IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 489 of 2007()
1. K.SUBRAHMANYA BHAT, AGED 48 YEARS,
... Petitioner
Vs
1. PERUNTHATTA NARAYANI AMMA, AGED 70 YEARS
... Respondent
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/08/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 489 OF 2007
===========================
Dated this the 2nd day of July, 2007
JUDGMENT
Plaintiff in O.S.265/2001 on the file of
Munsiff Court, Kasaragod is the appellant.
Defendant is the respondent. Appellant instituted
the suit seeking a decree for declaration that he
is the absolute owner of the plaint schedule
property and Ext.B5 sale deed dated 3.6.1995 is
null and void. Case of the appellant was that
plaint schedule property and other properties were
originally in the possession of Krishna Bhat and
Krishna Bhat and his children partitioned the
property under Ext.A2 partition deed on 17.11.1965
and plaint schedule property along with other
properties was allotted to Sankaranarayana Bhat and
Sankaranarayana Bhat transferred the property in
favour of Venkitakrishna Ganaraja, Keshava,
Shivakumara, Udaneswara and Manjunatha to
Venkitakrishna and others in 1976 as per document
R.S.A.489/2007 2
No.649/1976 and thereafter Venkitakrishna sold
plaint A schedule property to the appellant under
Ext.A8 sale deed dated 11.9.1978 and appellant is
thus the absolute owner in possession of the
plaint A schedule property and respondent has no
manner of right over the road which is a private
road which absolutely belong to the appellant and
respondent or Venkitakrishna has no title or
possession of the property. It was alleged that as
per Ext.B5 it is seen that property was purchased
from B.M.Abdulla and four others as per document
dated 3.6.1995 and Abdulla got the property from
Moosa as per sale deed dated 13.7.1987 and Moosa
had no right over the property and respondent did
not derive any right over the plaint A schedule
property under the said document and therefore
appellant is entitled to the declaration that he is
the absolute owner of the plaint A schedule
R.S.A.489/2007 3
property and Ext.B5 is null and void. Respondent
filed a written statement denying the right claimed
by the appellant. It was contended that plaint A
schedule property was never in the possession of
Venkitakrishna and appellant did not derive any
title or possession of the property under Ext.A8
sale deed and Ext.A8 is not binding on the plaint
schedule property or respondent and the property
was purchased by him from Abdulla and others as per
sale deed dated 3.6.1985 and the vendor Abdulla
purchased it from Moosa as per document dated
13.3.1987 and appellant is not entitled to the
decree sought for.
2. Learned Munsiff on the evidence of Pws.1
and 2, DW1 and Exts.A1 to A8 and B1 to B8 found
that appellant did not establish his title. It
was found that Ext.A8 under which appellant had
claimed title to the property, was registered in
R.S.A.489/2007 4
Sub Registrar’s office, Badiadka when plaint A
schedule falls within the jurisdiction of Sub
Registrar Office, Kasaragod. Though it was
contended that jurisdiction over the plaint A
schedule property was originally with Badiadka Sub
Registrar’s office, no evidence was adduced in
support of the claim. Relying on the decision of
the High Court of Nagpur (A.I.R. 1946 337) it was
held that appellant did not derive any title under
Ext.A1. Learned Munsiff on appreciation of evidence
found that when examined as PW1, appellant admitted
that he sold the property in 2002 to one Madhavan
Nair. On the evidence it was found that appellant
did not establish the title and therefore he is
not entitled to the decree sought for. Appellant
challenged the decree and judgment before Sub
Court, Kasaragod in A.S.25/2003. Learned Sub Judge
on reappreciation of evidence found that appellant
R.S.A.489/2007 5
did not establish the title and dismissed the
appeal. It is challenged in the second appeal.
3. Learned counsel appearing for appellant
was heard.
4. The argument of learned counsel appearing
for appellant is that Ext.A5 encumbrance
certificate shows the details of the previous
transfer in respect of the property and therefore
it establishes that the property was originally
within the jurisdiction of Badiadka Sub Registrar’s
office and therefore finding of the courts below
that Ext.A8 is not valid is not sustainable.
Learned counsel also argued that the right obtained
by respondent is from Moosa who claim that the
property transferred thereunder is a Government
land and there is no evidence to prove that it is a
Government land and even if it is a Government land
Moosa could not have any right to tranfer the
R.S.A.489/2007 6
property in favour of Abdulla and so respondent is
not entitled to claim title to the property. It
was further contended that Ext.A2 partition deed
the property divided thereunder originally
belonged to Krishna Bhat which devolved on
Sankaranarayana Bhat and were divided and
thereafter the property was purchased by the
appellant and courts below should have upheld the
title of the appellant finding that respondent has
no title under Ext.B5.
5. On hearing learned counsel for appellant,
I do not find any substantial question of law
involved in the appeal.
6. Appellant is setting up title to the
plaint schedule property under Ext.A8 sale deed.
Respondent contended that the property covered
under Ext.A8 does not fall under Badiadka Sub
Registrar’s Office and but within the jurisdiction
R.S.A.489/2007 7
of Sub Registrar’s Office, Kasaragod and hence
under Ext.A8 appellant did not derive any right on
the document is invalid. It was accepted by courts
below. The argument of learned counsel is that
Ext.A5 establish that the property was originally
within the jurisdiction of Badiadka Sub Registrar’s
Office and it was subsequently transferred to Sub
Registrar’s office, Kasaragod. The trial court and
the first appellate court considered this aspect
and found that absolutely no evidence was adduced
to prove that transfer and if the case of the
appellant that the property was origingally
included within the jurisdiction of Sub
Registrar’s office, Badiadka and was subsequently
transferred to Sub Registrar’s Office kasaragod,
the order transferring the jurisdiction could have
been produced. For the failure to prove that
aspect the case of the respondent that Badiadka
R.S.A.489/2007 8
Sub Registrar’s office has no jurisdiction to
register a document in respect of properties
falling under Sub Registrar’s office, Kasaragod
was upheld. I do not find any reason to interfere
with that finding of fact, in the absence of any
other acceptable evidence, which could have been
adduced by the appellant.
7. When the appellant is setting up title and
seeking a decree for declaration of the title he is
not entitled to a decree either on the weakness of
the respondent’s case or on the failure of the
respondent to establish her title. Appellant has
to establish the title. Courts below on the
evidence found that appellant has no title. Even
if Ext.A8 is valid, unless the title of the
assignor of Ext.A8 is established by producing the
previous basic title deeds, the title cannot be
upheld. Learned Munsiff and learned Sub Judge on
R.S.A.489/2007 9
appreciation of evidence held that appellant did
not establish the same. That factual finding cannot
be interfered . As no substantial question of law
is involved in the appeal, appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006