IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RSA.No. 1278 of 2009() ---------------------- AS.86/2004 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.319/1994 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT ------------------- KUTTAPPAN, AGED 74 YEARS, S/O. NARAYANAN, P.K. SADANAM, PUTHUPPALLY VADAKKUM MURI, PUTHUPPALLY VILLAGE. BY ADV. SRI.VAKKOM N.VIJAYAN SMT.V.RENJU SRI.P.ANIYAN SMT.M.A.RAMITHA RESPONDENT(S): RESPONDENTS -------------------------- 1. SAHADEVAN, AGED 47 YEARS, S/O. RAGHAVAN, CHIRAYUDEVADAKKATHIL, PUTHUPPALLY, VADAKKUM MURI, PUTHUPALLY VILLAGE. 2. REMANIKUTTY SAHADEVAN, AGED 43 YEARS, W/O. SAHADEVAN, CHIRAYUDEVADAKKATHIL, PUTHUPPALLY, VADAKKUM MURI. 3. MATHAI, AGED 50 YEARS, S/O. LOOKOSE, MANGALATH VEEDU, PUTHUPALLY VADAKKUM MURI, PUTHUPALLY VILLAGE. 4. BALAKRISHNA PILLAI (DIED), KOTTOOR VEEDU, PUTHUPALLY VADAKUM KOCHUMURI, PUTHUPALLY VILLAGE. 5. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 6. ASSISTANT DIRECTOR, RE-SURVEY, LAND RECORDS, CHENGANNUR. 7. AMBIKA KUNJAMMA, AGED 45 YEARS, W/O. BALAKRISHNA PILLAI, KOTTOOR VEEDU, PUTHUPALLY VADAKKU KOCHUMURI, PUTHUPALLY VILLAGE. 8. KANNAN, AGED 30 YEARS, S/O. BALAKRISHNA PILLAI, -DO- 9. MAYA PRASAD, AGED 27 YEARS D/O. BALAKRISHNA PILLAI, -DO- ADV. SRI.A.SHAFEEK (KAYAMKULAM) FOR R3 SRI.S.MOHANAN FOR R7 GOVERNMENT PLEADER ADV. SRI.S. DILEEP FOR R5&R6 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1278 OF 2009 -------------------------------- Dated this the 12th day of October 2010 JUDGMENT Plaintiff is the appellant. His suit claims for declaration of title, recovery of possession and also for rectification of the entries in the revenue records were turned down by the trial court, which in appeal was confirmed by the lower appellate court as well. 2. Indisputably, the suit property underA1 partition deed effected by the members of an ancient family known as 'Kavarattu family', had been left in common for the spiritual benefits of the family, making use of the income from such property. There was a restrictive covenant in A1 partition deed against alienation of the property providing for its management by the person named therein to be followed in succession as indicated. The case of the plaintiff is that he had obtained title over the above property by virtue of the sale by a member of the above family who had come into management of the property under the terms of A1 partition deed. Defendants 1 to 3, on the basis of some transfer deeds executed by 4th defendant, another junior member of such family, who had no right of management over the property, claim some right and are adopting illegal methods to create resurvey records fraudulently, is the case of R.S.A No.1278 OF 2009 - 2 - the plaintiff for declaration of his title, recovery of possession and rectification of the revenue records over the property. The defendants 1 and 2 jointly and 3rd and 4th defendants, separately, filed written statements disputing the claims raised by the plaintiff. With defendants 1 and 2 and also the third defendant asserting their title over the properties covered by the transfer deeds executed in their favour by the 4th defendant, who, in turn, contending that he had every authority to effect such transfer over the properties, the trial court, having regard to the pleadings and also the materials tendered in the case, concluded that the claim of title raised by the plaintiff over the suit property which is subject to restrictive covenant against alienation under A1 partition deed, is unworthy of any merit. Noticing further that the transfer deeds over the property effected by the 4th defendant in favour of the other defendants 1 to 3, which too is impaired by the covenant under Ext.A1, were earlier in point of time, and, admittedly, as such defendants are in possession of the property, it was held that the plaintiff has not obtained title or possession over the property and hence he is not entitled to the reliefs canvassed for. Plaintiff was thereupon nonsuited. The lower appellate court, concurring with the above findings has dismissed the appeal of the plaintiff. Concurrent decision so rendered by R.S.A No.1278 OF 2009 - 3 - the courts below is challenged in the second appeal. 3. After going through the judgments of the courts below, I find no ground, whatsoever, to interfere with the findings and conclusion drawn for nonsuiting the plaintiff/appellant. Merely because the plaintiff has obtained a transfer deed from someone over the plaint property, in respect of which a restrictive covenant that it should be preserved for the spiritual benefit of the family to which it belonged, and income of the property should be used for the temple of that family, as covered under A1 deed, the plaintiff cannot seek a declaration of his title over the property without establishing the competency and authority of his transferor to convey the property in his favour. Both the courts have concurrently found that the transfer deeds effected in favour of the plaintiff and also that of defendants 1 to 3 by two different members of the family, for whose benefit the property set apart in A1 deed, are not valid and legal. It has also been found from the materials produced that defendants 1 to 3, on the basis of transfer deed effected by 4th defendant, earlier in point of time to that of the transfer in favour of the plaintiff under A2 deed, are in possession and enjoyment of the property. Where both parties claimed under invalid title deeds executed by persons who have no competency to convey the property and the conveyance deeds R.S.A No.1278 OF 2009 - 4 - so executed were found to be against the restrictive covenant covered by A1 partition deed, it was concluded, concurrently, by both the courts that the plaintiff was not entitled to be any of the reliefs sought for in his suit. The decision so rendered on the facts and circumstances and the materials tendered in the case does not suffer from any infirmity and it is only to be upheld. The appeal does not involve any question of law leave alone any substantial question of law for receiving it on the file. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv