IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 RSA.No. 1287 of 2011() ---------------------- AS.31/2006 of SUB COURT, MANJERI OS.596/1999 of MUNSIFF COURT, MANJERI .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------ 1. SANKARA PANICKER (DIED), S/O.CHERUKAT KUNNATH SREEDEVI AMMA, PARIANGADU, AMARAMBALAM AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. SUPPL.2. PARUKUTTY AMMA, W/O.SANKARA PANICKER , 65 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM DESOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 3. SUPPL. 3 C.K.ACHUTHAN, S/O.SANKARA PANICKER, 43 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 4. SUPPL.4 C.K.UNNIKRISHNAN, S/O.SANKARA PANICKER, 40 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 5. SUPPL.5 C.K.LEELA, D/O.SANKARA PANICKER, 36 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 6. SUPPL.6 C.K.PRADEEP KUMAR, S/O.SANKARA PANICKER, 34 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 7. SUPPL. 7 C.K.SURESH BABU, S/O.SANKARA PANICKER, 28 YEARS, CHERUKUNNATH, AMARAMBALAM AMSOM, PARYANGAD DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.A.K.MADHAVAN UNNI SRI.S.RAMACHANDRAN RESPONDENT(S): PLAINTIFF ------------------------ UMMER KOYA, S/O.ANAPPATTATH MUHAMMED HAJI, 49 YEARS, CHOKKAD VILLAGE, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-679 329. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1287 OF 2011 --------------------------------------------- Dated 14th November, 2011 JUDGMENT Legal heirs of defendant in O.S.596/1999 on the file of Munsiff Court, Manjeri are the appellants. Respondent is the plaintiff. Suit was filed for permanent prohibitory injunction or in the alternative recovery of possession of plaint A schedule property. Respondent would contend that plaint B schedule property originally belonged to the defendant and his sister Sarojini Amma. Respondent released his rights in favour of Sarojini Amma under Ext.A1. She transferred the property in favour of the respondent under Ext.A3 and therefore, respondent has title to plaint B schedule property. It was RSA 1287/11 2 contended that Sarojini Amma had purchased jenm right over the plaint B schedule property under Ext.A2 purchase certificate. The respondent assigned 78½ cents out of the plaint B schedule property in favour of Sadakkath Hussain on 3/2/1999 and the balance is under the plaint A schedule property and the defendant has no manner of right over the same. It was claimed that respondent is in possession of the property and even if it is found that he is not in possession, he is entitled to a decree for recovery of possession on the strength of title. 2. The deceased defendant resisted the suit contending that plaint A schedule property does not form part of the plaint B schedule property and the intention of the respondent is to claim portion of the property belonging to him. It was contended that plaint A schedule RSA 1287/11 3 property is to be properly identified and defendant purchased jenm right for 84 cents which lies to the south of the property belonging to his sister Sarojini Amma, under purchase certificate No.1859/1976 issued from the Land Tribunal. He is the absolute owner of the property and northern boundary of the property is the property assigned by the respondent in favour of Sadakkath Hussain in 1999 and Hussain has constructed a barbed wire fencing on concrete poles to separate his property from the property of the defendant and respondent is not having any right over any portion of the property in the possession of the defendant and he is not entitled to claim a decree for injunction or recovery of possession. 3. Learned Munsiff on the evidence found that the property claimed by the respondent under Ext.A1 and the property which RSA 1287/11 4 lies to its south originally jointly belonged to the defendant and his sister Sarojini Amma and evidence of the defendant as DW1 establishes that they measured the property and separated the property allotting northern 85 cents to Sarojini Amma and the southern 84 cents to the defendant and it was the said northern 85 cents which was assigned by Sarojini Amma in favour of the respondent and out of the said property 78½ cents was assigned by respondent in favour of Sadakkath Hussain under Ext.A3 in 1999 and plaint A schedule property is the balance property out of the property obtained by the respondent under Ext.A3 and in such circumstances, respondent has title to the plaint A schedule property. Finding that defendant cannot dispute the title of the respondent under Exts.A1 and A3, a decree for recovery of possession was granted. RSA 1287/11 5 4. Defendant challenged the decree before Sub Court, Manjeri in A.S.31/2006. On the death of the sole appellant, appellants herein were impleaded as his legal heirs. Before the appellate Court, appellant filed an application to appoint a Commission to measure the property belonging to the defendant on the contention that defendant is only in possession of 84 cents which he is entitled to possess and without measuring the property of the defendant, courts below should not have granted a decree for recovery of possession of the plaint A schedule property. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. Application filed for appointment of the Commission was also dismissed. Decree is challenged in the second appeal. 5. Learned counsel appearing for the RSA 1287/11 6 appellant was heard. 6. Argument of the learned counsel is that though the Commissioner had shown plot ADEF as part of 85 cents covered under Ext.A1, it is not part of the property assigned under Ext.A3 and the property which was assigned under Ext.A3 is the property which lies to the north of plot ADEF which was admittedly assigned by the respondent in favour of Sadakkath Hussain and therefore, courts below should not have granted a decree for recovery of possession of the plaint B schedule property. Learned counsel argued that in the plaint, measurement of plaint A schedule property was not given and the Commissioner did not measure the property which lies to the south of plot ADEF and without finding that the property which is in the possession of the appellants is in excess of 84 cents, a decree RSA 1287/11 7 for recovery of possession of plaint A schedule property should not have been granted. 7. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. It is admitted case that the disputed property and the property which lies to its north and the property which lies to the south which admittedly belonged to the defendant, originally jointly enjoyed by the defendant and his sister Sarojini Amma. It was also admitted by the defendant, when examined as DW1, that the sister and brother jointly decided to divide the joint property and properties were measured and the northern 85 cents was separated and defendant released his right over that property to the sister and the southern 84 cents was retained by the defendant and Sarojini Amma released her right in favour of the defendant. It was also RSA 1287/11 8 admitted that defendant and Sarojini Amma obtained purchase certificates in respect of the separate properties. Ext.A2 is the purchase certificate obtained by Sarojini Amma. Defendant admitted that Ext.A1 release deed was executed at that time by the defendant releasing his right over the north 85 cents in favour of his sister Saroji Amma. It is thereafter Sarojini Amma purchased jenm right under Ext.A2 purchase certificate. It is also admitted that under Ext.A3 Sarojini Amma assigned the property covered under Exts.A1 and A2, in favour of the respondent in 1995. Four years thereafter respondent assigned 78½ cents, out of the 85 cents obtained under Ext.A1 in favour of Sadakkath Hussain. After the said transfer respondent is having title over the remaining 6½ cents. Learned Munsiff and learned Sub Judge found that the said 6½ cents is the RSA 1287/11 9 disputed plot ADEF, which lies to the south of the 78½ cents assigned in favour of Sadakkath Hussain and to the north of the property belonging to the defendant. 8. Though learned counsel vehemently argued that without measuring the property in the possession of the defendant and finding that he is in possession of excess property than 84 cents, a decree for recovery of possession should not have been granted, from the evidence it is clear that case of the defendant was that though Ext.A1 shows that Sarojini Amma was having 85 cents, on measurement, at the time of assignment by the respondent in favour of Sadakkath Hussain, it was only 78½ cents. But the specific evidence of DW1 is that when the respondent assigned 78½ cents, in favour of Sadakkath Hussain the property obtained by Sarojini Amma under Ext.A1 RSA 1287/11 10 was measured and it was found that the total extent available is only 78½ cents and not 85 cents and therefore, it was assigned in favour of Hussain and therefore, respondent did not retain any property and hence respondent cannot claim title to the disputed plot ADEF. As rightly found by the courts below when the evidence of defendant establish that it was he who took initiative for the division of the joint properties by the sister and the brother and the properties were measured and 85 cents being the northern plot was separated and allotted to the sister as shown in Ext.A1, he cannot be heard to contend that the property allotted to Sarojini Amma was only 78½ cents and not 85 cents.As rightly found by the courts below,when the property obtained by the respondent under Ext.A3 is 85 cents and the northern plot, which was assigned in favour of RSA 1287/11 11 Sadakkath Hussain, is only 78½ cents, the remaining 6½ cents could only be the disputed portion of the property. In such circumstances, finding of the courts below that the respondent has title to plaint A schedule property and therefore, he is entitled to a decree for recovery of possession of the property is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.