IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RSA.No. 745 of 2011() --------------------- AS.23/2008 of SUB COURT, THIRUVALLA OS.349/2003 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT ----------------------------- KUNJUMMEN GEORGE, AGED 74 YEARS, PUTHUPARAMBIL HOUSOE, PARUMALA MURI, KADAPRA VILLAG,E THIRUVALLA BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW ADV.JENNIS STEPHEN RESPONDENT(S): --------------- SASINDRA PANICKER,AGED 49 YEARS, S/O.NARAYANA PANIKER, PUTHUPARAMBIL VEEDU, PARUMALA MURI, THIRUVALLA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.745 of 2011 ............................................ DATED THIS THE 17th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.349 of 2003 on the file of Munsiff Court, Tiruvalla is the appellant. Defendant is the respondent. Appellant instituted the suit for declaration of title and recovery of possession of item No.2 of the plaint schedule property which is part of item No.1 of the plaint schedule property, contending that item No.1 having an extent of 46 cents originally belonged to Panayannakavu Devaswom and the jenmom right was obtained by the appellant from the Land Tribunal as per purchase certificate 1669/97 and he is in possession of the plaint schedule property and item No.2 having an extent of 20 cents being the southern portion of item No.1 belongs to the appellant absolutely and P.K.Varghese, the brother of the appellant attempted to create false document in respect of item No.1 and trespassed into item No.2, therefore he filed O.S.289 of 1988 against P.K.Varghese and though an order of temporary injunction was granted finding that the defendants obtained possession of the RSA 745/2011 2 property based on a false sale deed executed by P.K.Varghese dated 5.12.2010 and the suit was disposed of. As respondent has no title to item No.2 of the plaint schedule property, appellant is entitled to recover possession of the property on the strength of title. Respondent resisted the suit contending that the property originally belonged to the father of the appellant and P.K.Varghese as per partition deed 342/1100 M.E of Sub Registry Office, Tiruvalla and after his death, it devolved on the appellant and his brothers and sisters and in 1963, appellant along with his brother Kochumman and sister Marykutty divided the 60 cents inherited from the father and as per that partition deed, 20 cents on the southern side was alloted to the share of P.K.Varghese who subsequently assigned the property in favour of the respondent as per sale deed 991/2000 and the respondent is therefore entitled to the said 20 cents and appellant is not entitled to the recovery of possession. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A10 and B1 to B4 dismissed the suit holding that appellant has no title to item No.2 of the plaint schedule property and it belongs to the respondent under Ext.B3 sale deed. Appellant RSA 745/2011 3 challenged the judgment before Sub Court, Tiruvalla in A.S.23 of 2008. Learned Sub Judge on re-appreciation of the evidence found that the property originally belonged to the father of the appellant and P.K.Varghese and it was divided under Ext.B1 partition deed and the southern 20 cents was alloted to the share of P.K.Varghese who in turn assigned it in favour of the respondent under Ext.B3 sale deed and therefore appellant has no title to item No.2 of the plaint schedule property. Though the appellant had contended that Ext.B1 partition deed has not come into effect, trial court and first appellate court negatived the contention. The appeal was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that courts below did not properly consider the effect of Ext.A1 purchase certificate issued by the Land Tribunal and when Ext.A1 is the conclusive title of the right over item No.2 of the plaint schedule property, a decree for declaration of title and recovery of possession should have been granted. Learned counsel also argued that the courts below did not properly appreciate the evidence and on the evidence RSA 745/2011 4 should have found that Ext.B1 partition deed has not come into effect. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the appellant in the plaint did not raise a contention that Ext.B1 partition deed did not come into effect, it is admitted in the plaint that Ext.B1 partition deed was executed. Though it was contended that Ext.B1 partition deed did not come into effect, courts below on appreciation of the evidence found that it had come into effect. That factual finding cannot be interfered. Ext.B1 establishes that item No.2 of the plaint schedule property was alloted to the share of P.K.Varghese. Therefore appellant cannot claim title to the property under Ext.A1 purchase certificate. Though it was argued that under Section 72K of the Kerala Land Reforms Act, Ext.A1 is a conclusive title, when the lease was not in favour of the appellant and instead, the property originally belonged to the father and Ext.A1 purchase certificate was procured without disclosing the existence of Ext.B1 partition deed and without impleading the other legal heirs of the father, it can only be found that based on Ext.A1, appellant cannot claim RSA 745/2011 5 title to item No.2 of the plaint schedule property. When appellant has no title to item No.2 of the plaint schedule property, he is not entitled to a decree for declaration of title or recovery of possession. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk