IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 RSA.No. 878 of 2011() --------------------- AS.195/2007 of PRL.SUB COURT, KOZHIKODE OS.259/1990 of PRL.M.C.,KOZHIKODE-II .................... APPELLANTS/RESPONDENTS/PLAINTIFFS 2 & 3 ----------------------------------------------------------- 1. KOLAZHI ODUNGATTIL KRISHNANKUTTY, S/O.JANAKI AMMA, RESIDING AT PALATHIL PURAYIL, PERUMANNA VILLAGE, VELLAYIKKODE DESOM, KOZHIKODE TALUK. 2. KOLAZHI ODUNGATTIL SARADA, D/O.JANAKI AMMA, RESIDING AT PALATHIL PURAYIL, PERUMANNA VILLAGE, VELLAYIKKODE DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ANEISH RAVINDRA SRI.ARUN KRISHNA DHAN SRI.K.RATHISH KUMAR RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------------------------------------- 1. MADARIKUZHIYIL MUHAMMED, S/O.UNNI HASAN, PERUMANNA VILLAGE, VELLAYIKODE DESOM, KOZHIKODE TALUK. 673 026, PERUMANNA POST. 2. MADARIKUZHIYIL KUNHELAN, S/O.RAYIN, PERUMANNA VILLAGE, VELLAYIKODE DESOM, KOZHIKODE TALUK. 673 026, PERUMANNA POST. 3. MADARIKUZHIYIL MOOSAKUTTY, S/O.RAYIN, PERUMANNA VILLAGE, VELLAYIKODE DESOM, KOZHIKODE TALUK. 673 026. PERUMANNA POST. 4. MADARIKUZHIYIL KADEESA, S/O.RAYIN, PERUMANNA VILLAGE, VELLAYIKODE DESOM, KOZHIKODE TALUK.673 026. PERUMANNA POST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 878 OF 2011 =========================== Dated this the 1st day of August,2011 JUDGMENT Plaintiffs in O.S.No.259/1990 on the file of Munsiff Court, Kozhikode are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property contending that under Ext.A1 kanam assignment deed Padmanabhan Nair assigned 1 acre of land in favour of Kelukutty Nair and Kelukutty Nair assigned 12 ½ cents to Thekkethodi Vellan, 14 cents to Oppurath Sreedharan Nair, 12 ½ cents to Oppurath Velayudhan, 16 cents to Medathil Apputty, 8 cents to Puthukkudi Vasu and retained with him the plaint schedule property having an extent of 37 cents and on the death R.S.A.878/2011 2 of Kelukutty Nair, it devolved on the appellants being the legal heirs and respondents have no manner of right or possession over the same. They attempted to trespass into the plaint schedule property and therefore they are to be restrained by a decree for injunction. Respondents resisted the suit contending that appellants are not in possession of the property and Kelukutty Nair obtained only possession of 63 cents under Ext.A1 assignment deed and that property was alienated by him and appellants are not in possession of the property and they are not entitled to the decree sought for. Respondents also contended that they have been in possession of plaint schedule property for the last several years and in such circumstances appellants are not entitled to the decree sought for. Appellants subsequently amended the plaint to make the plaint schedule property in accordance with the property identified by the Commissioner as plot CDERGH. 2. Learned Munsiff on the evidence granted a R.S.A.878/2011 3 decree finding that plaint schedule property is the remaining property covered under Ext.A1 excluding the 63 cents alienated by Kelukutty Nair and as they are in possession of the property, they are entitled to a decree for injunction. Defendants challenged the judgment before Principal Sub Court, Kozhikode in A.S.195/2007. Learned Sub Judge on reappreciation of the evidence found that appellants did not produce the assignment deeds by which Kelukutty Nair admittedly assigned 63 cents of property out of the property obtained under Ext.A1 and from the description of the property shown in Ext.A1 it is not possible to identify the property and held that appellants are not entitled to the decree sought for. The decree granted by the learned Munsiff was set aside. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel is that respondents in their written statement admitted R.S.A.878/2011 4 that Kelukutty Nair assigned 63 cents of property and therefore there was no necessity to produce the title deed in respect of those properties and the report of the Commissioner shows that Commissioner has identified the property which was sold by Kelukutty Nair and the remaining property was separately marked which is the plaint schedule property and when the property obtained by respondents was separately marked, which is away from the plaint schedule property, first appellate court was not justified in interfering with the decree granted by the trial court. Learned counsel also argued that appellants did not get an opportunity to produce the documents and in case identification is necessary suit is to be remanded to the trial court to grant an opportunity to the appellants to produce the documents. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Appellants are claiming a decree for R.S.A.878/2011 5 injunction in respect of the plaint schedule property contending that it is a portion of the property which was left with Kelukutty Nair, out of the property obtained under Ext.A1 and respondents have no right over the same. It is the case of the respondents that the property obtained by Kelukutty Nair was already assigned and the plaint schedule property does not form part of the property belonging to Kelukutty Nair and appellants are not entitled to the decree. As rightly found by the first appellate court when appellants are admitting that out of the property obtained under Ext.A1, 63 cents was sold and claimed that the balance of 37 cents, which was subsequently reduced to 31.1 cents as identified by the Commissioner, appellants should have produced the sale deeds whereby 63 cents were sold to the third parties to establish that plaint schedule property is the balance extent available with Kelukutty Nair. When under Ext.A1, one acre was obtained and having admitted that 63 cents was sold out of the said 1 R.S.A.878/2011 6 acre, unless the 63 cents so sold forms the southern part of the property obtained under Ext.A1, appellants cannot claim possession of the plaint schedule property, which is admittedly the northern part. Such identification could have been possible, only if the assignment deeds were produced before the trial court and the Commissioner was directed to identify the property covered by each document. 7. I have gone through the copies of Ext.A1 the title deed of the appellants, as well as the reports and plan submitted by the Commissioner. The property identified by the Commissioner, as the property covered under Ext.A1, is part of Ettilakunnu. The northern and southern boundary shown by the Commissioner is also Ettilakunnu. Even if the property so identified is shifted to the further north or towards the south, the boundaries would be the same. It is also not disputed that Ettilakunnu is having an extent of more than 35 acres. The road on the southern side of the R.S.A.878/2011 7 property was admittedly formed later. Therefore based on southern boundary it is not possible to locate the property covered under Ext.A1. In such circumstances, the finding of the first appellate court that appellants did not establish that the property covered under Ext.A1 retained by Kelukutty Nair after assignment of 63 cents is the plaint schedule property and without identifying and demarcating the plaint schedule property, appellants are not entitled to the decree sought for is correct. In such circumstances, the appeal is dismissed. It is made clear that dismissal of the suit will not be a bar to the appellants, to institute a comprehensive suit on proper identification of the property. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006