IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 959 of 2007()
1. ARAYAPRATH KHADEEJA UMMA,
... Petitioner
2. ABDUL SALAM, AGED 56 YEARS, THROUGH
3. SUBAIDA,D/O.KHADEEJA UMMA,AGED 48 YEARS
4. ARAYAPATH KUNHAMINA,
5. ARAYAPATH ABOOBACKER,
6. ARAYAPATH HAIRUNEESSA,
7. ARAYAPATH JAMEELA,
8. ARAYAPATH ABDUL JABBAR
Vs
1. CHARUVILA PUTHAN VEETTIL K.K.NAKULAN
... Respondent
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/01/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 959 OF 2007
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DATED THIS THE 7TH DAY OF JANUARY, 2008
JUDGMENT
Plaintiffs in O.S.277 of 1991 on the file of Munsiff Court,
Payyannur are the appellants. Defendants are the respondents.
Appellants originally instituted the suit seeking a decree for
permanent prohibitory injunction. Subsequently plaint was
amended. Plaint schedule property which was originally 6 acres
was subsequently enlarged to 9 acres and 68 cents. A decree for
declaration of title and recovery of possession was also sought
for. Appellants contended that a total extent of 33 acres was
obtained by Arayaprath Ayisumma under Ext.A1 sale deed dated
9.8.1926 and on the death of Ayisumma the property devolved on
the thavazhi of first appellant, which was partitioned under
Ext.A3 partition deed in 1989, whereunder properties shown as
schedule A, B, D and E were alloted to the appellants and C
schedule property having an extent of 4 acres was alloted to
A.Muhammed Sali. It was contended that subsequently under
Ext.A4 gift deed executed on 29.12.1989, first appellant
transferred his right in favour of appellants 5 to 8 and appellants
have been in possession and enjoyment of the plaint schedule
RSA 959/2007 2
property and respondents have no right or title to the property
and they are attempting to trespass into the property. So they
are to be restrained by a permanent prohibitory injunction from
trespassing into the plaint schedule property. After the
Commissioner submitted the report showing the extent of the
property as 9.68 acres, plaint was amended contending that plot
IJKL shown by the Commissioner is the property obtained under
Ext.A1 sale deed and plot ABCD shown by the Commissioner is
the plaint schedule property which is covered under Ext.A1
document and a portion of that property which is C schedule to
the partition deed, which was alloted to Muhammed Sali, is also
part of plot ABCD and Muhammed Sali is the power of attorney
holder of second appellant and he has no dispute with regard to
that and has no objection in getting more extent of land than
what is shown in the document, to the appellants. It was
contended that the disputed plot B which measures 5 acres and 7
cents belongs to the appellants. Appellants sought a decree for
declaration of title to plaint B schedule property as part of the
property covered under Ext.A1 and A2. In case it is found that it
is in the possession of the respondents, appellants sought a
decree for recovery of possession on the strength of their title.
RSA 959/2007 3
Respondents resisted the suit contending that the property
originally belonged to Vasudevan Nambissan and as per
Kuzhikkanam deed of 9.9.1960, it was obtained by Kunhikannan
who transferred it in favour of Narayani Amma and thereafter
respondent obtained the property as per registered sale deed
dated 2.5.1969 and plot B marked by the Commissioner is that
property and he also obtained purchase certificate from the Land
Tribunal as per order in O.A.308 of 1977 and appellants have no
right or possession to that property and therefore they are not
entitled to the decree sought for.
2. Learned Munsiff, on the evidence of PW1, DW1,
Exts.A1 to A10, B1 to B4, C1 to C6 and X1 series and X2 series,
dismissed the suit holding that appellants did not establish their
title or possession to plaint B schedule property. Learned
Munsiff also found that the property was also not properly
identified. Appellants challenged the judgment before Sub
Court, Payyannur in A.S.21 of 1998. Learned Sub Judge, on
reappreciation of evidence, confirmed the findings of learned
Munsiff and dismissed the appeal. It is challenged in the second
appeal.
3. Learned counsel appearing for appellants was heard.
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The argument of the learned counsel is that courts below did not
properly appreciate the evidence and should have found that
under Ext.A1, 33 acres was obtained by Ayisumma and only part
of that property was obtained by thavazhi of first appellant and
though in 1963 properties was divided under a registered
partition deed, it was not produced. It was argued that property
divided under Ext.A3 partition deed is the property alloted to
thavazhi of first appellant under 1963 partition and the property
within the boundaries shown therein were divided as schedules
A to E and schedules A, B, D and E were alloted to appellants 1
to 4 and C schedule property to Muhammed Sali and though the
extent of the property shown in 1963 document is only 6 acres,
within the boundary, actual extent of the property is 10 acres
which was divided under Ext.A3 partition deed and therefore
courts below should have found that appellants have title to
plaint B schedule property which is part of the property covered
under Ext.A3 partition deed and it was originally obtained under
Ext.A1 sale deed and therefore finding of courts below that
appellants have no title or possession to plaint B schedule
property is not sustainable. Learned counsel also argued that
even if it is to be found that plaint schedule property obtained by
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appellants under Ext.A3 and A4 were not properly identified,
appellants may not be denied their right to claim that property in
appropriate proceedings.
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. Though the
suit was originally one for injunction, subsequently it was
amended and relief of declaration of title in respect of plaint B
schedule property and alternatively recovery of possession of
plaint C schedule property, in case it is found that respondent is
in possession of the property were sought. Appellants can
succeed in their claim only on establishing that plaint B schedule
property is part of the property obtained under Ext.A1 and
subsequently divided under Ext.A3 partition deed. Admittedly
the total extent of the property obtained under Ext.A1 is 33
acres. Though appellants claimed title under Ext.A3 partition
deed, it is admitted at the time of evidence that the property
obtained under Ext.A1 was divided under registered partition
deed 1409/1963. When the property was already divided under
a registered partition deed of 1963, it cannot thereafter be
divided under Ext.A3 in 1989. The argument of the learned
counsel is that the property divided under Ext.A3 is the property
RSA 959/2007 6
obtained by the thavazhi of first appellant under 1963 partition
deed. But 1963 partition deed was not produced either before
the trial court or first appellate court. Whatever it be, it is
admitted case that property obtained by the thavazhi of first
appellant under 1963 partition deed is only 6 acres. It was
admitted by PW1 that as item No.5 of schedule C of that
partition deed, 3 acres each in R.S.105 and 110 were obtained by
the thavazhy. But suppresssing the fact tht property obtained by
thavazhi is only 6 acres, in 1989 under Ext.A3, properties were
divided into five shares and plots A, B, D and E were alloted to
appellants 1 to 4 being a total extent of 6.44 acres. At the same
time, as C schedule property, 4 acres was alloted to Muhammed
Sali. The total extent divided is 10.44 acres. Plaint schedule
property as originally stood was only 6.74 acres being plots A, B,
D and E of Ext.A3. It is after filing of report by the
Commissioner, plaint was amended enhancing the extent of
plaint schedule property to 9.68 acres. Evidently it is inclusive
of C schedule property covered under Ext.A3. What was
claimed by appellants in the amended plaint is that Muhammed
Sali who is also the power of attorney holder of second appellant
and therefore a decree may be granted. When even according
RSA 959/2007 7
to appellants, C schedule property was alloted to Muhammed
Sali and appellants to whom only properties covered under
schedules A, B,D and E were alloted, cannot claim title to C
schedule property therein. Appellants cannot claim title to the
C schedule property of Ext.A3. Therefore for that sole reason,
appellants are to be non-suited. Learned Munsiff and learned
Sub Judge properly appreciated the evidence and rightly found
that appellants did not establish their title to plaint B schedule
property. Courts below also found that appellants did not
properly identify the property obtained by them, and covered
under Ext.A1 and thereafter divided under 1963 partition deed
and later under 1989 partition deed. In such circumstances, I do
not find any reason to interfere with the decree granted by
courts below.
Appeal is dismissed in limine. Muhammed Sali to whom C
schedule property in Ext.A3 was alloted being not a party to the
suit, the findings in this suit will not be binding on him.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-