IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 SA.No. 910 of 1996(G) --------------------- AS.153/1991 of DISTRICT COURT,KOZHIKODE OS.272/1984 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT(S): -------------- ARAPPOYIL RARUKKUTTY, S/O.CHATHU, AGED 59 YEARS, KELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH RESPONDENT(S): --------------- * 1. KALOOR KOTTULI ACHUTHAN, S/O.RARICHUTTY , AGED 62 YEARS, CHEVAYOOR AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. (DIED) 2. THURUTHIYIL SREENIVASAN, S/O.CHIRUKANDAN, AGED 50 YEARS, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE TALUK. * LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 8 AS PER ORDER DATED 6/11/1998 IN CMP 1948/98 ADDITIONAL RESPONDENTS 3. KAMALAM, W/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE 4. BABU, S/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE 5. SOBHA, D/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE 6. SHEELA, D/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE 7. RAMESHAN, S/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE 8. NISHA, D/O.ACHUTHAN, UDAYAMANGALAM HOUSE, KALOOR KOTTULI, KUTHIRAVATTAM.P.O., KOZHIKODE ADV. SRI.V.V.SURENDRAN, P.A.HARISH SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1993/96 IN SA 910/96 DISMISSED 29/1/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.910 OF 1996 ------------------------------------------ Dated 29th January 2010 JUDGMENT Plaintiff in O.S.272/1984 on the file of Munsiff court, Kozhikode-II is the appellant. Defendants are respondents 1 and 2. On the death of first respondent respondents 3 to 8 were impleaded as his legal heirs. Appellant instituted the suit seeking a decree for permanent prohibitory injunction restraining first respondent from trespassing into the plaint schedule property. Suit was originally filed in respect of item No.1 of plaint schedule property having an extent of 45x75 six feet kols in survey No.68/1A, which is shown as in R.S.No.57/1A Nellikode village of Kozhikode. Subsequently on the contentions Sa 910/96 2 raised by the first respondent that the property belongs to the second respondent, he was impleaded as second defendant. Item Nos.2 and 3 of the plaint schedule properties were also incorporated. Item No.2 is 29½ x 38 ½ six feet kols in survey No.58/2A (R.S.99/1A-1B) and item No.3 is 37x31 six feet kols in survey No.58/2A (R.S.99/1A-1B). Case of the appellant is that plaint schedule property originally belonged in jenm to Palakunnath Nangalath tarwad and it was obtained on kanam right by Rarichutty and subsequently kanam right was renewed as per registered document No.2722/1944. According to the appellant, while Rarichutty has been in possession of the property, leaving a small building situated therein, the remaining property was obtained on oral Sa 910/96 3 lease by Chathu, who is none other than the husband of sister of Rarichutty in 1946. Appellant is son of said Chathu. Appellant would contend that the entrustment was on payment of annual rent of Rs.155/- and subsequently under Ext.A1 coolikachit dated 10/2/1956, the building which was excluded originally, was also taken on rent by Chathu on a monthly rent of Rs.1/- and since then Chathu has been in possession of that property including the building and on the death of Chathu appellant has been in possession of the property and respondents have no right over the same and they are not entitled to trespass into the property. 2. First respondent in the written statement contended that the property belonged to K.T.Kamala and on 27/6/1961 it Sa 910/96 4 was obtained by Thiruthiyil Sreenivasan who was subsequently impleaded as second respondent under Ext.B8 kanam deed and while so, Pachukutty brother of the appellant instituted suit O.S.487/1988 against Sreenivasan which was held against Pachukutty and he filed A.S.6/1981 before Sub court, Kozhikode which was also dismissed and Sreenivasan in turn had filed R.C.P.237/1968 for evicting Manja, the mother of appellant from the building situated in the plaint schedule property and that R.C.P was allowed and it was challenged in C.M.A.140/1970 and thereafter in C.R.P.62/1971 and the order for eviction was confirmed and Sreenivasan had taken delivery of the property by filing execution petition under Exts.B6 and B7 and mother of appellant had filed O.A.18/1971 Sa 910/96 5 claiming kudikidappu right and that was also dismissed and the suit was filed thereafter without any bonafide. Second respondent filed a written statement re-iterating the contentions raised by first respondent. 3. Learned Munsiff on the evidence of the appellant as PW1 and four witnesses as PW2 to PW5 and Exts.A1 to A6, B1 to B50 and C1 to C7, dismissed the suit holding that appellant did not establish his possession. Appellant challenged the judgment before District court, Kozhikode in A.S.153/1991. Learned District Judge on re-appreciation of evidence finding that appellant did not establish his possession, dismissed the appeal. It is challenged in the second appeal. 4. Though in the second appeal Sa 910/96 6 notice was ordered to the respondents, no substantial question of law was formulated. In such circumstances, it is necessary to consider whether any substantial question of law is involved in the appeal. 5. Learned counsel appearing for the appellant and second respondent were heard. 6. Suit is only one for injunction. Suit is filed contending that appellant has been in possession of the property and respondents have no manner of right or possession over it. Possession is claimed on the edifice that property excluding the building was obtained by Chathu, father of the appellant under an oral lease in 1946 from first respondent and subsequently as per Ext.A1 cookikachit dated 10/2/1956 the building was also obtained by Chathu on rent Sa 910/96 7 and being the son, appellant is in possession of the property and he claimed a decree for injunction. Case of the appellant is that Rarichutty, father of first respondent obtained the property as per kanam deed from the landlord Palakunnath Nangalath tarwad and subsequently, kanam right was renewed in 1944 as per registered renewal deed. First respondent the son of Rarichutty, on the other hand, contended that the property did not belong to Rarichutty and instead it belonged to K.T.Kamala from whom second respondent obtained property under Ext.B8 dated 27/7/1961 and while second respondent has been in possession of the property, the building was rented out to the mother of the appellant and R.C.P was filed for eviction of the mother of the appellant and ultimately Sa 910/96 8 an order of eviction was passed which was confirmed by this court in C.R.P.62/1971 and building was taken delivery also and it is thereafter the suit was filed. It is also contended that brother of the appellant had filed a suit claiming right over the property, which was dismissed and A.S.6/1981 filed against the dismissal of the suit was also dismissed and it is thereafter alleging false lease, suit was filed. 7. Being a suit for injunction question is only regarding the possession. What was produced by the appellant to prove possession is Ext.A1 copy of coolikachit which was allegedly executed by the father of the appellant in favour of the first respondent and produced before the Land Tribunal. Other documents are Ext.A2 notice Sa 910/96 9 received in respect of land acquisition proceedings and Ext.A3 petition submitted by the appellant before Calicut Development Authority in respect of the said acquisition and Ext.A4 series of photographs with negatives and Exts.B5 and B6 bills. Even though it is contended by the appellant that the property was obtained by Rarichutty on kanam right and while so, Chathu his father obtained the property on oral lease, the case is not that the oral entrustment was by Rarichutty but by the first respondent. As rightly found by learned District Judge, unless appellant has a case that Rarichutty was no more in 1946, there cannot be an oral lease by her son during the life time of Rarichutty. More over, though it is contended that an oral lease with a liability to pay Sa 910/96 10 Rs.155/- per annum was set up not a single receipt was produced to prove that any rent was paid. Even though appellant would contend that the residential building was excluded at the time of lease and it was subsequently rented out by the first respondent, in favour of Chathu in 1956, as against the widow of Chathu second respondent had instituted R.C.P.237/1968 contending that the very same building was obtained by the mother of the appellant on monthly rent and she is a building tenant. Order of eviction was ultimately confirmed by this court in C.R.P.62/1971 and delivery was also effected. Even though appellant would contend that property was obtained by Chathu and Chathu has been in possession of the property, his brother Pachukutty had instituted a suit as Sa 910/96 11 against the second respondent in respect of the very same property and the suit was dismissed and the appeal was also dismissed. Mother of the appellant had also claimed kudikidappu right in respect of the building by filing O.A.486/1977 and it was dismissed. 8. It is pertinent to note that appellant is claiming right only as one of the legal heirs of the deceased father Chathu. If there was an oral lease in favour of Chathu, the widow would have asserted the claim in the R.C.P and would not have claimed a kudikidappu right. Even the other son Pathukutty has no case of an oral lease in his suit as claimed by the appellant. In the light of these facts when there is absolutely no evidence to prove, apart from the interested oral testimony, to prove that Sa 910/96 12 appellant has been in possession of the property and when the documentary evidence establish that it was not Chathu but second respondent who has been in possession of the property, learned Munsiff and learned District Judge rightly dismissed the suit. I find that no substantial question of law is involved in the appeal. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj.