IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RSA.No. 127 of 2011() --------------------- AS.60/2008 of ADL.SUB COURT, THALASSERY OS.22/2001 of ADDL.M.C.,KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------- C.K.MUSTHAFA HAJI, AGED 59 YEARS, S/O.MAMMU, CHUNDUNNUMMAL KADANKANDI, PADANNOOTT, P.O.MUNDERI, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.A.ARUNKUMAR RESPONDENT(S): RESPONDENT/DEFENDANTS ------------------------------------ 1. PALLICHALIL KUNHAMINA, D/O.PAKKARKUTTY MUSALIYAR, RASHEEDA MANZIL,P.O.MUNDERI, KANNUR DISTRICT. 2. PALLIKKAL MAMMAD, S/O. KUNHAMINA, AGED 38 YEARS, RASHEED MANZIL, KOTTAM ROAD, P.O.MUNDERI, KANNUR DISTRICT. 3. PALLIKKACHALIL SAINUDHEEN, S/O.KUNHAMINA AGED 33 YEARS, RASHEED MANZIL, KOTTAM RAOD, P.O.MUNDERI, KANNUR DISTRICT. 4. PALLIKKACHALIL RASHEEDA, D/O.KUNHAMINA, RASHEED MANZIL KOTTAM ROAD, P.O.MUNDERI, KANNUR DISTRICT. 5. PALLIKKACHALIL ANAZ, S/O.KUNHAMINA, RASHEED MANZIL, KOTTAM ROAD, P.O.MUNDERI, KANNUR DISTRICT. 6. PALLIKKACHALIL ZEENATH, D/O.KUNHAMINA, RASHEED MANZIL, KOTTAM ROAD, P.O.MUNDERI, KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2011, ALONG WITH RSA NO. 128/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NOs.127 & 128 OF 2011 --------------------------------------------- Dated 17th February, 2011 JUDGMENT Plaintiff in O.S.22/2001 who is defendant in O.S.714/2000 on the file of Munsiff's Court, Kannur is the appellant. R.S.A.127/2011 is filed challenging the concurrent decree and judgment in O.S.22/2001. R.S.A.128/2011 is filed against concurrent decree and judgment in O.S.714/2000. O.S.714/2000 was filed by first respondent seeking a decree for injunction and recovery of possession of plaint B schedule property contending that plaint B schedule property is a portion of plaint A schedule property, which was trespassed by the appellant. It is submitted that S.M.Proceedings No.262/1996 RSA 127 & 128/11 2 was initiated in his favour as he claimed 6½ cents of land and Land Tribunal found that he is entitled to only 1 cent and that order was challenged before Appellate Authority as well as High Court and claim of the appellant over the excess extent was rejected and thereafter appellant trespassed into the plaint B schedule property and therefore, a decree of recovery of possession of plaint B schedule property and permanent prohibitory injunction in respect of remaining part of plaint A schedule property was sought. Appellant resisted the suit contending that first respondent has no right or title to the property in his possession and the property belonging to the appellant is not 1 cent but 6½ cents, as is clear from the documents and therefore, first respondent is not entitled to the decree for recovery of RSA 127 & 128/11 3 possession or injunction. 2. Appellant filed O.S.22/2001 seeking declaration of title to plaint schedule property which is described as 6½ cents contending that property originally belonged to Thekke Pallakandi Androotty as per registered deed No.829/74 of SRO, Anjarakkandy and that right was obtained by the appellant and appellant has title to the entire 6½ cents of property and the respondents have no right over the same. Appellant sought declaration of his title and injunction. 3. Both suits were tried jointly along with O.S.148/2001, another suit instituted by the first respondent against four other defendants claiming a decree for injunction in respect of plaint A schedule property. Learned Munsiff on the evidence of son of the RSA 127 & 128/11 4 first respondent as PW1 and appellant as Dw.1 and two witnesses on the side of the appellant as Dws.2 and 3 and Exts.A1 to A18, B1 to B10 and C1 to C8, found that property obtained by the predecessor interest of the appellant is only described by carpenter kole and the extent obtained was only 1 cent and though in the subsequent assignment deed property was described in six feet koles, based on that wrong description appellant cannot claim title to more extent and held that appellant has no title over 6½ cents of property as claimed in O.S.22/2001. That suit was therefore dismissed. Upholding the claim of the first respondent that appellant is only having 1 cent of property and plaint B schedule property was trespassed upon and it forms part of plaint A schedule property belonging to first RSA 127 & 128/11 5 respondent, a decree for recovery of possession and injunction was granted. Appellant challenged the judgment before Sub Court, Thalssery in A.S.43/2008 and 60/2008. Learned Sub Judge on re-appreciation of the evidence dismissed both the appeals. It is challenged in the second appeals. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that though courts below found that appellant has no right or title to 6½ cents of property, the said finding is not based on the evidence and when Ext.B1 title deed establishes that the property obtained is described in six feet koles and extent if calculated is 6½ cents, courts below should have found that appellant has title to the said property. It is RSA 127 & 128/11 6 therefore argued that judgments of courts below are to be set aside. 6. Appellant is claiming right under Ext.B1 which was originally obtained under Ext.A11 marupattom deed No.713/1948. Ext.A11 was executed by Mammykutty in favour of Mariyumma and the property obtained is described in carpenter kole. Property so obtained was having a measurement of 7¾ koles east-west and 10 koles on north-south. The measurement is given not in six feet koles but carpenter koles. There is no dispute that if extent is calculated based on the carpenter kole measurements, extent would only be 1 cent. Marupattom also shows that the said property was given for constructing a shop building. It is under Ext.A12, Mammykutty assigned that property in favour of Narayanan RSA 127 & 128/11 7 Nambiar. But in Ext.A12 the property was described not in carpenter kole but six feet kole. It was subsequently carried out in Ext.B1 executed in fvour of the appellant, based on which appellant is claiming that he is having title to 6½ cents of property. As rightly found by the courts below, property obtained by the appellant is the property obtained under Ext.A11, which is only 1 cents of property. Therefore, irrespective of the mistaken description in the subsequent document, when property which was obtained by the predecessor interest of the appellant is only 1 cent, he cannot claim right or title to the plaint schedule property in O.S.22/2001 or plaint B schedule property in O.S.174/2000. As rightly found by the courts below, based on six feet kole measurement, appellant claimed jenm right RSA 127 & 128/11 8 in respect of 6½ cents of property in S.M.Proceedings No.262/1996. As is clear from Ext.A3 order, that claim was rejected by the Land Tribunal. Appellant challenged that order before the Appellate Authority (Land Reforms). Ext.A3 order was confirmed, as is clear from Ext.A4 order. Ext.A4 order was challenged before this court. By Ext.A5 order revision was also dismissed. In such circumstances, appellant cannot claim that he has right over plaint B schedule property in O.S.174/2000 or plaint schedule property in O.S.22/2001. The title of the first respondent in the plaint A schedule property in O.S.174/2000 is clearly established. It is also proved that plaint B schedule property therein, which is the trespassed property forming part of plaint A schedule property. In such circumstances, I RSA 127 & 128/11 9 find no reason to interferer with the findings of the courts below which are in accordance with the evidence on record. As no substantial question of law is involved appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.