IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 AS.No. 624 of 1994(A) ------------------------------ OS.44/1992 of SUB COURT, VADAKARA .................... APPELLANT(S): PLAINTIFFS: ---------------------------------------- 1. KUMMOTTUMMAL KUNHI PARVATHI PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK (DIED). 2. DAUGHTER LAKSHMIKUTTY PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 3. NARAYANI PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 4. RADHA PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 5. LEELA PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 6. MADHURI PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 7. SURESH ADIYODI, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 8. PADMAKUMARI PILLIARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 9. REEJA PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. AS.No. 624 of 1994 -2- 10. RAJESH ADIYODI, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 11. LASITHA PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. 12. LATHIKA PILLIYARI AMMA, THUNERI AMSOM, KUDAVANTHERI DESOM, VADAKARA TALUK. (The appellants are represented by their power of attorney holder K.K.Kunhi Krishnan Adiyodi, son of Lakshmi Pilliyari Amma, residing at Thazhecherlore, Valayam amsom desom, Vadakara Taluk, Kozhikode District). (It is recorded that the Ist appellant died and her legal heirs are already in the party array as appellants 2 to 5 and respondent No.1 vide order dated 22.11.1999 on memo cf No.9340/95) BY ADV. SRI.K.RAMAKUMAR RESPONDENT(S): DEFENDANTS: ----------------------------------------------- 1. SUSEELA PILLIYARI AMMA, 'SREYAS', PANOOR. 2. ARUNAN KUMAR ADIYODI, 'SREYAS', PANOOR. 3. RADHAKRISHNAN ADIYODI, P.B.NO.165, DOHA, QUATAR. 4. RANDU PILAKOOL AHAMMED HAJI, SON OF KUNHITHARUVAI, PARAKKADAVU AMSOM DESOM, VADAKARA TALUK, (DIED). 5. HAMEED, SON OF KUNHITHARUVAI, PARAKKADAVU AMSOM DESOM, VADAKARA TALUK, (DIED). 6. POOLOLATHIL ABDULLA, SON OF KUNHITHARUVAI, PARAKKADAVU AMSOM DESOM, VADAKARA TALUK, (DIED). 7. THE CHEKKIYAD PANCHAYAT, REPRESENTED BY THE EXECUTIVE OFFICER, CHEKKIYAD PANCHAYAT. AS.No. 624 of 1994 -3- 8. SMT.AMINA, D/O.KUNHABDULLA, RESIDING AT PILAKOOL, UMMATHUR DESOM, PARAKKADAVU AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT (WIFE OF RANDU PILAKOOL AHAMMED HAJI) 9. SMT.HASEENA, D/O.RANDU PILAKOOL AHAMMED HAJI, UMMATHUR DESOM, PARAKKADAVU AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 10. SMT.ADAM, UMMATHUR DESOM, PARAKKADAVU AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 11. SMT.ANAZ, D/O.RANDU PILAKOOL AHAMMED HAJI, UMMATHUR DESOM, PARAKKADAVU AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 12. SRI.AMIR, S/O.RANDU PILAKOOL AHAMMED HAJI, UMMATHUR DESOM, PARAKKADAVU AMSOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 13. ASYA, W/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 14. AMAR, S/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 15. AFSATH, S/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 16. ANSAR, S/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 17. AMEERA, D/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 18. ASHMIRA, D/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. AS.No. 624 of 1994 -4- 19. ANILA, D/O. HAMEED, RANDU PILAKOOL HOUSE, PARAKKADAVU UMMATHUR DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. (Additional respondents 8 to 12 impleaded as the legal representatives of deceased 4th respondent vide order dated 7.12.2000 on CMP 6693/99 and respondents 13 to 19 are impleaded as legal heirs of deceased 5th respondent.) ADV. SRI.P.PARTHASARATHY FOR R5, R8 TO R12 SRI.B.KRISHNAN SRI.K.K.JAYARAJ FOR R1, R2 SRI.C.VATHSALAN FOR R7. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ A.S.No.624 of 1994 ---------------------------------------------- Dated, this the 16th day of November, 2009 J U D G M E N T K.M.Joseph, J. Appellants are the plaintiffs. The suit was filed for recovery of possession of plaint B-schedule property from respondents 4 to 6 and for partition among plaintiffs and respondents 1 to 3. Injunction was also sought against respondents 4 to 6 from trespassing into the property and consequently claiming for damages. The case of the appellants in brief is as follows:-- The plaint schedule property belonged to Kummottummal Kalyani Pilliyari Amma, the mother of the Ist appellant. She had obtained pattayam for the properties which is in the enjoyment of the thavazhi. She died in 1953 leaving behind the thavazhi. There is a separation by two of her sons and thus plaintiffs and defendants 1 to 3 were the members of the family. Defendants 4 and 5 contested the case of the plaintiffs. It is their case that by a registered partition deed, the properties of one Kunhitharuvai, the father of defendants 4 and 5 had devolved on them. It is their case that they are quarrying AS.No.624/1994 -2- granite for more than twelve years. They have also set up the case that plaintiffs have lost their rights by adverse possession. 2. The trial court, after consideration of the evidence proceeded to dismiss the suit. The evidence consisted of Ext.A1 which is the true copy of settlement adangal issued by the Village Officer, Ext.A2 certified copy of the settlement adangal, Exts.A3, A4 certificates and Ext.A5 registration copy of partition karar executed by Mammu and Kunhabdulla dated 29.2.1988 besides Exts.B1 to B41 documents produced on the side of the contesting defendants. Plaintiffs/appellants examined the 7th appellant as Pw1 and Pw2 purports to be an independent witness. The 4th defendant was examined as Dw1. Aggrieved by the order of the trial court the plaintiffs preferred this appeal. 3. Originally, this Court was pleased to remand the matter giving an opportunity to the parties to adduce evidence. However, the legal representatives of deceased 5th defendant (Shri.Hameed) carried the matter in appeal before the Apex Court. The Apex Court allowed the appeal and AS.No.624/1994 -3- proceeded to remand the matter back to this Court for consideration of the appeal on merits only on the materials already on record. This Court was directed to dispose of the appeal without being influenced by any of the observations made by the Apex Court in the appeal. 4. We heard the learned counsel for the appellants and learned counsel on behalf of respondents 8, 9, 11, 12, 13, 14, 15, 17, 18 and 19. Respondents 13 to 19 were the appellants before the Apex Court. Since there is representation for respondents 13 to 19 except respondent No.16 we proceeded to hear the appeal on merits even though we had not issued notice as such to the 16th respondent. It is submitted by Sri. Parthasarathy, learned counsel appearing on behalf of the other legal representatives of the 5th defendant that there is no conflict of interests between the 16th respondent and the other legal representatives of the 5th defendant. 5. Learned counsel for the appellants would contend that the trial court has erred in not acting upon Exts.A1 and A2. Exts.A1 and A2 are the settlement adangals. AS.No.624/1994 -4- It is contended that it is correctly found that the contesting defendants have not proved title. Pw1 is 36 years of age. The Ist plaintiff was aware of facts. That is why remand was justified. The learned counsel for the appellants would further submit that the adangal receipt would show that the family of the plaintiffs had title over the property and therefore the finding and decision of the trial court is unsustainable. 6. Per contra, learned counsel for the contesting respondents would point out that as far as Exts.A1and A2 are concerned, they are issued only for the purpose of collecting revenue and it cannot be said that the appellants have established title on the strength of Exts.A1 and A2. Reliance was placed on the decision of the learned Single Judge in Narayana Iyer v. Vella {1988 (1) KLT 856} where it is held as under: “The registration of patta under the Act can only be for the limited purpose of securing public revenue from the property to the Government. As proceedings could be taken under the Act only in a summary manner and as S.19 of the Act makes it clear that conferment of registration of the land under the Act in favour of a person is not the final word in the matter it is difficult to AS.No.624/1994 -5- hold on the basis of the conferment of patta alone title to the property claimed by the plaintiff can be recognised. The issue of patta by Sirkar in one's name does not confer title to the property, if he had not already obtained title to it.” 7. We also note that the learned Judge also held that it is not open to the plaintiff to succeed highlighting the weakness of the defendant's case. In that case reliance was placed on the decision in M.M.B.Catholicos v. M.P.Athanasius {AIR 1954 SC 526} where it is held as follows: “The plaintiff in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere destruction of the defendant's title, in the absence of establishment of his own title carries the plaintiff no where.” 8. As far as the contention of the appellants based on Exts.A1 and A2 is concerned, we are in agreement with the contention of the learned counsel for the contesting respondents that it is not open to the appellants to request us to consider Exts.A1 and A2 as conferring title on the appellants. As held by the learned Single Judge, Exts.A1 and AS.No.624/1994 -6- A2 can be treated as issued for the purpose of collecting revenue. When the title of the plaintiffs is disputed it would become necessary for the plaintiffs to produce other documents. We went through the cross examination of Pw1. Going by his testimony he has admitted that he has not seen any document of title relating to the property. It is also not in dispute that there is a family partition. In the family partition the plaint schedule property was not included. This again certainly is a circumstance which probabilises the case of the contesting respondents that plaint schedule property was not treated as belonging to the appellants' family. 9. It may be true that the contesting defendants did not produce documentary evidence as would have helped them to establish their case relating to title to the property. But, when plaintiffs sue on title it is for the plaintiffs to establish their title. Plaintiffs cannot point out the weakness of the defendant's case and yet succeed without proving their case. Pw1, when he was examined has admitted that possession is with the contesting respondents from the year 1973. There is no attempt on the part of the appellants even AS.No.624/1994 -7- after the matter is remanded to produce any documentary evidence in support of their case. It only fortifies us, in our view, that the appellants failed to establish their case. Accordingly, the appeal fails and it is dismissed. Parties are directed to bear their respective costs. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS