IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RSA.No. 1341 of 2009() ---------------------- AS.83/2001 of SUB COURT, TIRUR OS.89/1994 of MUNSIFF COURT, TIRUR .................... APPELLANTS/SUPPLEMENTARY RESPONDENTS 4,9 & 10 IN APPEAL (LRS OF 1ST RESPONDENT IN APPEAL & LRS OF PLAINTIFF IN SUIT): ------------------------------------------------------------ 1. K.P.PATHUMMA W/O. (LATE) ASSAN, KARINGAPPARA, MELMURI AMSOM, KARAYAKKAD DESAM, TIRUR TALUK. 2. SUFFAIRA, WRONGLY STATED IN THE APPELLATE JUDGEMENT AS SUBAIRA D/O (LATE) ASSAN, DO-DO- 3. AMEERA D/O. (LATE) ASSAN, DO-DO- BY ADV. SRI.A.KRISHNAN RESPONDENT(S): APPELLANT-RESPONDENT 2 & 3 IN APPEAL & SUPPLEMENTARY RESPONDENTS 5 TO 8 IN APPEAL/DEFENDANTS IN SUIT AND LRS OF D3 IN THE SUIT: --------------------------------------------------- 1. ALUNGAL SAIDALIKKUTY, S/O. KUNHAHAMED HAJI, MELMURI AMSAM, KARAYAKKAD DESAM, TIRUR TALUK 2. KARINGAPPARA, ABDUL KHADER, S/O. ASSAN HAJI MELMURI AMSAM, KARAYAKKAD DESAM, TIRUR TALUK. 3. ALUNGAL KAMMUKKUTTY S/O. ASSAN HAJI MELMURI AMSAM, KARAYAKKAD DESOM, TIRUR TALUK. 4. SUBAIR, S/O. ASSAN, DO-DO- 5. SAIDUTTY S/O. ASSAN, DO-DO- 6. JAFFAR, S/O. ASSAN, DO-DO- 7. ANWAR, S/O. ASSAN, DO-DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2010, ALONG WITH RSA NO. 1343 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.Nos.1341 & 1343 of 2009 -------------------------------------- Dated this the 6th day of January, 2010. JUDGMENT These Second Appeals arise from common judgment and decree of learned Sub Judge, Tirur in A.S.Nos.83 of 2001 and 81 of 2001, respectively. First appeals were filed by defendant No.2 and defendant Nos.1 and 3, respectively challenging judgment and decree of learned Munsiff, Tirur in O.S.No.89 of 1994. First appellate court reversed judgment and decree of the trial court and dismissed the suit. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. According to the plaintiff suit property originally belonged to Komu Haji who orally gifted the property to his son, Mohammed in the year 1954. Plaintiff took entrustment of the property from the said Mohammed on 20.6.1963. In the year, 1994 plaintiff purchased jenm right from the said Mohammed as per Ext.A1, assignment deed No.47 of 1994. Thus, the plaintiff is the absolute owner and in possession of the suit property. Alleging that defendants are attempting to trespass he sued for declaration of title and possession and for injunction. Defendant Nos.1 and 3 contended that plaintiff has no right, title or interest in the suit property by name Nenmeni Madan Paramba in R.S.No.75/2. They contended that plaintiff has no property on the east of the road as stated in the plaint. There is no lane on the north of the suit RSA Nos.1341 & 1343/2009 2 property as described in the plaint schedule. Property on the east of the lane belonged to defendant No.1 who purchased the same from Komu Haji as per Ext.B1, jenm assignment deed dated 1.11.1958. Later, there was a partition in the year 1971 among defendant No.1 and others and the suit property was allotted to the share of defendant No.1 and his sister. Trial court found in favour of plaintiff and granted decree. Defendant Nos.1 to 3 filed first appeals as above stated. First appellate court observed that there is no evidence to show that plaintiff has title or possession of the suit property, Ext.A1 is invalid since landlords' right vested with the Government on 1.1.1970 and thereafter the landlord could not have assigned jenm right in favour of plaintiff as per Ext.A1. Holding so, first appellate court dismissed the suit. That is under challenge in these Second Appeals raising by way of substantial question of law whether the finding of the first appellate court regarding title and possession of the appellant is legally correct. 3. The documents which plaintiff produced to prove his title and possession are Ext.A1, jenm assignment deed dated 5.1.1994, Ext.A2, survey plan of field No.75 dated 21.11.1994 and Ext.A3, partition deed dated 14.6.1971 among defendant No.1 and others. Ext.A4 is the revenue receipt dated 10.1.1994, that is after Ext.A1. Yet another document is Ext.A5, certified copy of counter statement filed by defendant No.1 and others before the Taluk Land Board. On the other hand defendants produced Exts.B1 to B4. Ext.B1 as RSA Nos.1341 & 1343/2009 3 aforesaid is the jenm assignment deed dated 1.11.1958 executed by Komu Haji in favour of defendant No.1. Ext.B2 is the jenm assignment deed executed by one Abdulkhader in favour of Kommukutty on 1.11.1991. Ext.B3 series, revenue receipts show that defendant No.1 and others were paying revenue for the suit property from 6.1.1988 onwards. Ext.B4 is another jenm assignment deed executed by one Abdulkhader in favour of Saidalikutty on 7.11.1990. 4. This being a suit for declaration of title plaintiff has to win on the strength of his case. The gift in the year 1954 and entrustment in the year 1963 pleaded by plaintiff are oral and apart from what the plaintiff asserted there is no acceptable evidence in support of that. It is pertinent to note that inspite of plaintiff claiming that his assignor, Mohammed was in possession and enjoyment of the property from 1954 onwards and though plaintiff claimed to be in possession from 20.6.1963 onwards the only document produced by the plaintiff to prove such possession is Ext.A4, revenue receipt dated 10.1.1994 which itself comes into existance after Ext.A1, jenm assignment deed dated 5.1.1994. It is seen that even prior to that defendants have been paying revenue for the disputed property. First appellate court took into consideration the fact that after 1.1.1970 landlord could not have assigned jenm right in favour of plaintiff since under the Kerala Land Reforms Act that right vested with the Government on 1`.1.1970 and hence Ext.A1 is invalid. RSA Nos.1341 & 1343/2009 4 5. One document that is relied on by the plaintiff to show that defendant No.1 had no property in R.S.No.75/2 is Ext.A5, copy of counter statement filed by defendant No.1 and his wife before the Taluk Land Board. There, they disclaimed right over any land in survey No.75/2 but claimed his entitlement in R.S.No.263. It has come in evidence that though defendant No.1 and his wife had contended so in the proceedings before the Taluk Land Board, Land Board had not accepted that contention. Hence relying on Ext.A5, title claimed by defendant No.1 cannot be found against him. On the other hand Ext.B1 shows that Komu Haji assigned his right to defendant No.1 on 1.11.1958. 6. Regarding identification of the property there was no convincing evidence. Commissioner on 27.1.1999 returned the warrant stating that plaintiff did not co-operate to identify the property. It is seen from the records that it was when the case was brought up for trial in the list that after two years of the commissioner returning the warrant plaintiff filed I.A.No.993 of 2001 to appoint advocate commissioner to identify the property. That application was dismissed by the trial court observing that attempt of the plaintiff is to protract the proceedings. Apart from producing Ext.A1 which itself is invalid and a revenue receipt obtained on its strength, plaintiff could not produce any evidence for his title and possession of the suit property. It is in the above circumstances that first appellate court reversed finding of the trial court and held that title and RSA Nos.1341 & 1343/2009 5 possession claimed by the plaintiff over suit property is not established. That finding is based on evidence on record and do not in any way involve any substantial question of law requiring consideration by this Court. These Second Appeals are dismissed in limine. I.A.Nos.3078 and 3079 in R.S.A.No.1341 of 2009 and I.A.Nos.3081 and 3082 of 2009 in R.S.A.No.1343 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks