IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 SA.No.274 of 1995 (G) ------------------------------ AS.12/1992 OF SUB COURT, KASARAGOD. OS.68/1987 OF MUNSIFF'S COURT, KASARAGOD. .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------ KODOTH MEENAKSHI AMMA, W/O. K. MADHAVAN, AGED 56 YEARS, RESIDING AT NELLIKKAT IN BALLA VILLAGE, HODRUG TALUK, P.O. BALLA, KASARAGOD DISTRICT. BY ADVOCATE SRI.SANTHOSH V. K. SRI.C.S. SAJIN SRI.KODOTH SREEDHARAN RESPONDENTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. V.KARTHYAYINI, D/O LATE VANNATHAN RAMAN, KARINGOL, BEDADKA VILLAGE, KASARAGOD TALUK, P.O. KUNDANKUZHI, KASARAGOD DISTRICT. 2. KITTAN, S/O LATE VANNATHAN RAMAN, KARINGOL, BEDADKA VILLAGE, KASARAGOD TALUK, P.O. KUNDANKUZHI, KASARAGOD DISTRICT. BY ADVOCATE SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ S. A. No.274 of 1995 ------------------------------------------------ Dated this the 4th day of June, 2008 JUDGMENT The plaintiff in O.S.68/1987 on the file of the Munsiff's Court, Kasaragod who has lost his case concurrently both in the trial court and in the first appellate court is the appellant in this S.A. She filed the suit for a decree of permanent prohibitory injunction restraining the defendants from trespassing into 'A' schedule properties from putting up any building therein and from committing any waste or damage therein inter alia on the allegations that the plaintiff is co-owner in respect of plaint 'A' schedule properties and she is entitled to 1/8th share therein; that the defendants have no manner of right, title or interest over plaint 'A' schedule property; that defendants are making preparations to put up a building in 'A' schedule properties S. A. No.274 of 1995 -2- unlawfully and that may amount to waste and damages; that on 16/02/87 she came to know that the second defendant is making attempts to trespass into a portion of the plaint schedule properties; that it has also come to the knowledge of the plaintiff that the first defendant is obtaining a loan for putting up a building in 'A' schedule properties; that the other owners have not taken any step to prevent the action of the defendants; that the properties are now in the possession of one of the co-owners Sharadamma who is appointed as a party receiver in a partition suit filed as O.S.14/83 before the Sub Court, Kasaragod; and that unless the defendants are restrained by a permanent injunction the plaintiff who is one of the co-owners will be put irreparable injury, loss and hardship and hence, the suit. 2. Defendants filed written statement raising inter alia the following contentions:- S. A. No.274 of 1995 -3- An extent of 62 cents in the plaint schedule property was in the exclusive possession and enjoyment of one K.Balakrishnan Nair who was a big landlord that he surrendered the same among his other properties to the Government of Kerala as per orders in Taluk Land Board case 1058/73/ Hosdrug; and that pursuant to the said order the Government of Kerala came into possession of the said property and subsequently, that was assigned in favour of the first defendant as per assignment deed dt.6/7/1978; that ever since the said assignment the first defendant is in possession of the said 62 cents from out of the suit property as its absolute owner by effecting improvements; that the contention of the plaintiff that plaint 'A' schedule property has devolved on the plaintiff and others on the death of their father/Cheveri Narayanan Nair is not correct; that the S. A. No.274 of 1995 -4- defendants are not aware of O.S.14/83 and neither the plaintiff nor other co-owners have got any right, title, interest or possession over the 62 cents assigned in favour of the first defendant; that he is paying instalments of purchase price as well as land revenue with respect to the said 62 cents; that after assignment in her favour she has reclaimed a portion of the property and has put up foundation for the construction of a house that she has also obtained a loan of Rs.4,500/- from the North Malabar Gramin Bank on the strength of the security of the said 62 cents and the plaintiff is not a co-owner in respect of plaint 'A' schedule properties; and that she does not have 1/8th share therein. The allegation regarding trespass in the scheduled property is untrue and the suit is filed only with ulterior motives of obstructing the construction work of the defendants. S. A. No.274 of 1995 -5- 3. On the above pleadings the trial court raised necessary issues for trial and considering the case in the light of the above pleadings and evidence adduced at trial which consisted of oral evidence of PW1 and DW1 and documentary evidence of Exts.A1 to A5 and B1 to B5 dismissed the suit holding that there is no evidence to show that Sharadamma is appointed as a receiver with regard to the entire extent of the suit property in O.S.14/83; and that the plaintiff has miserably failed to establish that she is co- owner of the entire extent of the said property and that the suit property is in the possession of Sharadamma as receiver; that the plaintiff is not in possession of the suit property as co-owner and that therefore, plaintiff is not entitled to any relief. 4. The aggrieved plaintiff preferred A.S.12/92 assailing the decree and judgment so S. A. No.274 of 1995 -6- passed by the trial court and the said appeal was dismissed by the first appellate court confirming the decree and judgment of the trial court. Hence, this second appeal by the plaintiff who has thus concurrently lost the case in the courts below. 5. The second appeal was admitted on file on 19/05/95 on the substantial questions of law formulated in the appeal memorandum. The substantial questions of law so formulated are the following:- “a) In the absence of any evidence to show that the property alleged to have been surrendered by K. Balakrishnan Nair and assigned to the first defendant from part of the plaint schedule and in the absence of an identification of the property to that effect; have not the courts below erred in dismissing the suit on the wrong assumption that the disputed property by the defendant forms part of plaint 'A' schedule. b) In the light of Ext.A5 showing that the properties surrendered by K. Balakrishnan Nair does not take in the disputed survey number; have not the courts below erred in holding that Ext.B1 to B5 take in the disputed property in plaint 'A' schedule as having assigned to D1 by the Taluk Land Board. S. A. No.274 of 1995 -7- c) In the absence of any material to show that Balakrishnan Nair had any manner of right over the plaint schedule property as on 01.01.70 should not have the courts below rejected the claim of the defendants as per Ext.B1 to B5. d) Should not have the courts below taken judicial notice of the delivery of possession by the court receiver and protected the interest of the plaintiffs without insisting for proof of the receivers possession by examining the receiver. e) Have not the courts below erred in not identifying the disputed property and rejecting the plaintiff claim on the wrong assumption that disputed property was surrendered by Balakrishnan Nair.” 6. It is contended before me by the learned counsel for the appellant on the basis of Ext.A5 that the case of the defendants is that the first defendant got 62 cents comprised in re-survey No.385/1 of Bedadka village in Kasaragod Taluk by virtue of assignment under Ext.B2; those properties having been surrendered by one K. Balakrishnan Nair who is the brother of the plaintiff, but that Ext.A5 would go to show that what he has surrendered and for which compensation roll was prepared by the Tahsildar, Hosdrug is only S. A. No.274 of 1995 -8- for 4.43 acres of land in Sy. No.146/1 and another extent of 18 acres in the same survey number in Kallar village; that the first item is rocky land and the second item is categorised as other dry land and compensation was fixed for the same and that Balakrishnan Nair had not surrendered any extent from out of property comprised in resurvey No.385/1 of Bedadka village in Kasaragod Taluk in Kannure district and therefore, the defendant is not entitled to claim any right over the said 62 cents of property from out of the scheduled property and that injunction should have been granted in relation to the scheduled property which takes in 62 cents over which the first defendant has advanced claim and that the dismissal of the suit by the courts below concurrently was improper. 7. Exhibit B1 is the proceeding of the Taluk Land Board, Hosdrug. It contains order S. A. No.274 of 1995 -9- dated 4.1.1977 as also a revised order dated 2.4.1977 in the matter of ceiling return submitted by K.Balakrishnan Nair, the brother of the plaintiff. Order dated 4.1.1977 shows that the property ordered to be surrendered is 28.05 acres of land taking within it the properties comprised in Sy.No. 146/1 of Panathady Village in Hosdrug Taluk and 0.62 acres of alnd comprised in R.S.No.385/1 of Bedadka Village in Kasaragod Taluk. It is not in dispute that the property referred to as 0.62 acres in R.S.No.385/1 is the scheduled property. In the revised order of the Taluk Land Board dated 2.4.1977 also, though some other slight modifications were made in the order, as regards surrender of 0.62 acres from R.S.No.385/1 of Bedadka Village in Kasaragod Taluk, no change at all is made and the total extent surrendered by Balakrishnan Nair, accepting the option exercised by him and S. A. No.274 of 1995 -10- accepted by the Land Board, is 28.05 acres, which takes in, inter alia, 0.62 acres of land in R.S.No.385/1 of Bedadka Village in Kasaragod Taluk. Exhibit B2 shows that it is the said 0.62 acres of land comprised in R.S.No.385/1 of Bedadka Village in Kasaragod Taluk, possession and ownership of which was with Balakrishnan Nair, that is assigned to the first defendant. The fact that in Exhibit B1 compensation roll, the scheduled property is not made mention of is not a ground to hold that the scheduled property had not been surrendered as Exhibit A5 relates only to properties in Sy.No.146/1 of Kallar Village in Hosdrug Taluk and not any property in Kasaragod Taluk, which was deferred for decision regarding compensation after getting details from Kasaragod Taluk, as evidenced from the letter of the Special Deputy Tahsildar (LR), Hosdrug addressed to the S. A. No.274 of 1995 -11- Chairman, Taluk Land Board, Hosdrug, which is part of Exhibit B1 orders produced by the defendants. It is not the compensation roll that is decisive of the extent surrendered. The plaintiff has no case that any appeal or revision has been filed assailing the order dated 2.4.1977 and that, that order had been modified to any extent. Consequently, therefore, the property that was taken possession of by way of surrender of excess land belonging to Balakrishnan Nair takes in also the scheduled property of 0.62 acres of land in R.S.No.385/1 in Bedadka Village in Kasaragod Taluk, as seen from Exhibit B1 order of the Taluk Land Board dated 2.4.1977. Hence, evidence of Balakrishnan Nair as PW1 given in the suit to the effect that possession had not been taken over by the Government of the said property cannot be believed. S. A. No.274 of 1995 -12- 8. Exhibit B3 is the receipt issued to the first defendant for payment of tax in relation to the scheduled property of 0.62 acres of land in R.S. No.385/1 under Patta No.1198 in relation to the property obtained under Exhibit B2 deed of assignment, which bears the number 2353 and is dated 11.1.1985, which is before the institution of the suit. Exhibit B4 is a similar receipt for payment of tax for the years 1987-88 to 1989-90 on 25.1.1990 in relation to the same property under Patta No.1198 and therein also the serial number is noted as 2353, which is the same number that is shown in Exhibit B2 deed of assignment. This shows, Exhibits B3 and B4 tax receipts were being obtained by the first defendant by paying tax in relation to the property obtained by her as per the assignment deed issued as Sl.No.2353, which is marked as Exhibit B2 in the case. Thus, the first S. A. No.274 of 1995 -13- defendant has established that she has obtained title and possession over the property covered by Exhibit B2, which is 0.62 acres of land comprised in R.S.No.385/1 of Bedadka Village in Kasaragod Taluk, which was then comprised in Kannur district as formation of Kasaragod district was much thereafter. 9. The appellant/plaintiff has miserably failed to show that surrender and assignment are not valid and binding or that the property had been taken over by the Receiver in any proceeding whatsoever. The courts below were, therefore, rightly coming to the conclusion that the appellant does not have possession of the scheduled property and that he is not entitled to the relief of prohibitory injunction. Thus, the dismissal of the suit by the trial court, confirmed in appeal, does not deserve to be interfered with in this second appeal. Having found on facts that the S. A. No.274 of 1995 -14- first defendant is in possession of 0.62 acres of land comprised in R.S.No.385/1 of Bedadka Village in Kasaragod Taluk, which is a portion of the property included in the scheduled property, I do not find any substantial question of law to be answered as formulated in the appeal memorandum. This second appeal, in the circumstances, is devoid of merit and deserves only to be dismissed with costs. 10. In the result, I dismiss the second appeal with costs to the first respondent. K.P.BALACHANDRAN, JUDGE kns/-