IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 SA.No. 1018 of 1996() --------------------- AS.104/1992 of SUB COURT, PAYYANNUR OS.215/1988 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS: -------------- KAPOTH KAVU UTAMA OORALAR AND MANAGER: 1. EACHA AMBU, S/O.KALLIANI, EZHOM AMSOM DESOM, KANNUR DISTRICT. 2. EACHA BALAN, S/O.KUNHAMBU, KONNAPURAM AMSOM, EDAKKEPURAM DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. KOORAN CHEEYYAYI, W/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. 2. PUTHIYA PURAYIL BALAKRISHNAN, S/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. 3. GOPALAN, S/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. 4. SOUMINI , D/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. 5. RADHAMANI, D/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. 6. LATHA,D/O.LATE KANNAN, THALAPULIYANKUNNU, KALLIYASSERI AMSOM, DESOM, KANNUR TALUK, DISTRICT. SA NO.1018/1996 2 7. JAYASREE, MINOR REP. BY GUARDIAN MOTHER, 1ST RESPONDENT. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 TO R7 SRI.M.M.ANTO FOR R1 TO R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, ALONG WITH SA NO. 1041 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.Nos.1018 & 1041 of 1996 -------------------------------------- Dated this the 11th day of February, 2010. JUDGMENT These Second Appeals are brought from common judgment and decree of learned Sub Judge, Payyannur in A.S.Nos.104 of 1992 and 84 of 1992 respectively arising from separate judgment and decree of learned Munsiff, Taliparamba in O.S.Nos.215 of 1988 and 173 of 1991 respectively. Parties are same in both the suits. Appellants claimed to be representatives of Kappoth Kavu Devaswom to which schedule properties allegedly belonged. In O.S.No.215 of 1988 the suit as originally filed was for prohibitory injunction against respondents/defendants trespassing into the suit property. Later plaint was amended incorporating a prayer for recovery of possession of plaint B schedule alleging that during the course of proceeding respondents trespassed into plaint B schedule which according to the appellants is part of plaint A schedule. In O.S.No.173 of 1991 appellants prayed for mandatory injunction and recovery of possession. 2. Plaint A schedule in both the cases is same - 6.39 acres. Plaint B schedule in the suits are different portions of the said 6.39 acres allegedly trespassed upon by respondents/defendants. Respondents contended that appellants have no right or authority to represent the Devaswom, suit properties are not identifiable and that he got title and possession of the portion of the SA Nos.1018 & 1041/1996 2 property in his possession as per Exts.B1 to B5. Trial court found that there is proper identification of the property but held that appellants are not entitled to represent the Devaswom. So far as the title claimed by the appellants is concerned trial court held after holding that properties are properly identifiable that title if any of the appellants is lost by adverse possession and bar of limitation. In O.S.No.173 of 1991 finding of the trial court is that the suit is barred by res judicata in view of decision in O.S.No.215 of 1988. There is also a finding that the suit is bad for non-joinder of necessary parties. Consequently suits were dismissed. First appellate court was of the view that there is no proper identification of the properties in both the cases and accordingly dismissed the appeals without going into other contentious issues. Hence these Second Appeals. Following substantial question of law is framed for a decision : Whether finding of first appellate court that identification of the suit properties is not established is legally correct? It is contended by learned counsel for appellants that there was no reason for the first appellate court to interfere with the finding of the trial court as to proper identification of the properties in the light of Exts.C1 and C2. 3. I stated that O.S.No.215 of 1988 was dismissed by the trial court for the reason that title if any of appellants is lost by adverse possession after holding that there is proper identification of the suit property while O.S.No.173 of 1991 was dismissed for the reason of non-joinder of necessary parties and since the decision in O.S.No.215 of 1988 operated as res judicata. But first appellate SA Nos.1018 & 1041/1996 3 court was of the view that there is no proper identification of the properties. It is argued by learned counsel for appellants that finding of the first appellate court is erroneous. 4. Plaint A schedule - 6.39 acres is the same in both the cases while plaint B schedules are different. It is seen from Ext.C1 in O.S.No.215 of 1988 that advocate commissioner identified plaint A schedule as ABCLMNOPQEF plot as pointed out by the appellants. Neither the survey records nor documents of title relied on by the appellants are made use of or made available for identification of the properties. Same is the situation in so far as plaint A schedule in O.S.No.173 of 1991 is concerned. In the above circumstances, first appellate court cannot be faulted for holding that plaint A schedule in these cases are not properly identified. If that be so, question of proper identification of plaint B schedule in the cases did not arise. 5. So far as possession of plaint B schedule claimed by the appellants before the suit is concerned, evidence is not convincing. Though O.S.No.215 of 1988 was filed originally for decree for prohibitory injunction and later amended incorporating prayer for recovery of possession alleging trespass in the meantime it has come in evidence from Ext.B1 that even prior to O.S.No.215 of 1988 respondents were in possession of plaint B schedule in that case. Appellants were not able to say from when onwards respondents got possession of the property or other details relevant for a decision. It has come out from Ext.C1 in O.S.No.215 of 1988 that advocate commissioner found SA Nos.1018 & 1041/1996 4 different plots in plaint A schedule (identified as shown by the appellants) as in the possession of different persons. Plot E, F and H were found to be in the possession of respondents while other portions were found to be in the possession of third parties. Ext.A1 marked in O.S.No.215 of 1988 states that portions of the properties are in the possession of tenants. Thus there was no acceptable evidence as to what exactly is the property in the direct possession of Devaswom excluding the portions in the possession of third parties. A further fact to be noted is that in O.S.No.215 of 1988 there is a finding that Devaswom had no possession of the disputed property. 6. Coming back to O.S.No.173 of 1991 there is want of proper identification of plaint A schedule property. There also the finding in O.S.No.215 of 1988 stares at the appellants. It is in the above circumstances first appellate court found that there is no proper identification of the suit property and that appellants are not entitled to the reliefs prayed for. Substantial question of law framed above is answered accordingly. Resultantly these appeals fail and are accordingly dismissed without any order as to cost. THOMAS P.JOSEPH, Judge. cks SA Nos.1018 & 1041/1996 5 Thomas P.Joseph, J. S.A.Nos.1018 & 1041 of 1996 JUDGMENT 11th February, 2010