IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 SA.No. 266 of 1998(F) -------------------------- AS.71/1993 of PRL.SUB COURT, KOZHIKODE OS.842/1987 of ADDL. MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S):APPELLANT IN A.S.71/93 AND PLAINTIFF IN O.S.842/87 ----------------------------------------------------------------------- MANDANTAKATHU SUKUMARAN, S/O. CHILLAKUTTY, KARUVANTHIRUTHY AMSOM & DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ RESPONDENT(S):RESPONDENTS IN A.S.71/93 AND DEFENDANTS IN O.S.NO.842/87 ----------------------------------------------------------------------------- 1. MELODY RAJAN, S/O. CHOVVARU, KARUVANTHIRUTHY AMSOM & DESOM, KOZHIKODE TALUK. 2. MELODY THARA , W/O. MELODY RAJAN, KARUVANTHIRUTHY AMSOM & DESOM, KOZHIKODE TALUK. 3. MELODY RAMASAN, S/O.NARAYANAN, KARUVANTHIRUTHY AMSOM & DESOM, KOZHIKODE TALUK. R1 TO R3 BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NOS.770/98, 607/2001 809/1998 & I.A. 233/2003 IN S.A. NO.266/1998 DISMISSED 23/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 266 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011. JUDGMENT The plaintiff, who lost before both the courts below is the appellant before this court. 2. The suit was initially one for injunction, which was later converted into one for recovery of possession on the strength of title. The plaintiff traces his title to Ext.X1 document dated 20.6.1983. As already stated, initially the suit was one for injunction and on the allegation that during the pendency of the suit the defendants had trespassed into a portion of the plaint schedule property, which is shown as plaint B schedule, recovery was also sought for. 3. The defendants contended that the plaintiff had no title to the suit property and it belonged to them. The defendants contended that they had permitted the plaintiff to reside in a portion of the property and he had no S.A.266/1998. 2 independent right over the same. They therefore prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A19 from the side of the plaintiff. The defendants had D.W.1 examined and Exts.B1 to B5 marked. Exts.X1 to X5 are third party exhibits. On a consideration of the evidence in the case, the trial court came to the following conclusions: i) Ext.X1 dated 20.6.1983 is insufficient to prove the title of the plaintiff. ii) The plaintiff was unable to show that he has independent right to possession over the suit property. On the above findings, the suit was dismissed. The plaintiff carried the matter in appeal as A.S.183 of 1993 before the District Court, which was renumbered as A.S.71 of 1993 before the Sub Court, Kozhikode. The lower appellate court confirmed the findings of the trial court and dismissed the appeal. Hence this Second Appeal. S.A.266/1998. 3 5. Notice is seen issued on the following questions of law: “1. Whether on the facts and circumstances of the case, the courts below were right in dismissing the suit, without granting injunction as prayed for in respect of the rest of the plaint A schedule property, even if it is found that the defendants are in possession of plaint B schedule item which is only a small portion o the residential house, situated in the plaint A schedule property? 2. Whether on the facts and circumstances of the case, the courts below are right in holding that exclusive possession is essential to grant injunction, when the defendants themselves have admitted exclusive possession of the plaint A schedule property, except a portion of the house occupied by them? 3. Whether the documents brought to existence on the eve of filing the suit and thereafter can be accepted as evidence to prove earlier possession by the defendants? 4. Whether on the facts and circumstances of the case, was not the onus on the defendants to prove that they were in possession of the plaint B S.A.266/1998. 4 schedule property at the time of filing the suit, as they had admitted that they had shifted their residence to another house of their own at Faroke in 1982? 5. Whether the courts below were right in accepting the case of the defendants that Ext.B2 registered mortgage of 1928 was redeemed in 1964 without a registered document, contrary to the provisions contained in the Transfer of Property Act and the Registration Act? 6. Whether the courts below were right in dismissing the suit in toto, after finding that the plaintiff was in possession of plaint A schedule property, excluding plaint B schedule property?” 6. This appeal will have to succeed on a very short ground. The definite stand of the defendants is that they have no relationship with the plaintiff at all and the plaintiff is a total stranger. The case put forward is that the defendants obtained the property as per Ext.B1 document dated 16.4.1923. They had mortgaged the property as per S.A.266/1998. 5 Ext.B2 dated 20.2.1928. Their further case is that they had allowed the plaintiff to reside in the other portion. 7. The plaintiff on the other hand contended that he had independent title to the suit property and it was the defendants who had trespassed into a portion of the property and reduced it into their possession. The trial court found that the plaintiff had not produced his prior document of title. Ext.X1 by itself was insufficient to clothe the plaintiff with title. However, the trial court was impressed by the document produced by the defendants and the trial court went on to hold that as between the parties the defendants had better title. 8. The finding of the lower appellate court is rather strange. First of all the lower appellate court omitted to notice that the suit is based on title also. The suit was one for recovery of B schedule property on the strength of title. The lower appellate court was not impressed that the suit was based on possession alone, which obviously was not the only issue. Apart from the above fact, in paragraph 8, S.A.266/1998. 6 the lower appellate court finds that the case of the defendants was that the property, which originally belonged to Samoodiri Kovilakam was obtained by Chanthan as per Ext.B1 document. After the death of Chanthan, the property devolved on Alimandan and his brothers. Chanthan died without any wife and children. Thus the lower appellate court goes on to observe that therefore the property devolved on his brothers Chilla, Chovvaru, Koottayi and Choyi. The further finding is that Koottayi is the grand father of the plaintiff and Koottayi did not have absolute right over the entire property. Koottayi had only ¼th share. Therefore the plaintiff could have got only ¼th share over the suit property. It was on that ground also the plaintiff was non- suited by the lower appellate court. 9. The above observation is contrary to the evidence on record and pleadings. Nobody has a case that Koottayi, the grand father of the plaintiff, was related to the defendants. It is true that in Ext.X1 there is mention of one Koottayi. But there is no such averment either in the S.A.266/1998. 7 pleadings or in the evidence. Koottayi was the son of the Alimandan. The defendants in the written statement had denied that there was any relationship between the plaintiff and the defendants. It is obvious that the lower appellate court has not gone into the facts carefully and has not understood the case put forward by the parties, who are setting up independent rights over the suit property. They were not tracing title under the common ancestor. If the finding of the lower appellate court is accepted, it would mean that both the parties trace title to the same ancestor. Further, if the finding of the lower appellate court that the plaintiff is entitled to 1/4th share over the suit property, then clearly plaintiff adorns the character of a co-owner vis a vis the defendants, a case which nobody has. It appears that the lower appellate court has misdirected itself both on facts and in law in coming to the conclusion that the plaintiff is not entitled to any relief. It is clear that the lower appellate court has not properly understood the issues involved in the suit, nor has considered the documents properly. S.A.266/1998. 8 10. It is therefore felt necessary that the lower appellate court, being a final court on facts needs to reconsider the issues again in the light of the observations made in this judgment. The second appeal is therefore allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 30.3.2011. The lower appellate court may make every endeavor to dispose of the matter as expeditiously as possible, at any rate within six months from the date of appearance of the parties before the lower appellate court. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.