IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 AS.No. 199 of 2000(E) --------------------- OS.44/1993 of SUB COURT, VADAKARA .................... APPELLANTS/PLAINTIFFS: ------------------ 1. PARAYULLA PARAMBATH RAVEENDRAN, S/O.KUNHIRAMAN, 31YEARS, AGRICULTURIST, CHEKKYAD AMSOM, KURUVANTHERI DESOM, VADAKARA TALUK. 2. PARAYULLA PARAMBATH HARIDASAN, S/O.KUNHRAMAN, AGED 29 YEARS, -DO- -DO- BY ADV. SRI.MKS.MENON RESPONDENTS/DEFENDANTS: --------------------- 1. MANHAPPALLI THAMASIKKUM THAYYIL KUMARAN, S/O.KUNHIRAMAN, 45 YEARS, VALAYAM AMSOM AND DESOM, VADAKARA TALUK. 2. THAYYIL KUNHIKANNAN, S/O.KUNHIRAMAN, 40 YEARS, CHEKKAD AMSOM, KURUVANTHERI DESOM, VADAKARA TALUK. 3. KALLIL THAMASIKUM THAYYIL NANU, S/O. KUNHIRAMAN, 38 YEARS, VALAYAM AMSOM AND DESOM, VADAKARA TALUK. 4. MANHAPPALLI THAMASIKKUM THAYYIL GANGADHARAN, S/O.KUNHIRAMAN, 36 YEARS, VALAYAM AMSOM AND DESOM, VADAKARA TALUK. 5. THAYYIL DIVAKARAN, S/O.KUNHIRAMAN, 34 YEARS, VARAYALIL HOUSE VALAYAM AMSOM AND DESOM, VADAKARA TALUK. 6. THAYYIL SREEDHARAN, S/O.KUNHIRAMAN, 33 YEARS, CHEKKYAD AMSOM, KURUVANTHERI DESOM, VADAKARA TALUK. 7. THAYYIL SURENDRAN, S/O.JANU, 25 YEARS, CHEKKYAD AMSOM, KURUVANTHERI DESOM, VADAKARA TALUK. 8. PUTHIYAVEETTIL PUTHENPURAYIL BALAN, S/O.KUNHIKANNAN, 48 YEARS, VADAKARA AMSOM DESOM AND TALUK. -2- A.S.NO.199/2000 9. THAZA ARAYAKKANDIYIL THAMASIKKUM THAYYIL DEVI, D/O.KUNHIRAMAN, 55 YEARS, VANIMEL AMSOM, DESOM, KUYITHERI DESOM, VADAKARA TALUK. (DIED) 10. THAYYIL JANAKI, D/O.KUNHIRAMAN, 53 YEARS, VANNATHIPOYIL HOUSE, NARIPATTA AMSOM, TINOOR DESOM. 11. PEEDIKAKKANDATHIL THAMASIKKUM THAYYIL SETHU, S/O.KUNHIRAMAN, 30 YEARS, RESIDING AT KUNIYIL HOUSE, THUNERI AMSOM, DESOM, VADAKARA TALUK. 12. THAYYIL CHANDRI, D/O. KUNHIRAMAN, 28 YERS, RESIDING AT KUZHICHALIL, MARUTHONKARA AMSOM, MOYILOTHARA DESOM, VADAKARA TALUK. ADDL. 13. GOPALAN, H/O. DEVI, CHALIYATTUPOYIL HOUSE, TANHE ARIYAKKANDIYIL, BHOOMI VATHUKKAL P.O., KALLACHI, VALAYAM, KOZHIKODE. PIN. 673 517. '' 14. SARADHA, D/O.DEVI, CHALIYATTUPOYIL HOUSE, THANHE ARIYAKKANDIYIL, BHOOMIVATTUKKAL P.O., KALLACHI, VALAYAM, KOZHIKODE PIN 673 517. (R13 AND R14 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R9 AS PER ORDER DTD. 4/2/04 ON IA.1359/03) ADV. SRI.R.K.MURALEEDHARAN FOR R1TO 6 & 9 TO 12 SRI.R.PARTHASARATHY FOR R1TO 6 & 9 TO 12 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ A.S.NO.199 OF 2000 ------------------------------- DATED THIS THE 16TH DAY OF JUNE, 2010 JUDGMENT Plaintiffs in O.S.No.44/93 on the file of the Sub Court, Vatakara are the appellants. The said suit as well as the connected suit (O.S.No.134/95) were filed for permanent prohibitory injunction. The court below jointly tried the suits. O.S.No.44/93 was dismissed and O.S.No.134/95 was decreed by trial court. The parties hereinafter referred are the plaintiffs and defendants as arrayed in the suit. 2. O.S.No.44/93 was filed by two plaintiffs against 12 defendants. The connected suit, namely, O.S.No.134/95 was filed by some of the defendants in O.S.No.44/93 and others as plaintiffs against the plaintiffs in O.S.No.44/93 and others. 3. There are two items of properties scheduled to the plaint O.S.No.44/93. Plaintiffs' claim title over the said -2- A.S.No.199/2000 items by virtue of Exts.A6 and A7 gift deeds. According to the plaintiffs, defendants have no manner of right or possession over the plaint schedule property. The suit was filed for restraining the defendants from trespassing into the plaint schedule property or to interfere with their right and enjoyment of the plaint schedule property. 4. Defendants 1 and 3 to 12 filed written statement denying the plaint averments and they prayed for dismissal of the suit. They claimed title and possession over the plaint schedule property in O.S.No.134/95 on the strength of Ext.B7 assignment deed dated 23/1/93. The Commissioner in Ext.C1 report stated that yellow and blue coloured portions in Ext.C2 plan are the plaint schedule property in O.S.No.44/93. The identity of the said property is seriously disputed by the defendants. The plaint schedule item No.1 which measures 2 acre and 4 cents and item No.2, 50 cents are shown respectively as yellow and blue coloured portions in Ext.C2 plan. The trial -3- A.S.No.199/2000 court found that the father of the plaintiffs in O.S.No.44/93, who is the lst defendant in O.S.No.134/95, testified that R.S.55/1 and R.S.57/1 are not in possession of either the plaintiffs or Manni, who is the predecessor-in-interest. According to the plaintiffs, the properties gifted in their favour by virtue of Exts.A6 and A7 form part of the properties covered by Ext.A3 Will executed by Manni. The trial court held that on the basis of the survey numbers mentioned in Exts.A6 and A7, the plaintiffs in O.S.No.44/93 are not able to identity and title to the suit properties. The court below further held that the Commissioner did not identify the plaint schedule properties with reference to survey numbers, boundary and title deeds. The court below held that the northern and eastern boundary of properties shown in Exts.A6 and A7 gift deeds do not tally with the identification made by the Commissioner in Ext.C1 report. Therefore, the court below held that either on the basis of survey number or on the basis of measurement and boundary, the plaintiffs could not -4- A.S.No.199/2000 establish their case. From the materials on record, it can be seen that the plaintiffs failed to prove the correct identity of the properties with reference to their title deeds and failed to prove right, title or possession over the suit property. Therefore, the suit was dismissed by the trial court. The appeal filed as A.S.No.293/99 against the judgment and decree in O.S.No.134/95 was dismissed by the District Court, Kozhikode by judgment and decree dated 10/12/2002. 5. From the evidence on record discussed above, this Court is of the view that the plaintiffs failed to prove the identity and possession of the plaint schedule properties. Therefore, the court below held that the plaintiffs are not entitled to the reliefs sought for in the plaint. The suit O.S.No.44/93 was filed for injunction simplicitor. No grounds are made out for taking a different view from the view taken by the trial court in the given circumstances. I do not find any reason to interfere with the findings arrived at by the trial court. -5- A.S.No.199/2000 In the result, the appeal fails and accordingly dismissed. No order as to costs. The dismissal of the suit does not preclude the plaintiffs from filing a suit for declaration of title and incidental reliefs. HARUN-UL-RASHID, JUDGE. kcv.