IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 SA.No. 676 of 2001() -------------------- AS.98/1995 of SUB COURT, PAYYANNUR OS.129/1994 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT: APPELLANT:PLAINTIFF: -------------------------------------------------------- THAVURATH KUNHIRAMAN, S/O.PARU, AGED 54 YEARS, FISHERMAN, KOROM AMSOM, KANAI DESOM, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER SRI.M.VIJAYAKUMAR RESPONDENTS: RESPONDENTS: DEFENDANTS: ------------------------------------------------------------------------ 1. THAVURATH KALLIYANI, D/O.KOTTAN, AGED 63 YEARS, NO OCCUPATION, KOROM AMSOM, KANAI DESOM, P.O. KANAI, KANNUR DISTRICT. 2. THAVURATH KAMALAKSHI, D/O.KALLIYANI, AGED 28 YEARS, KOROM AMSOM, KANAI DESOM, P.O.KOROM, KANNUR DISTRICT. 3. THAVURATH KAMALAKSHI, D/O.VAIRAN KOTTATHU AMBU, AGED 28 YEARS, KUPPAM AMSOM, KANNANCHIRA DESOM, P.O. KUPPAM, TALIPARAMBA. BY ADV. SRI.M.V.AMARESAN ) SRI.V.N.RAMESAN NAMBISAN` ) R3 THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 676 OF 2001 =========================== Dated this the 24th day of March, 2008 JUDGMENT Plaintiff in O.S.129/1994 on the file of Munsiff Court, Payyannur is the appellant. Defendants are the respondents. Appellant instituted the suit for recovery of possession claiming that he was a tenant of the plaint schedule property having obtained it as per an oral lease from the landlord Kuttoor Vengayil Kallianikutty and he purchased jenm right from the Land Tribunal as per order in S.M.68/87 and there is a house in the property where he was residing and the building is in a dilapidated condition and a portion of the building collapsed and he is residing in a separate building and respondents have no manner of right or title of the property and on 21.5.1994 they attempted to trespass upon the plaint schedule property and appellant resisted them and subsequently they S.A.No.676/2001 2 trespassed into the property and started residence in the building and they reduced the property into their possession and they have no right to continue the possession and so appellant is entitled to recover possession of the property. Respondents resisted the suit contending that there was no oral lease by landlord Kallianikutty in favour of appellant and no property was granted on lease to appellant and appellant did not derive any title to the plaint schedule property under the purchase certificate. It was contended that Kottan, father of the appellant and first respondent and their sister was in possession of 1 acre 35 cents in R.S.No.139/1A and 139/1C as per an oral lease from Vengayil Kunhiraman Nayanar and thereafter Kottan alienated 35 cents as per Ext.B1 sale deed and another 35 cents under Ext.B2 assignment deed and has been in possession of the remaining property and during 1964-65 Kottan availed financial assistance from Scheduled Caste and Scheduled Tribe Welfare Department and put up a building and S.A.No.676/2001 3 Kottan and respondents were residing in that building and on the death of Kottan the property devolved on first respondent, his sister and appellant and appellant has no exclusive title to the plaint schedule property and he is not entitled to a decree for recovery of possession. 2. Learned Munsiff on the evidence of PW1 and Exts.A1 to A18, B1 to B4, C1, X1 and X2 dismissed the suit holding that appellant did not establish the identity as well as title to the plaint schedule property. It was found that under Exts.B1 and B2, Kottan the father assigned portions of the property obtained by him on oral lease and the southern boundary shown in Exts.B1 and B2 is the remaining property in the possession of Kottan and the properties covered under Exts.B1 and B2 were later purchased by appellant under Ext.B3 sale deed and the southern boundary shown in Ext.B3 which is the plaint schedule property, is not the leasehold property of appellant but that of Kottan and appellant has no title to that property and is not S.A.No.676/2001 4 entitled right to recover possession of the plaint schedule property. Appellant challenged the judgment before Sub Court, Payyannur in A.S.No.98/1995. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of learned counsel is that including the properties covered under Exts.B1 and B2, the total property available in the survey number is 1 acre 35 cents and even if Kottan was in possession of more land that assigned under Exts.B1 and B2, apart from the plaint schedule property there is remaining property and it was not properly taken into consideration by the courts below and therefore on the basis that apart from the property covered under Exts.B1 and B2 Kottan had property, courts below were not justified in non-suiting the appellant. It was argued that S.A.No.676/2001 5 eventhough respondents contended that Vengayil Kallianikutty Amma is not the landlord of the property and the property so obtained by Kottan from Vengayil Kunhiraman Nayanar, Ext.B2 shows that the property was obtained by Kottan from Vengayil Kallianikutty Amma and therefore case of respondents should have been disbelieved. It was also argued that apart from the property covered under Exts.B1 and B2 and the plaint schedule property, additional extent is available in the survey number and on the basis that Kottan had other properties, courts below were not justified in holding that appellant has no title to the plaint schedule property. Learned counsel further argued that the southern boundary in Ext.B1 to B3 are wrongly mentioned as the property in the possession of Kottan and that will not disentitle appellant from claiming title to the plaint schedule property under purchase certificate granted in S.M.68/87. 5. On hearing the learned counsel, I do not S.A.No.676/2001 6 find that any substantial question of law is involved in the appeal. 6. The title claimed by appellant was based on an oral lease obtained from the landlady Vengayil Kallianikutty. It was contended that subsequently he purchased jenm right from the Land Tribunal as per order in S.M.68/87. Plaint schedule property is admittedly the property which lies immediately to the south of the properties covered under Exts.B1 and B2. Appellant is admitting the assignment by Kottan his father, covered under Exts.B1 and B2. In fact under Ext.B3 appellant himself later purchased the properties covered under Exts.B1 and B2, from the assignees. The properties sold under Ext.B1 and B2 are the one to the north of the remaining part of the lease hold property obtained by Kottan. Therefore when the property which lies to the south of the properties transferred under Exts.B1 and B2, is the remaining lease hold property of Kottan, that property could not have been obtained by the S.A.No.676/2001 7 appellant who is none other than son of Kottan as per another lease. Eventhough appellant contended that the boundary shown in Exts.B1 and B2 is a mistake, it is not open for him to contend that the boundary shown in Ext.B3 is erroneous. Ext.B3 is a sale deed obtained by the appellant himself with open eyes. Ext.B3 shows that the property purchased thereunder lies immediately to the north of the remaining leasehold property of his father and not his leasehold property as claimed in the suit. When plaint schedule property is the one to the north of Exts.B1 to B3 properties and Exts.B1 to B3 show that the southern property is the leasehold property of Kottan and not the appellant, appellant cannot claim title to that property based on an alleged oral lease. Even if the appellant obtained some property on lease as claimed, it could only be further to the south of the leasehold property of Kottan. Without identifying that property, appellant cannot claim title to the plaint schedule property. In such circumstance, S.A.No.676/2001 8 courts below rightly dismissed the appeal. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006