IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 900 of 2009()
1. KOODALIYAN RAGHAVAN, S/O.THALA,
... Petitioner
Vs
1. KUNNUMPURATH WILSON,
... Respondent
2. KOODALIYIL THALA, D/O.CHEERAKUTTY,
3. KOODALIYIL NARAYANI,
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.K.V.PAVITHRAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/11/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.900 of 2009
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Dated this the 18th day of November, 2009
J U D G M E N T
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Second Appeal arises from judgment and decree of learned Sub
Judge, Thalassery in A.S. No.119 of 2005 reversing judgment and
decree of learned Munsiff, Kuthuparamba in O.S. No.549 of 1998.
Respondent No.1 sued appellant and others for declaration of title and
prohibitory injunction. Trial court decreed the suit holding that
property has not been properly identified. On appeal at the instance
of respondent No.1, first appellate court found that property has been
properly identified as per Exts.C1 and C2, respondent No.1 has title
over the suit property and granted the reliefs as prayed for. That
judgment and decree are under challenge at the instance of
defendant No.2. Parties are referred to as plaintiff and defendants as
in the trial court for convenience.
2. According plaintiff suit property along with other items
belonged to defendant No.1 under an oral lease which was renewed as
per registered deed No.1345 of 1952. Defendant No.1 got purchase
certificate from the Land Tribunal in the year 1976, a copy of which is
marked as Ext.A1. She gifted a portion of the property to defendant
No.2 and the remaining property to defendant No.3. Exhibit A2 is the
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copy of assignment deed No.3077 of 1986 executed by defendant
No.1 in favour of defendant No.3 in respect of the suit property.
Defendant No.3, as per Ext.A4 assigned the suit property in favour of
plaintiff on 3.11.1997. Later, defendant No.1 cancelled gift deed
No.3077 of 1986 as per a cancellation deed copy of which is marked
as Ext.A5. Apprehending trespass plaintiff laid the suit for declaration
of his title over the suit property and prohibitory injunction against
trespass by defendant Nos.1 and 2. Defendant No.3, assignor of
plaintiff did not contest the suit. Defendant Nos.1 and 2 filed separate
written statements but raising identical contentions. According to
them defendant No.1 got the property in the year 1952 and though the
document mentioned the extent of the property as 35 x 35 Koles she
had not measured the property at that time. She thought that the
total extent of the property is 1.50 acres and under that impression
assigned 75 cents on the western side to defendant No.2 (the
document is not produced) and the remaining portion in favour of
defendant No.3 as per Ext.A2. 75 cents on the west of the property
assigned to defendant No.2 was taken by defendant No.1 on oral
lease for and on behalf of defendant No.2 at a time when he was a
minor. After defendant No.2 attained majority he is in possession of
the said 75 cents. Defendant Nos.1 and 2 claimed that plaintiff has
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not acquired any title over the suit property as no such extent was
available for defendant No.3 to assign to the plaintiff. Trial court
found that identity of the property is not established and that plaintiff
failed to prove his title and possession. Plaintiff lost the case in the
trial court. First appellate court reversed that judgment and decree
and granted relief to the plaintiff. Hence the Second Appeal raising by
way of substantial question of law whether court could grant a decree
for declaration of title and injunction without identification of the
property and when the plaintiff failed to prove his possession of the
property. Further substantial question of law raised is whether when
the assignor of the plaintiff has no title or possession plaintiff as
assignee could claim the same. It is contended by learned counsel
that findings entered by the first appellate court are erroneous and
give rise to the substantial questions of law above stated.
3. So far as the identification of the property is concerned,
defendant No.2 has not produced the document in his favour
executed by defendant No.1. Exhibit A1 is the copy of purchase
certificate obtained by defendant No.1 on 16.2.1976 and it is in
respect of 41.28 ares. Boundary descriptions are given in Ext.A1.
Exhibit A2 is the gift deed dated 21.11.1986 executed by defendant
No.1 in favour of defendant No.3. There, it is stated that defendant
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No.1 got the property as per an oral lease and marupat (document
No.1345 of 1952). As per Ext.A2, 75 cents (described in the plaint
schedule) was gifted to defendant No.3. Boundary descriptions in
Ext.A2 would show that on the east of the said 75 cents is the property
gifted to defendant No.2. Northern and western boundary descriptions
are as in Ext.A1. Properties on the southern side belonged to Chirutha
and husband of defendant No.3. Exhibit A3 is the receipt for
payment of revenue for 75 cents obtained by defendant No.3. It is
that property which defendant No.3 has assigned in favour of plaintiff
as per Ext.A4. In Ext.A4 extent of the property is stated as 75 cents
and the boundary descriptions are as in Ext.A2. Exhibit A5 is the
copy of cancellation deed dated 4.11.1997 executed by defendant
No.1 cancelling Ext.A2, gift deed in favour of defendant No.3. It is
interesting to note that though defendant Nos.1 and 2 contended that
defendant No.1 had not that much extent of property as stated in the
purchase certificate and as such there was no such property in
existence as stated in Ext.A2 to be gifted to defendant No.3,
defendant No.1 has stated the boundary descriptions of the property in
Ext.A5, cancellation deed in the same way it is given in Ext.A2. In fact
the statement in Ext.A5 is that defendant No.3 got Ext.A2 executed by
defendant No.1 on misrepresentation. But there is no evidence to
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show any such misrepresentation.
4. Contention raised on behalf of defendant Nos.1 and 2 is
that property on the west of the property gifted to defendant No.2 was
acquired by defendant No.1 on lease on behalf of defendant No.2 at a
time when the latter was a minor and on his attaining majority he took
possession of the said property. It is not as if there was no property
available on the west of property gifted to defendant No.2, instead,
claim is that property on the west was acquired by defendant No.1 on
behalf of defendant No.2 on oral lease when the latter was a minor.
That contention is not established by any evidence. After
measurement of the property with the assistance of Village Assistant
and relevant records Advocate Commissioner has reported that plot
No.1 measuring 42.99 cents and plot No.2 measuring 39.99 cents
(together 74.98 cents) is the property gifted to defendant No.2 and
plot No.3 is 74.99 cents on the further west gifted to defendant No.3
as per Ext.A2 (which defendant No.3 conveyed to plaintiff as per
Ext.A4). Ofcourse there was some discrepancy in the survey number
and extent which the first appellate court observed is not fatal since
boundary descriptions are clear and encompassed the suit property.
First appellate court also observed that apart from challenging Exts.C1
and C2 there was no attempt on the part of defendant Nos.1 and 2 to
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remit the report and plan. Though defendant No.2 filed a work memo
before the Commissioner to identify the 42.99 cents in his possession
under the oral lease, he did not produce the document concerning the
gift in his favour. It is in the above circumstances that first appellate
court answered the issues in favour of the plaintiff. There is proper
identification of the property and plaintiff has proved his title based on
the documents produced. No substantial question of law as urged in
the Second Appeal is involved for a decision.
Second Appeal is dismissed in limine.
Interlocutory Application No.1998 of 2009 shall stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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R.S.A. NO.900 OF 2009
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J U D G M E N T
18TH NOVEMBER, 2009