IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 SA.No. 695 of 1995() -------------------- AS.13/1990 of SUB COURT, HOSDURG OS.152/1987 of MUNSIFF COURT, HOSDURG .................... APPELLANT(S): *MOOTHALA KUMBA, D/O.LATE VELLACHI, HINDU, AGRICULTURIST, RESIDING AT KOLAVYAL IN AJANUR VILLAGE, OF HOSDURG TALUK, P.O. KOLAVAYAL(DIED) *LR IMPLEADED AS SUPPLEMENT APPELLANT NO.2 AS PER ORDER DATED 11.12.2007 IN I.A.NO.2402 OF 2006 M.KORAN, S/O.RAMAN, AGED 75 YEARS, RESIDING AT MANIKKOTH, KOLAVAYAL, AJANOOR VILLAGE, P.O.KOLAVAYAL, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): 1. KARAKADAVATH YESODA, AGED 45 YEARS, 2. KARAKADAVATH BHASKARAN, AGED 42 YEARS. BOTH ARE CHILDREN OF MADHAVI AND KOTTAN KARNAVAN, HINDUS, AGRICULTURISTS NO.1, IS RESIDING AT EDAYILAKAD IN SOUTH THRIKARPUR VILLAGE OF HOSDURG TALUK, P.O.TRIKARPUR NO.2 IS RESIDING AT KOLAVAYAL IN AJANUR VILLAGE OF HOSDURG TALUK, P.O., KOLAVAYAL. ADV. SRI.S.V.BALAKRISHNA IYER (SR.) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = S.A.No.695 of 1995 = = = = = = = = = = = = = = Dated this the 30 th day of January, 2009 JUDGMENT The defendant in O.S.No.152 of 1987 on the file of the Munsiff's Court, Hosdurg is the appellant in this second appeal. Pending this appeal the appellant died and his legal representatives have been brought on record. The said suit filed by the 2nd respondent herein was one for perpetual injunction restraining the appellant herein from trespassing into the plaint schedule property and interfering with the plaintiff's peaceful possession and enjoyment over the same. 2. The plaint schedule property admittedly belonged to Kodoth Tarwad. The case of the plaintiffs can be summarised as follows:- The plaint schedule property was obtained by their father Kottan Karnavan from the Jenmi as per Ext.A1 registered Kuzhikana marupat dated 10.6.1932 and ever since then their father was in possession of that property and he constructed a house and dug a well and effected improvements therein. S.A.No.695 of 1995 2 Subsequently the plaintiff's father assigned the plaint schedule property in favour of his wife Karakadavath Madavi as per Ext.A2 assignment deed dated 7.2.1964. Thereafter, Madhavi was in possession and enjoyment of the suit property. Both Kottan Karnavan and Madhavi were paying the Purappad to the Jenmi as evidenced by Ext.A3 series and Ext.A5 series rent receipts. Madhavi died and her rights over the property devolved on the plaintiffs who are in possession of the same paying the land revenue etc. The plaintiffs have obtained the jenmam right also in respect of the suit property as per Ext.A7 order of the Land Tribunal which has issued Ext.A8, certificate of purchase. Since the defendant who is the distant relative of the plaintiffs approached the plaintiffs and requested for permission to construct a small house in the property, the permission was accorded and the defendant put up a small house in the property and was residing there. The defendant has no manner of right or exclusive possession over the suit property, except a permissive right to reside in the house constructed therein. The defendant subsequently abandoned the house for the past 7 years and is now residing with her uncle Koran at Manikkoth. The house in S.A.No.695 of 1995 3 the property is lying vacant. Hence the suit. 3. The suit was resisted by the appellant/defendant contending, inter alia, as follows:- The plaint schedule property was originally obtained by her mother Vellachi from the Jenmi tarwad and thereafter the said Vellachi was in possession and enjoyment of the property. The defendant, her mother and brothers were residing in the house situated in the suit property. Kottan Karnavar have no right over the property and he came and resided with Vellachi and was helping her in managing the suit property. While so, Kottan Karanavar demanded partition and accordingly the plaint schedule property admeasuring 21¾ cents was allotted to the share of the defendant in an oral partition 30 years ago. The defendant has obtained Ext.B4 certificate of purchase in respect of the suit property from the Land Tribunal, Kozhikode. Ext.B5 series are the tax receipts proving her possession over the suit property. The claim of the plaintiffs is false and the suit is liable to be dismissed. 4. On the side of the plaintiffs, the 2nd plaintiff was examined as PW1 and Exts. A1 to A14 series was got marked. S.A.No.695 of 1995 4 On the side of the defendant she examined herself as DW1 and got marked Exts.B1 to B10-. Ext.C series are the reports and plans submitted by the Advocate Commissioner deputed by the trial court. 5. The learned Munsiff, after trial, as per judgment and decree dated 22.12.89, decreed the suit as prayed for. On appeal preferred by the appellant/defendant as A.S.No.13/1990 before the Sub Court, Hosdurg, the lower appellate court as per judgment and decree dated 31.03.1995 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this second appeal. 6. The following are the questions of law formulated in the memorandum of appeal:- 1. In the absence of proof of Ext.A1 in accordance with law and without production of the counter part and also in the absence of proper proof of Ex.A3 series, have not the courts below erred in coming to the conclusion that plaintiff has, established derivative title and consequent possession of the disputed property in favour of the plaintiff's predecessor from the jenmi. 2. In the light of the uncontraverted evidence in the instant case that the defendant has put up a substantial building in the disputed property and obtained purchase certificate in S.A.No.695 of 1995 5 respect of the disputed property in 1976 and in the light of the continuous payment of assessment for a long period, should not have the courts below found possession with the defendant in respect of the disputed property. 3. Have not the courts below erred in not giving evidence to Ext.B1 to B10 documents to hold possession in favour of the defendant in respect of the disputed property. 4. Have not the courts below erred in casting the burden of proof of the documents on the appellant in the instant case. 5. In the absence of proof of fraud in relation to Ext.B4 should not have the courts below dismissed the suit since the same is conclusive proof of the title and possession of the defendant. 7. I heard the learned counsel appearing for the appellant. The learned counsel reiterated before me the contentions of the appellant. 8. The courts below have concurrently found that pursuant to Ext.A1 Marupat of the year 1932 the plaintiffs' father and thereafter pursuant to Ext.A2 sale deed dated 7.2.1964, the plaintiffs' mother and after her death the plaintiffs have been in possession and enjoyment of the plaint schedule properties paying the land revenue etc. and that the defendant who is a distant relative of the plaintiffs was permitted to occupy the S.A.No.695 of 1995 6 building in the property, that 7 years back to the suit she had abandoned the house and had taken up residence with her uncle one Koran at Manikkoth and that the plaintiffs were thereafter in possession and enjoyment of the plaint schedule property. Both the courts below have carefully evaluated the oral and documentary evidence to arrive at the conclusion that the plaintiffs have proved the possession of the suit property on date of the suit. The findings recorded by the courts below are pure findings of fact and no question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed. However, I make it clear that since the suit was only for injunction simplicitor any observations or findings regarding the title cannot be taken to have being finally decided so as to bind the parties. Dated this the 30 th day of January, 2009. V. RAMKUMAR, JUDGE sj