IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 RSA.No. 554 of 2009() --------------------- AS.12/2000 of SUB COURT, PAYYANNUR OS.52/1997 of MUNSIFF COURT,TALIPARAMBA .................... APPELLANT(S)/RESPONDENT/PLAINTIFF-RESPONDENT IN COUNTER CLAIM: -------------------- KAYIKUNNATH PUTHIYA VEETTIL SUMATHI, D/O.KUNHIRAMAN NAMBIAR, AGED 43 YEARS, PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KASARAGOD DISTRICT. BY ADV. SRI.V.T.MADHAVANUNNI SHRI V.A.SATHEESH RESPONDENT(S)/APPELLANTS 1 TO 5/LEGAL HEIRS OF DECEASED DEFENDANT- COUNTER CLAIMANT: --------------- 1. KIZHAKKEPATH PARU, W/O.LATE KOTTAN, AGED 68 YEARS, AMMANAPPARA, CHITHAPPILEPOIL P.O., PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 2. KIZHAKKEPATH RAMINI, D/O.LATE KOTTAN, AGED 46 YEARS, AMMANAPPARA, CHITHAPPILEPOIL P.O., PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. KIZHAKKEPATH ASHOKAN, S/O.LATE KOTTAN, AGED 40 YEARS, AMMANAPPARA, CHITHAPPILEPOIL P.O., PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. KIZHAKKEPATH AJITHA, D/O.LATE KOTTAN, AGED 36 YEARS, AMMANAPPARA, CHITHAPPILEPOIL P.O., PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 5. KIZHAKKEPATH SUNITHA, D/O.LATE KOTTAN, AGED 27 YEARS, AMMANAPPARA, CHITHAPPILEPOIL P.O., PARIYARAM AMSOM, IRINGAL DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.C.A.JOSEPH FOR R1 TO R5 SRI.K.K.MOIDEEN FOR R1 TO R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.554 of 2009 -------------------------------------- Dated this the 22nd day of December, 2009. JUDGMENT Heard counsel on both sides. 2. The Regular Second Appeal arises from judgment and decree of learned Sub Judge, Payyannur in A.S.No.12 of 2000 reversing judgment and decree of learned Munsiff, Thaliparamba in O.S.No.52 of 1997. Appellant/plaintiff sued for a decree for prohibitory injunction in respect of 50 cents in survey No.126 of Pariyaram Village. Her claim is that the said 50 cents formed part of a larger extent acquired by Kunhiraman Nambiar as per Ext.A1, bhoodanpatra dated 18.5.1969 and later as per Ext.A2, Kunhiraman Nambiar gifted the suit property to the appellant, his daughter. Thus she is in possession and enjoyment of the suit property. Alleging attempt on the part of deceased defendant to trespass into the western portion of the suit property appellant sued for prohibitory injunction. Deceased defendant contended that appellant has neither title nor possession of the suit property and that he got title over 3.98 acres in survey No.1/2 and 126 as per Ext.B1, bhoodanpatra dated 16.6.1968. Out of the said 3.98 acres, ten (10) cents was assigned to Yasodha as per Ext.A5 dated 17.12.1991 and the remaining 3.88 acres is in the possession of the deceased defendant. He claimed that appellant and her father, claiming right as per Ext.A1 which is fraudulently created attempted to trespass into the said 3.88 acres and made a counter claim seeking a decree for prohibitory RSA No.554/2009 2 injunction. Trial court found title and possession of the suit property with the appellant and granted decree. The counter claim was dismissed. First appellate court reversed the findings, dismissed the suit and allowed the counter claim. That is under challenge in this Second Appeal raising by way of substantial questions of law whether the first appellate court was justified in accepting the claim of deceased respondent based on Ext.B1 and whether it was legally correct for the first appellate court to allow counter claim merely on weakness of the case pleaded by the appellant. It is contended by learned counsel that the suit was merely for injunction and hence the first appellate court was not legally correct in enquiring into title and finding that appellant had no title over the property. It is also contended that first appellate court was not justified in allowing the counter claim. Learned counsel for respondents who are legal representatives of deceased defendant supported the judgment and decree of the first appellate court. 3. It is true that suit is for injunction alone but I find that appellant has paid court fee under Section 27(a) of the Court Fees Act obviously as claim of title of the appellant was denied by deceased defendant. Hence an enquiry into title was warranted. There is nothing illegal in the first appellate court enquiring into title claimed by the appellant. RSA No.554/2009 3 4. According to the appellant, Kunhiraman Nambiar acquired a larger extent of property including the suit property as per Ext.A1, bhoodanpatra dated 18.5.1969. Ext.A2, gift deed is based on Ext.A1 and hence that cannot by itself survive or confer title or possession to the appellant. So far as Ext.A1 is concerned, deceased defendant has a contention that it is fraudulently created I have gone through a photocopy of Ext.A1. Evidence of DW3, cousin of Potheru Raman Nambiar in whose favour Ext.A1 was originally issued is that 2.50 acres was assigned to Potheru Raman Nambiar as per Ext.A1 in the year 1969. It is seen from that as contended by deceased defendant the said bhoodanpatra was initially issued in the name of Potheru Raman Nambiar in respect of property comprised in re-survey No.126 of Kannur Village. It is also seen that in Ext.A1 name and address of the assignee has been scored off and the name and address of Kunhiraman Nambiar has been added. A further fact revealed is that in Ext.A1 the boundaries originally stated have been scored off and new boundaries have been incorporated. According to the learned counsel for appellant those corrections are authenticated by the Secretary of the committee. Though according to the appellant the corrections were made by P.T.Narayanan as secretary of the committee, Ext.A1 does not support that contention. Ext.A1 shows that the person who signed it before the corrections were made is one Radhakrishnan. But the corrections are not authenticated by the said Radhakrishnan. The signature which appear below the corrections is RSA No.554/2009 4 that of some other person. Appellant has not adduced evidence to show that Narayanan was the Secretary and he authenticated the correction. It is also seen that Ext.A1 was issued in respect of some land in Kannur Village but plaint schedule refers to the Village as Pariyaram. These discrepancies are not explained by the appellant nor was anybody connected with the committee which issued Ext.A1 examined to explain the corrections. In the circumstances first appellant court was justified in holding that appellant did not prove title as per Ext.A1. 5. So far as possession is concerned, claim of appellant must flow from Ext.A1. If Ext.A1 did not confer possession of the disputed property to the father of appellant, she could not have obtained possession as per Ext.A2. . Documents produced by the appellant are based on Ext.A1 which could not be taken into account. Deceased defendant made a counter claim based on Ext.B1 dated 16.6.1968. Ext.A5 (Ext.X1) is produced to show that of the 3.98 acres assigned to the deceased defendant as per Ext.B1, he assigned 10 cents to Yasodha and what remained with the deceased defendant is 3.88 acres including the suit property. First appellate court referred to Exts.C1 to C4 and the oral and documentary evidence to hold that deceased defendant is in RSA No.554/2009 5 possession of the suit property. The decision of the first appellate court is based on appreciation of evidence. No substantial question of law is involved requiring admission of the Second Appeal. Resultantly, the Regular Second Appeal is dismissed in limine. I.A.No.2957 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks