IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 57 of 2007()
1. MOHAMED @ BAPPU, AGED 63 YEARS,
... Petitioner
Vs
1. ALAVI, AGED 50 YEARS,
... Respondent
2. PATHUMMA, AGED 58 YEARS,
3. THECHIYODAN MOIDEEN, AGED 61 YEARS,
4. UMMUSALMA, AGED 38 YEARS,
5. HASEENA, AGED 28 YEARS,
For Petitioner :SRI.P.M.KUNJIMOIDEENKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/04/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 57 OF 2007
............................................
DATED THIS THE 4TH DAY OF APRIL, 2007
JUDGMENT
Defendant in O.S.6 of 1997 on the file of Munsiff Court,
Manjeri is the appellant. Respondents are the plaintiffs. The
suit was originally filed by first respondent and respondents 2
to 6 were subsequently impleaded as assignees of the first
plaintiff. The suit was filed for permanent prohibitory injunction
contending that plaint A schedule property originally belonged in
jenmom to Kannoor Puthan madam and in 1950 first respondent
obtained plaint A schedule property on an oral lease and has
been in possession of the property as a tenant and while so,
under Ext.A1 assignment deed dated 9.2.1973, he sold plaint B
schedule property a portion of the A schedule property in favour
of appellant, his son and retained plaint C schedule property, the
remaining property and later as per Ext.A4 order in S.M.177 of
1994 he purchased the jenmom right and obtained Ext.A2
purchase certificate and he has been in possession of the
property and appellant is attempting to trespass into the
property and he has no right to do so and therefore he is entitled
to get a decree for permanent prohibitory injunction. Appellant
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in the written statement admitted the assignment under Ext.A1
but contended that plaint C schedule property did not belong to
first respondent and he has not been in possession of the
property and it was in the possession of the appellant as per
lease before 1964 and he has purchased jenmom right in respect
of the said property in O.A.1363 of 1976 and also jenmom right
in respect of plaint B schedule property as per order in SM 180
of 1996 and obtained Exts.B1 and B2 purchase certificates and is
in possession of plaint C schedule property and therefore
respondents are not entitled to the decree sought for.
2. Learned Munsiff, on the evidence of PW1 and DW1 and
Exts.A1 to A6 and B1 to B4 and C1 and C2, upheld the case of
respondents that plaint C schedule property forms part of plaint
A schedule property and after assigning plaint B schedule
property, first respondent has been in possession of plaint C
schedule property and appellant has no right or possession over
the same and therefore respondents are entitled to the decree
for injunction sought for. Appellant challenged the decree and
judgment before Sub Court, Manjeri in A.S.54 of 2005. Learned
Sub Judge, on re-appreciation of evidence, confirmed the finding
of learned Munsiff and dismissed the appeal. It is challenged in
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the second appeal.
3. Learned counsel appearing for appellant was heard.
The argument of learned counsel was that there is no evidence
to prove that first respondent was tenant of the plaint C schedule
property and when Ext.A2 and B2 purchase certificates were
produced, courts below should have entered a definite finding as
to the validity of Ext.A2 or B2 and without deciding that
question, should not have granted the decree sought for and on
the evidence courts below should not have granted the decree in
favour of respondents and therefore the concurrent decree and
judgment are unsustainable.
4. On hearing learned counsel appearing for appellant, I do
not find any substantial question of law involved in the appeal.
The suit was only for injunction. The question to be decided is
the possession of respondents on the date of institution of the
suit. The appellant is none other than the son of original plaintiff,
first respondent. Appellant is also admitting his right over plaint
B schedule property derived from the first respondent under
Ext.A1 sale deed executed by him. Under Ext.A1 only 56 cents
was obtained by the appellant. The courts below, relying on
Ext.A1, accepted the case of respondents that the entire property
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belonging to first respondent was not transferred in favour of the
appellant. What was contended by appellant was that first
respondent was having only plaint B schedule property in his
possession and that was transferred in his favour under Ext.A1
and thereafter first respondent had no property in his possession
and therefore first respondent could not have purchased the
jenmom right in respect of plaint C schedule property and courts
below should have found that Ext.A2 is not valid especially when
Ext.B2 purchase certificate was obtained by appellant in respect
of plaint C schedule property. Case of appellant could have been
accepted if Ext.A1 disclosed that the entire property belonging to
first respondent was transferred in favour of appellant under the
document. On the other hand, Ext.A1 establishes that
remaining property was left with first respondent after
assigning plaint B schedule property. The southern boundary
shown in Ext.A1 is the remaining property of first respondent,
establishing that only the northern portion of the property
belonging to first respondent was transferred under Ext.A1. If
the case of appellant about an independent lease in his favour
and possession of the plaint C schedule property thereunder is
true, southern boundary would have been shown as the
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leasehold property of the appellant or at least the property in the
possession of the appellant. Instead, what was stated as
southern boundary in Ext.A1 is the remaining property belonging
to the first respondent. Courts below rightly appreciated the
said fact and found that after assigning plaint B schedule
property, first respondent retained with him portion of the
property obtained by him on lease. If that be so, first respondent
is entitled to purchase the jenmom right from the Land Tribunal,
as appellant has no case that his father was not a lessee under
the jenmi. In fact after Ext.A1 assignment deed executed by first
respondent in his favour and banking upon the lease originally
obtained first respondent appellant obtained the purchase
certificate in respect of plaint B schedule property evidenced by
Ext.B1. It is that leasehold right over which the jenmom right
was purchased by first respondent under Ext.A2 pursuant to
Ext.A4 order. Ext.B2 purchase certificate was obtained by the
appellant under Ext.A5 order, one year subsequent to Ext.A2
purchase certificate issued in favour of the first respondent. If
first respondent is a cultivating tenant, as he should be, in view
of the purchase certificate obtained by first appellant over plaint
B schedule property and the jenmom right which vested with the
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Government as on 1.1.1970 was assigned in favour of the first
respondent as per Ext.A4 order in SMP 197 of 1994 and Ext.A2
purchase certificate, to first respondent, nothing was left with
the Government to be assigned in favour of appellant under
Ext.A5 order. Therefore appellant cannot claim any right by
virtue of Ext.B2 purchase certificate and therefore the case built
up on Ext.B2 was rightly not accepted by courts below. I find no
merit in the appeal. It is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-