as PW1. He admitted that at the time of none of the documents relied on by the appellant the property was actually measured or surveyed and instead in Ext.A7 the descriptions in the prior documents were carried over. That version of PW1 went diametrically opposite to the plaint averment that at the time of Ext.A7 the properties were measured and boundaries were fixed. Trial court referred to Exts.A1 to A10, the documents produced by the appellant and stated that the descriptions in those documents do not tally with the descriptions given in the plaint schedule and descriptions given by the advocate commissioner in Exts.C1 and C2. Trial court observed that even after Exts.C1 and C2 no attempt was made by the appellant to amend the boundary descriptions in plaint schedule if at all the boundary description in plaint schedule were wrong. Ext.A10 is a copy of the assignment deed produced by the appellant to prove identity of the property. That according to appellant is in respect of property situated on the west of the suit property and mentioned as paramba belonging to Kulangara Nair. Going by Exts.C1 and C2, property mentioned in Ext.A10 is situated on the north-west side of the schedule property and its eastern boundary is not paramba of Kulangara Nair as stated in Ext.A10. Thus there was no proper identification of the suit property as claimed by the appellant. RSA No.197/2008 4 2. Respondent No.1 has a case that the suit property formed part of 6.19 acres acquired by her in the year 1979 from Maruthingal Narayanan. Respondents also produced documents to prove title and possession claimed by them (Exts.B1 to B3). According to the respondents, respondent No.1 assigned a portion of the property to the local Panchayat for formation of road which is proved by Ext.B4. That, one boundary of the suit property is Panchayat road is admitted by the appellant also. Though PW1 made an attempt to show that appellant also surrendered a portion of the suit property for formation of road no document worth the name has been produced . 3. So far as nature of cultivation in the properties is concerned, advocate commissioner reported that the rubber plants seen in the disputed property and the property admittedly belonging to respondent No.1 were of similar age . But according to PW1 rubber plants were planted in the suit property after the suit. That also did not tally with the report of the advocate commissioner. It is in the above circumstances that the courts below found against the claim of possession made by the appellant. That finding is based on appreciation of evidence on record. It is incorrect to contend that Exts.A1 to A10 were not taken into consideration by the courts below. Finding of the courts below is based on evidence on record and even if it is erroneous, cannot involve any substantial question of law for consideration of this Court. First RSA No.197/2008 5 appellate court has left open issue regarding title claimed by the parties to be adjudicated in appropriate proceeding. I find no reason to admit this Second Appeal. Resultantly Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks