IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 907 of 2007(G)
1. T.V.KARUNAKARAN, S/O VELU,
... Petitioner
2. SWAMIDASAN, S/O GANGADHARAN,
Vs
1. T.V.CHELLAPPAN, S/O VELU,(EXPIRED )
... Respondent
2. T.V.PRABHAKARAN, S/O GOPALAN,
3. AJAYAPPAN, S/O CHAKRAPANI,
4. ADDL. RADHA, WIDOW OF CHELLAPPAN,
5. SUNI, D/O RADHA, AGED ABOUT 33 YEARS,
6. SOFIA, AGED ABOUT 31 YEARS,
7. R.MINI, AGED ABOUT 35 YEARS,
For Petitioner :SRI.V.N.SWAMINATHAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 907 OF 2007
............................................
DATED THIS THE 23rd DAY OF NOVEMBER, 2007
JUDGMENT
Plaintiffs in O.S.97 of 1998 on the file of Munsiff Court,
Cherthala are the appellants. Defendants are the respondents.
Appellants instituted the suit seeking a decree for declaration of
title and mandatory and prohibitory injunction. Plaint schedule
property is 2.23 cents in Survey No.220/7/19 and 10 cents in
Survey No.223/2/5 of Cherthala North Village. Appellants
claimed title to the said property under Ext.A1 assignment deed
dated 31.10.1997. The case of appellants is that on the eastern
side of the plaint schedule property, first respondent and on the
southern side the second respondent are having properties and
with the intention of trespassing into the plaint schedule
property they installed a yellow flag in a G.I pipe in the plaint
schedule property and they have no right to do so and they are
claiming that it is the property of S.N.Trust and respondents
have nothing to do with Sree Narayana Trust and appellants
have title to the plaint schedule property and therefore they are
entitled to the decree for declaration of their title and
mandatory injunction directing removal of the flag installed and
RSA 907/2007 2
for a permanent prohibitory injunction.
2. Respondents in their written statement disputed the title
of appellants in respect of the plaint schedule property. It was
contended that under Ext.A1 title deed, appellants did not derive
any title to the disputed portion of the puramboke land and they
are not entitled to the decree sought for.
3. Learned Munsiff, on the evidence of PWs 1 to 4, Dws 1
& 2, Exts A1 to A7, Ext.B1 and C1 and C1(a), dismissed the suit
holding that appellant did not establish title to the disputed
portion of the property viz, 2.23 cents in Survey No.223/2.
Appellants challenged the decree and judgment before Sub
Court, Cherthala in A.S.93 of 1999. Learned Sub Judge, on
reappreciation of evidence, confirmed the findings of learned
Munsiff and dismissed the appeal. It is challenged in the second
appeal.
4. Learned counsel appearing for appellant was heard.
The argument of the learned counsel is that Ext.A1 takes in the
disputed 2.23 cents in R.S.220/7/19 also and Ext.A3 to A5
anterior title deeds show that western boundary of the property
as “the way” which was subsequently coverted into a road and
therefore courts below should have found that appellants have
RSA 907/2007 3
title to the disputed portion of the plaint schedule property. It
was therefore argued that appellants are entitled to the decree.
5. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. Being a suit
for declaration of title and mandatory injunction, appellants can
succeed only on establishing title set up in the plaint. Neither
the weakness of defence case nor the failure of defendants to
establish their title will enable appellants to get a decree for
declaration of title. Appellants are claiming title under Ext.A1.
Ext.A3 gift deed and Ext.A4 and A5 partition deed are the
anterior title deeds. Trial court as well as first appellate court on
analysing the evidence and appreciating the evidence in the
proper perspective found that disputed 2.23 cents in
R.S.220/7/19 is not covered by these documents. In such
circumstances, appellants cannot claim title to the property.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-