IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 SA.No. 281 of 1997() -------------------- AS.104/1995 of SUB COURT, KASARAGOD OS.489/1993 of PRL.MUNSIFF COURT, KASARAGOD .................... APPELLANTS/APPELLANT/PLAINTIFF: ---------------------------------------- KUNHAMMA, (DIED) D/O.CHOYI AND W/O.AMBU, RESIDING AT SHANKARAMPADI IN KARIVADAGAM VILLAGE, KASARAGOD TALUK, P.O SHANKARAMPADI. *SUPPLEMENTAL APPELLANTS: 2. B.NARAYANI. 3. B.SAROJINI. 4. B.KUNHIRAMAN. 5. B.MADHAVI. 6. B.KARTHYAYANI. 7. B.MOHANAN. 8. B.RAGHUNATHAN. 9. B.SEEMANTHINI. 10. B.PRASANNAKUMARI. 11. PRASANTH (MINOR REPRESENTED BY GUARDIAN SUPPLEMENTAL A9) (SUPPLEMENTAL APPELLANTS 2 TO 8 ARE THE CHILDREN OF KUNHAMMA AND NO:9 IS THE WIDOW AND SUPPLEMENTAL APPELLANTS 10 & 11 ARE THE CHILDREN OF PADMANABHAN. ALL ARE RESIDING AT SHANKARAMPADY IN KARIVEDAKAM VILLAGE, KASARAGOD TALUK, P.O SHANKARAMPADY.) *SUPPLEMENTAL APPELLANTS 2 TO 11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 26.3.2001 IN C.M.P.NO.627/2001. BY ADV. MR.K.G.GOURI SANKAR RAI RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------- SHREEDHARAN, S/O.CHOMANNA NAIK, RESIDING AT PALLANJI IN ADOOR VILLAGE, KASARAGOD TALUK, P.O PANDI. ADV. MR.M.C.SEN, SENIOR ADVOCATE MS.SHAHNA KARTHIKEYAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.281 Of 1997 ---------------------- Dated this the 16th day of August, 2010. J U D G M E N T The plaintiff in O.S.No.489 of 1993 on the file of the Munsiff Court, Kasaragode, is the appellant. The appeal is directed against the judgment and decree in A.S.No.104 of 1995 on the file of the Sub Court, Kasaragode. Suit was filed for permanent prohibitory injunction. The trial court held that the plaintiff being miserably failed to establish possession over the plaint schedule property is dis-entitled to any reliefs claimed in the suit. The suit was dismissed. The lower appellate court confirmed the decree and judgment. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. Suit property is 4 acres of land in R.S.No.1/1A1 in Karivedakam village of Kasaragode Taluk. Plaintiff claimed absolute title, ownership and possession in respect of 4 acres of land. Claim is based on Ext.A1 partition deed executed in the year 1966 between the members of the plaintiff's family. The defendant claimed absolute title and ownership over 2 acres of S.A.No.281 Of 1997 ::2:: land in the same survey number. According to him the eastern portion of the plaint schedule property having an extent of 2 acres is in his possession and enjoyment. The case of the defendant is that his father Chomanna Naika got 2 acres of land in R.S.No.1/1A1 under lease arrangement and eversince the date of lease deed his father was in possession of the eastern portion of the suit property and that subsequent to the death of his father the defendant and other family members are in possession of the same. He denied the right, title and interest of the plaintiff over the said extent. In support of the case of the defendant he produced Ext.B1 registered kuzhikanam marupattam document No.1966/1957 executed by two members of the plaintiff's family in the name of the defendant's father Chomanna Naika. He also produced the attested copy of the kuzhikanam deed executed in favour of his father dated 9.9.1987. Ext.B2 is the document. Ext.B3 series are the basic tax receipts evidencing payment of revenue by the defendant in respect of the land in R.S.No.1/1A1. 3. The trial court appreciated the evidence adduced by the parties. The parties adduced oral and documentary evidence. S.A.No.281 Of 1997 ::3:: The trial court appreciated the documents namely, Ext.A1 partition deed, Ext.A2 series of tax receipts, Ext.B1 registered kuzhikanam marupattam document, Ext.B2 attested copy of the kuzhikanam deed, Ext.B3 series are the basic tax receipts, Ext.B4 registered copy of the sale deed etc. in support of the respective contentions taken by the parties. 4. The defendant challenged the partition deed and contended that the partition was executed by the plaintiff with an ulterior motive to defeat the right held by the defendant and his predecessors-in-interest. It is the case of the defendant that two members of the plaintiff's family who are also parties to the partition deed executed the kuzhikanam marupattam in the year 1957 and gave possession of 2 acres of land in the suit survey lying on the eastern portion of the plaint schedule property and that eversince the date of lease deed the defendant's predecessor-in-interest Chomanna Naika came into possession of the said extent of property and in continuation the defendant and other legal heirs are in enjoyment of the property. The courts below noted the fact that in Ext.A1 partition deed it is admitted S.A.No.281 Of 1997 ::4:: that the all the leasehold properties were in the possession of the tenants. PW1 conceded that there were two tenants under the plaintiff when the properties were set apart to her share. Ext.B4 is the copy of the sale deed executed by the plaintiff in favour of the a third party who was examined as DW2. As per Ext.B4 plaintiff assigned 1.55 acres in R.S.No.1/1A1 which is lying on the eastern side of the suit property. As per the boundary shown in Ext.B4, Chomanna Naika's property is lying on the western side of Ext.B4 property. DW2 testified before the court that he purchased the property as per Ext.B4 which is lying on the eastern side of the property possessed by Chomanna Naika. The trial court as well as the appellate court believed the oral evidence of DW2 and held that his evidence is acceptable and was not discredited. Admittedly, DW2 is a vendee of the land which originally belonged to the plaintiff which is lying in R.S.No.1/1A1. The trial court relied on Exts.B1 to B4 and held that the documents also probabilises the case of the defendant that he is possession of an extent of 2 acres of land which is the eastern portion of plaint A schedule property. The trial court also S.A.No.281 Of 1997 ::5:: noticed the fact that the plaintiff failed to take out a commission to show the nature and lie of the property and that the defendant had taken steps to examine DW2 in order to prove that the property lying on the west of his property is in the possession of the defendant. Taking into account the oral and documentary evidence the courts below held that the plaintiff failed to prove that she is in possession of the entire property scheduled in the plaint. The courts below also held that Exts.B1 to B3 strengthens the case of the defendant that he is in possession of 2 acres of land which is the eastern portion of the plaint A schedule property. Since the fact finding courts concurrently found that the plaintiff failed to prove that she is in possession of the entire extent scheduled in the plaint, she is not entitled to the reliefs claimed. The courts below positively found that the defendant is in possession of two acres of land which is the eastern half of plaint A schedule property. In view of the conclusions and findings entered by the courts below based on the materials on record, this Court finds that the same is not liable to be interfered with in exercise of the jurisdiction under Section 100 of the Code S.A.No.281 Of 1997 ::6:: of Civil Procedure. No question of law muchless any substantial question of law arises for consideration in the appeal. The suit is for injunction simplicitor. The question of title was not gone into by the courts below. It is made clear that the question of possession as on the date of suit alone is decided. Therefore the question of title is left open. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-