IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 SA.No. 748 of 1995(E) --------------------- AS.83/1990 of DISTRICT COURT, PALAKKAD OS.83/1988 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S): -------------- JANAKY, W/O APPUKUTTAN, REP. BY POWER OF ATTORNEY HOLDER DAMAYANDHI, D/O APPUKUTTAN, MANKARA HOUSE, CHOORAKODE, CHULANUR AMSOM, ALATHUR. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): --------------- 1. PAZHANIMALA, S/O ITTAPPAN, MANKARA HOUSE, CHOORAKODE, CHULANUR AMSOM, ALATHUR 2. SAROJINI, W/O PAZHANIMALA -DO- ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.B.JAYAPARAKASH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- S.A. 748/1995 -------------------- Dated this the 8th day of January, 2009 JUDGMENT The plaintiff in a suit for injunction with an alternate prayer for recovery of possession, is the appellant herein. On appreciation of evidence, trial Court dismissed the suit finding that the plaintiff has not been able to prove her title in respect of B schedule property, forming part of A schedule property. There is no dispute as regards the remaining portion of A schedule property and the parties had litigated only with regard to B schedule property. Decree of the trial Court is affirmed by the lower appellate Court and hence the Second Appeal. 2. Plaintiff contended that an extent of 38 cents of property in Survey No.104/A3 and 104/A4 in Peringottukurissy in Alathur Taluk was held by the plaintiff’s husband, Appukuttan, as a lessee, and the Jenmam right of the property was originally vested in the Poomullimana. Appukuttan executed Ext.A1 gift S.A.748/1995 2 deed in relation to the said property in the year 1969 in favour of the plaintiff. Plaintiff thereafter, applied for obtaining a certificate of purchase in relation to the said property as evidenced by Ext.A2. Plaintiff was absent from the property for sometime. While she came back, there arose a dispute as regards the southern boundary of the property in the possession of the plaintiff. She therefore, filed a suit scheduling the disputed property as plaint B schedule, having an extent of 13 cents, described as forming part of plaint A schedule property, having an extent of 30 cents. Though the plaintiff claimed title to 39 cents altogether, what is scheduled as plaint A schedule property is only 30 cents. Plaintiff contended that she is entitled to recover possession of plaint B schedule property on the strength of title. 3. Defendant disputed the plaintiff’s claim as regards the plaint B schedule property. Plaintiff’s husband Appukuttan was not in possession of plaint B schedule property nor did he have the title to the same. He therefore, could not have conveyed it by way of Ext.A1 S.A.748/1995 3 gift deed in favour of the plaintiff. Plaintiff therefore, never came into possession of the disputed property. The portion showed as B schedule was part of the property, allotted in favour of the father of the first defendant, Ittappan. This property was situated on the northern side of another extent of property, also allotted in favour of Ittappan, the father of the first defendant as C schedule item No.1 under Ext.B2 executed between Ittappan, Appukuttan, the husband of the plaintiff, and one Chandran, their brother. Apart from the ancestral property, there was another extent of property available with Ittappan as self acquired property. This was situated on the northern side of the C schedule item No.1 allotted to Ittappan’s share under Ext.B2 partition deed of the year 1958. This property never came into possession of the plaintiff’s husband and description of the southern boundary of the property, gifted in favour of the plaintiff by her husband Appukuttan, under Ext.A1 and which description is carried forth in Ext.A2 certificate of purchase, is the property which was lying in between C S.A.748/1995 4 schedule item No.1 in Ext.B2 partition deed and the property in the possession of Ittappan. Said property was the self acquired property of Ittappan. 4. A Commissioner was deputed by the trial Court. Ext.C4 is the plan filed in this regard by the Commissioner. Commissioner and the first defendant demarcated the property in the possession of the first defendant as C D E F and the property in the possession of the plaintiff as A B C D. There were old trees planted along the line C D which formed a fence and boundary separating the property in the possession of the plaintiff on the northern side and the property in the possession of the first defendant on the southern side. Going by the physical features in the property as identified by the Commissioner and noted in the plan, the first defendant was found to be in possession of plots C D F E, and therefore, it was obvious that the plaintiff’s plea of being in possession of B schedule property was clearly not maintainable. The other plea considered by the trial Court was whether the plaintiff was able to prove title S.A.748/1995 5 with regard to plaint B schedule property comprised within the plot C D F E as noted in Ext.C4 plan. 5. The trial Court took note of the fact that the plaintiff has not been able to produce any prior document of title in so far as her husband Appukuttan is concerned. The boundary description in Ext.A1 gift deed is simply carried forth in Ext.A2 certificate of purchase which the plaintiff asserts as her document of title. When the plaintiff seeks recovery on title, it is upto her to prove title to the property which she seeks to recover. The defendant referred to Ext.B2 partition deed of the year 1958 amongst Ittappan, Appukuttan, the husband of the plaintiff and their brother Chandran. As rightly pointed out by the learned counsel for the respondent, Appukuttan was a party to Ext.B2 partition deed of the year 1958 and the northern boundary of A schedule item No.1, (A schedule being the property allotted to Ittappan, the father of the first defendant) is significant. It refers to self acquired property of Ittappan. Consequently the said property was not the S.A.748/1995 6 subject matter of partition. But the said property ultimately came to be partitioned amongst Ittappan and his children including the first defendant, by Ext.B1 partition deed of the year 1973 and it therefore, came to be in the possession of the first defendant. The plaintiff rested her case of having title to the property, till the point where the southern boundary separates the property belonging to Ittappan, the brother of her husband. She contended that even according to the first defendant, the property in the possession of Ittappan came to be allotted to Narayanan and it continued to be in his possession and if that be so, the property, which is lying immediately adjacent to the property now in the possession of Narayanan, should be treated as the property belonging to the plaintiff. This of course, was not the best method of proving title to the property. But this contention was also considered by the trial Court and it was found that the plaintiff, merely on the strength of the contention taken up by the first defendant, cannot prove title to the entirety of the property lying on the northern side of Ittappan’s S.A.748/1995 7 property, because significantly the northern boundary of A schedule item No.1 allotted to Ittappan under Ext.B2 partition deed of the year 1958 was the self acquired property belonging to Ittappan. Plaintiff was not able to offer any explanation in this regard and the trial Court therefore, came to the conclusion that the plaintiff was not being able to prove her title to the plot C D F E, as noted in Ext.C4 plan within which plaint B schedule property is found to be situated. In these circumstances trial Court came to the conclusion that it is not possible to grant the plaintiff a decree of recovery of possession on the strength of title. This aspect has been affirmed by the lower appellate Court. I have referred the above aspects in detail and having heard Mr.K.Sasikumar learned counsel for the appellant and Mr.Ramachandran Nambiar, learned counsel for the respondents, I do not find my way to disagree with the findings of the Courts below, apart from the fact that these matters which are rested on pure appreciation of evidence do not give rise to any question of law much less any substantial question of law. On perusal of S.A.748/1995 8 evidence both oral and documentary, and on hearing counsel on either side, I am inclined to agree with the findings of the Courts below. For all these reasons, I do not find any merit in the appeal. Accordingly the same is dismissed. V.GIRI, Judge mrcs