High Court Kerala High Court

Abdul Samad vs Pathumma on 6 October, 2009

Kerala High Court
Abdul Samad vs Pathumma on 6 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 983 of 2008()


1. ABDUL SAMAD, S/O. ABDURAHIMAN
                      ...  Petitioner
2. ABDUL LATHEEF DO.....DO.....
3. ABDUL GAFFOOR, DO...DO....
4. LIYAKKATHALI, DO....DO....
5. AYISHUMMA,  DO....DO....
6. NOORJAHAR DO....DO.....
7. BRIYA HAJJUMMA,W/O. ABDURAHIMAN

                        Vs



1. PATHUMMA, D/O. KIZHAKKE PEEDIKAYIL
                       ...       Respondent

                For Petitioner  :SRI.T.KRISHNANUNNI (SR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :06/10/2009

 O R D E R
                        THOMAS P.JOSEPH, J.
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                          R.S.A. NO.983 of 2008
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                   Dated this the 6th day of October, 2009


                              J U D G M E N T

———————

Appellants-defendants who were unsuccessful in the courts

below in defending the suit for decree for prohibitory injunction based

on possession have preferred this Second Appeal urging as a

substantial question of law whether in the absence of measurement of

disputed property with reference to title deeds and declaration of title,

courts below were legally correct in finding possession of the disputed

property in favour of respondent?

2. Property schedule in the plaint is Kaikkottu Thodika Nilam

and Tank which according to the respondent originally belonged to

Venkita Hassan, father of plaintiff No.1 as per Ext.A1, partition deed

No.1300/1969 and on his death it devolved on his wife and children

(respondent, plaintiff No.1 and others). Right of other legal heirs were

purchased by respondent and plaintiff No.1 as per Ext.A2, document

No.1737/1976. Respondent and plaintiff No.1 claimed that they are in

possession of the suit property and produced Ext.A3 series, receipts for

payment of revenue. During the pendency of the suit plaintiff No.1

died. Appellants contended that respondent, plaintiff No.1 or their

R.S.A. No.983 of 2008

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predecessor had no right, right and interest over the property and that

the Tank referred to in the plaint schedule is situated in R.S. No.25/3

and not R.S. No.19/1 in which respondent and deceased plaintiff No.1

claiming right, title, interest and possession. They contended that the

Tank and property on its north, south and west belonged to Alikutthy,

their brother as per document No.1292 of 1958 and partition deed

No.2760 of 1964. Tank with the land was allotted to the share of

appellants. Learned munsiff observed that there is no payment of

court fee under Section 27(a) of the Court Fees Act and hence an

enquiry into title is not required. Learned munsiff found that

respondent and deceased plaintiff No.1 were in possession of the suit

property on the date of suit and granted decree as prayed for. First

appellate court has concurred with the finding of learned munsiff.

Contention of learned Senior counsel is that in a case of this nature

principle that possession follows title has to be adopted. In this case

trial court found on evidence that possession of suit property which is

a Tank is with the respondent and deceased plaintiff No.1. Exhibit A1

is the partition deed No.1300 of 1969 as per which according to the

respondent and deceased plaintiff No.1, their predecessor got title

and possession over the suit property. In Ext.A1, A schedule is

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allotted to the predecessor of respondent and deceased plaintiff No.1

and property is described as Kaikkottu Thodika Nilam, Tank and other

improvements. It is said to be in 52 cents in R.S. No.19/1 lying in

two taks. Same description is given in Ext.A2, document in favour of

respondent and deceased plaintiff No.1 executed by other legal heirs

of Venkata Hassan. Item No.4 in Exhibit A2 is the suit property.

Description in the plaint schedule is in accordance with Exts.A1 and

A2. Western boundary of suit property is Nariyan Chola Parambu

which is now in the possession of appellants. Commissioner found that

the disputed Tank is situated in Kaikkottu Thodika Nilam and that

Nariyan Chola Parambu which admittedly belong to appellants is

situated on a higher level and between two properties, there is a ridge

having sufficient width which is used by the public. Commissioner

also found another Tank in the suit property but trial court found that it

is not a Tank but only a small pit. Further finding entered by the

courts below on evidence is that in the Paramba belonging to

appellants they have constructed a Tank which is 10 metres away

from the disputed Tank in the suit property. Courts below observed

that if really appellants were using the disputed Tank there was no

necessity for them to construct a separate Tank which is 10 metres

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away from the disputed Tank. Courts below also found that the

physical boundary separating the property belonging to respondent

and deceased plaintiff No.1 and Nariyan Chola Pramba belonging to

appellants is the ridge. It is true that Commissioner noticed a canal

towards east of the disputed Tank but appellants have no case that the

said canal is their eastern boundary. It has come in evidence that in

the documents of title of appellants (Exts.B1 to B3) there is no

mention about the Tank. On the other hand, Exts.A1 and A2 relied on

by respondent and deceased plaintiff No.1 refer to the Kaikkottu

Thodika Nilam and Tank. Suit property is Nilam as seen from the

report of Commissioner. As per Exts.B1 to B3, property of appellants is

“Paramba”. It is in the above circumstances that trial court found that

possession of the suit property is with respondent and deceased

plaintiff No.1 as on the date of suit. First appellate court concurred

with that finding after consideration of the evidence. Finding of

courts below rests on a proper appreciation of the evidence on record.

This Court can interfere with the finding of fact entered by the first

appellate court which concurred with the finding of trial court only

when the finding is not supported by any evidence or the finding is

perverse. Neither of that situation arises in this case. As such the

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substantial question of law raised by appellants do not really arise for

consideration. Second Appeal is without merit and it is only to be

dismissed.

Second Appeal is dismissed in limine.

THOMAS P.JOSEPH, JUDGE.

vsv