IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 RSA.NO. 253 OF 2009() --------------------------------- AS.82/2004 OF SUB COURT, PAYYANNUR OS.173/1993 OF MUNSIFF COURT, THALIPARAMBA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KOKKADAN LAKSHMANAN,S/O.KORAN, AGED 38 YRS,TRADER, RESIDING AT ANDOOR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): RESPONDENT/DEFENDANTS ----------------------------------------------------------------- 1. A.V.PRAMARAJAN ALIAS NARAYANAN, S/O.P.C.KUNHIKAMMARAN NAMBIAR, AGED 36 YRS, BUSINESS, ANDOOR AMSOM, THALYIL DESOM, P.O.KALLIASSERI, TALIPARAMBA TALUK, KANNUR DIST. 2. A.V.THANKAMANI, D/O.KUNHIKAMMARAN NAMBIAR, AGED 34 YEARS, NO OCCUPPATION ANDOOR HOUSE,ANDOOR AMSOM,THALYIL DESOM,P.O.KALLIASSERI, TALIPARAMBA TALUK, KANNUT DISTRICT. 3. P.G.GOVINDA PODUVAL,FATHERS NAME NOT KNOWN, AGED 56 YEARS,NO OCCUPATION,RESIDING AT ANDOOR AMSOM, THALYIL DESOM,P.O.KALLIASSERI, TALIPARAMBA TALUK, KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2009 ALONG WITH R.S.A. NO.254 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NOS.253 & 254 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of September, 2009 J U D G M E N T ---------------------- These appeals arise from common judgment and decree passed by learned Sub Judge, Payyannur in A.S. Nos.82 of 1994 and 83 of 1994 respectively arising from common judgment and decree in O.S. Nos.173 of 1993 and 175 of 1993 of the Munsiff's Court, Taliparamba. Parties are referred to as plaintiff and defendant (O.S. No.175 of 1993) in the trail court. 2. Plaintiff in O.S. No.173 of 1993 is the defendant in O.S. No.175 of 1993. Both suits are filed for a decree for prohibitory injunction. Keezhthully Devaswom is the plaintiff in O.S. No.175 of 1993 and claimed that suit property belonged to and is in the possession of the plaintiff. Defendant contended that plaintiff has no right, title, interest or possession of the suit property and that he is in possession of 16 cents as per Ext.A1, sale deed No.143 of 1992. Suit property was acquired by one Kari Kunhappa as per Marupatt deed No.522 of 1949. Kari Kunhappa was in possession of the property from 1947 onwards. While so he assigned 16 cents to the defendant as per Ext.A1. Defendant in O.S. No. 175 of 1993 filed O.S. No.173 of 1993 seeking decree for prohibitory injunction in respect of the R.S.A. Nos.253 & 254 of 2009 -: 2 :- property mentioned therein claiming that he is in possession as contended in the written statement in O.S. No.175 of 1993. Plaintiff while contenting that that property belonged to and in possession of the Devaswom and Kari Kunhappa had no right, pleaded that defendant is not entitled to any relief of injunction. Defendant claiming right of way through the property allegedly having a width of five feet made a counter claim. Learned munsiff found that property is in the possession of the plaintiff (O.S. No.175 of 1993) and granted a decree in that suit. O.S.No.173 of 1993 and counter claim were dismissed. First appellate court concurred with the common judgment and decree. Hence these Second Appeals. It is contended that finding of the courts below that defendant has no possession over the disputed property is not correct. Learned counsel contended that courts below have not appreciated the evidence properly. It is also contended that the purchase certificate issued by the Land Tribunal in favour of defendant ought to have taken into account. 3. It is not disputed by the defendant that Jenm of the property is vested with Keezthully Devaswom, plaintiff. Contention of defendant is that Kari Kunhappa was in possession of the property as per Marupatt deed No.522 of 1949 from whom he got assignment of 16 cents as per Ext.A1, 14.1.1992. He produced Ext.A2 series for payment of revenue which are dated 8.1.1992 and 14.5.1992, former R.S.A. Nos.253 & 254 of 2009 -: 3 :- being in the name of Kari Kunhapa and the latter being in the name of defendant. But courts below found that even in Ext.A1 there is no reference to Marupatt deed No.522 of 1949, not to say that said document was not produced by the defendant. There is thus no evidence to show that Kari Kunhappa had got tenancy right or possession of the disputed property so that he could convey valid title and possession in favour of the defendant. 4. So far as the purchase certificate obtained by the defendant is concerned it is not disputed that Suo Moto Proceeding was initiated pending suit. It is in S.M.P.No.112 of 1998 that as per Ext.A4, order Land Tribunal issued Ext.A3, purchase certificate in favour of defendant on 10.10.2005. That being a proceeding pending suit, rule of lis pendense under Section 52 of the Transfer of Property Act would apply as held by this Court in A.K. Venkatarama Iyer v. Vesu Amma (1995 (2) KLJ 656). This Court in Parameswaran Thampi v. Podiyan Thomas (1984 KLT 397) also held that application of the doctrine of lis pendense is not inconsistent with the provisions of the Kerala Land Reforms Act and that Land Tribunal should have awaited the decision of the civil court in the matter. Therefore based on Exts.A3, A4 and X1, defendant cannot claim any right or possession. A further fact to be noted from R.S.A. Nos.253 & 254 of 2009 -: 4 :- Ext.X1 is that even before the Land Tribunal, Marupatt deed claimed by defendant was not produced and no other document to prove the alleged tenancy of Kari Kunhappa was produced. The only document based on which Land Tribunal issued Ext.A3, purchase certificate is a possession certificate of 1998 issued by the Village Officer where also there was no reference to the Marupatt deed. Nor did the Village Officer say that predecessor of defendant had been in possession of the property from 1947 onwards. Therefore purchase certificate pendente lite cannot save the defendant. Courts below considered the evidence and found that possession of the suit property is with the Jenmy, plaintiff in O.S. No.175 of 1993 (defendant in O.S. No.173 of 1993) and hence defendant in O.S. No.175 of 1993 (plaintiff in O.S.No.173 of 1993) is not entitled to the reliefs as prayed for. Decision of the case rests on proper appreciation of the evidence on record. No substantial question of law is involved. Second Appeals are without any merit and are only to be dismissed. Second Appeals are dismissed. THOMAS P.JOSEPH, JUDGE. vsv