IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 RSA.No. 1088 of 2007() ---------------------- AS.99/2003 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.376/1998 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANTS/RESPONDENTS/PLAINTIFFS : ----------------------------------------------- 1. THATTAN TODUKAYIL SADANANDAN, S/O.RAICHAN,AGED 41,RESIDING AT PUDUPPADI AMSOM, KOZHIKODE TALUK. 2. THATTAN THODUKAYIL ARAVINDAKSHAN, S/O.RARICHAN,AGED 40,PUDUPPADI AMSOM,KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SMT.P.RANI DIOTHIMA RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------------------------ 1. PATHUMA,W/O.MUHAMMED (LATE) AGED 62, RESIDING AT VALLIAD MOOPAN KUZHI,PUDUPPADI AMSOM, KOZHIKODE TALUK. 2. AYISHA,D/O.PATHUMMA,AGED 40,VALLIAD MOOPAN KUZHI,PUDUPPADI AMSOM,KOZHIKODE TALUK. 3. BEEVI,D/O.PATHUMMA,AGED 36,VALLIAD MOOPAN KUZHI,PUDUPADI AMSOM,KOZHIKODE. 4. NABEESA,D/O.PATHUMMA,AGED 34 YEARS, VALLIAD MOOPAN KUZHI,PUDUPPADI,KOZHIKODE TALUK. 5. YOUSUF,S/O.PATHUMMA,AGED 42 YEARS, VALLIAD MOOPAN KUZHI,PUDUPPADI AMSOM,KOZHIKODE TALUK. 6. ABDULLA,S/O.PATHUMMA,AGED 38,VALLIAD MOOPAN KUZHI,PUDUPPADI AMSOM,KOZHIKODE TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1088 OF 2007 =========================== Dated this the 4th day of February, 2007 JUDGMENT Plaintiffs in O.S.376/1998 on the file of Additional Munsiff Court, Kozhikode are the appellants. Respondents are the defendants. Appellants instituted the suit for recovery of possession on the strength of title. According to appellants, plaint A schedule property which was originally a Government land was assigned in favour of Paron and his legal heirs assigned the property in favour of plaintiffs under Ext.A5 assignment deed of 1996 and since then they have been in possession of the property. It was contended that subsequently deceased defendant trespassed into the plaint schedule property which is part of plaint A schedule property and reduced it into his possession and they have no right or title to the property and appellants are entitled to a decree for recovery possession of the plaint B R.S.A.1088/2007 2 schedule property on the strength of title. The extent of plaint B schedule property was subsequently amended and shown as 16.6 cents. Respondents resisted the suit contending that plaint B schedule property does not form part of the property assigned under Ext.A1. It was contended that 1 acre including plaint B schedule property was assigned by Government in favour of Muhammed under Ext.B12 and since then Muhammed has been in possession of the property and subsequent to his death respondents being the legal heirs are in possession of the property and appellants have no title to plaint B schedule property and they are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2 and Dws. 1 and 2 and Exts.A1 to A5 and Exts.B1 to B21 and Exts.C1 to C4 relying on the reports and plan submitted by the Commissioner and accepting the evidence of appellants found that plaint B schedule property forms part of plaint A schedule property and plaint A and B schedule R.S.A.1088/2007 3 properties together form the property assigned in favour of the predecessor in interest of appellants under Ext.A1 and obtained by appellants under Ext.A5 and they have title to the property. A decree for recovery of possession was granted. Defendants challenged the judgment before District Court, Kozhikode in A.S.99/2003. Learned District Judge on reappreciation of evidence found that trial court did not properly appreciate the evidence and based on Ext.C1 to C4 the dispute on title cannot be resolved. It was found that appellants failed to establish that plaint B schedule property forms part of plaint A schedule property and appellants have no title to plaint B schedule property. The decree granted by the trial court was set aside and suit was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that first appellate court did not properly appreciate R.S.A.1088/2007 4 the evidence. It was argued that under Ext.A1 Paron was granted 1 acre in R.S.1/1 and plot A as marked by Commissioner in Ext.C4 plan is only having an extent of 83.30 cents and if plot B is also added to the said property, then only it would be a one acre plot and first appellate court should have found that plots A and B together form the one acre assigned in favour of Paron the predecessor in interest of appellants under Ext.A1 and appellants have title to the plaint B schedule property. Learned counsel also argued that evidence of DW1 shows that the property got assigned by Muhammed from the Government is a rectangular plot and if plaint B schedule property is added to plot C as makred in Ext.C4 plan, it is not a rectangular plot and therefore first appellate court was not justified in interfering with the decree granted by the trial court. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. R.S.A.1088/2007 5 6. Being a suit for recovery of possession on the strength of title, appellats can succeed only on establishing their title. Neither the failure of respondents to prove their title nor the weakness of their case will enable appellants to claim decree for recovery of possession without establishing their title. Admittedly the whole property originally belonged to the Government. Property was assigned by the Government under Kerala Land Assignment Act and Ruels. Under Ext.A1, one acre was assiged in favour of Paron in January,1977. Under Ext.B12, on the same day another one acre was assigned in favour of Muhammed. Neither Ext.A1 nor Ext.B12 show the boundaries of the property so assigned. With reference to Ext.A1 or B12 it is not possible to fix the property assigned to the respective assignees. Being an assignment granted by the Government, there would be records available with the revenue authorities showing the plan demarcating the property assigned. Appellants did R.S.A.1088/2007 6 not make any attempt to get the plan produced or to identify the property with referece to the plan. The trial court based on the Commissioner's report found that plot B the plaint B schedule forms part of plaint A schedule property. It is on the ground that, property assigned under Ext.A1 is one acre. At the same time under Ext.B12, Muhammed also obtained one acre. Plot C is having only 77.24 cents. Appellants have no case that the property obtained by Muhammed extends further to the north of plot C as marked in Ext.C4. No such objection was filed to the report submitted by the Commissioner. Therefore if plot B is not included in the property obtained under Ext.B12, property obtained under Ext.B12 by Muhammed could only be 77.24 cents. Therefore if the property is to be fixed with reference to the extent, plot B is to be added both to plot A and plot C. Appellants did not establish any material to hold that plot B forms part of plaint A schedule property obtained under Ext.A1. It is a fact which could have been R.S.A.1088/2007 7 proved by appellants by producing the plan available in the assignment records. On the failure of appellants to adduce evidence and prove that plot B in Ext.C4 plan forms part of the property originally obtained by Paron under Ext.A1 title was not proved. As rightly found by first appellate court, without establishing that fact appellants cannot seek a decree for recovery of possession of plaint B schedule property on the strength of title. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006