IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 281 of 1997()
1. KUNHAMMA
... Petitioner
Vs
1. SHREDHARAN
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.M.C.SEN (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/08/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.281 Of 1997
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Dated this the 16th day of August, 2010.
J U D G M E N T
The plaintiff in O.S.No.489 of 1993 on the file of the Munsiff
Court, Kasaragode, is the appellant. The appeal is directed
against the judgment and decree in A.S.No.104 of 1995 on the
file of the Sub Court, Kasaragode. Suit was filed for permanent
prohibitory injunction. The trial court held that the plaintiff being
miserably failed to establish possession over the plaint schedule
property is dis-entitled to any reliefs claimed in the suit. The suit
was dismissed. The lower appellate court confirmed the decree
and judgment. Parties hereinafter are referred to as the plaintiff
and defendant as arrayed in the suit.
2. Suit property is 4 acres of land in R.S.No.1/1A1 in
Karivedakam village of Kasaragode Taluk. Plaintiff claimed
absolute title, ownership and possession in respect of 4 acres of
land. Claim is based on Ext.A1 partition deed executed in the
year 1966 between the members of the plaintiff’s family. The
defendant claimed absolute title and ownership over 2 acres of
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land in the same survey number. According to him the eastern
portion of the plaint schedule property having an extent of 2
acres is in his possession and enjoyment. The case of the
defendant is that his father Chomanna Naika got 2 acres of land
in R.S.No.1/1A1 under lease arrangement and eversince the date
of lease deed his father was in possession of the eastern portion
of the suit property and that subsequent to the death of his
father the defendant and other family members are in possession
of the same. He denied the right, title and interest of the plaintiff
over the said extent. In support of the case of the defendant he
produced Ext.B1 registered kuzhikanam marupattam document
No.1966/1957 executed by two members of the plaintiff’s family
in the name of the defendant’s father Chomanna Naika. He also
produced the attested copy of the kuzhikanam deed executed in
favour of his father dated 9.9.1987. Ext.B2 is the document.
Ext.B3 series are the basic tax receipts evidencing payment of
revenue by the defendant in respect of the land in R.S.No.1/1A1.
3. The trial court appreciated the evidence adduced by
the parties. The parties adduced oral and documentary evidence.
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The trial court appreciated the documents namely, Ext.A1
partition deed, Ext.A2 series of tax receipts, Ext.B1 registered
kuzhikanam marupattam document, Ext.B2 attested copy of the
kuzhikanam deed, Ext.B3 series are the basic tax receipts, Ext.B4
registered copy of the sale deed etc. in support of the respective
contentions taken by the parties.
4. The defendant challenged the partition deed and
contended that the partition was executed by the plaintiff with an
ulterior motive to defeat the right held by the defendant and his
predecessors-in-interest. It is the case of the defendant that two
members of the plaintiff’s family who are also parties to the
partition deed executed the kuzhikanam marupattam in the year
1957 and gave possession of 2 acres of land in the suit survey
lying on the eastern portion of the plaint schedule property and
that eversince the date of lease deed the defendant’s
predecessor-in-interest Chomanna Naika came into possession of
the said extent of property and in continuation the defendant and
other legal heirs are in enjoyment of the property. The courts
below noted the fact that in Ext.A1 partition deed it is admitted
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that the all the leasehold properties were in the possession of the
tenants. PW1 conceded that there were two tenants under the
plaintiff when the properties were set apart to her share. Ext.B4
is the copy of the sale deed executed by the plaintiff in favour of
the a third party who was examined as DW2. As per Ext.B4
plaintiff assigned 1.55 acres in R.S.No.1/1A1 which is lying on
the eastern side of the suit property. As per the boundary shown
in Ext.B4, Chomanna Naika’s property is lying on the western
side of Ext.B4 property. DW2 testified before the court that he
purchased the property as per Ext.B4 which is lying on the
eastern side of the property possessed by Chomanna Naika. The
trial court as well as the appellate court believed the oral
evidence of DW2 and held that his evidence is acceptable and
was not discredited. Admittedly, DW2 is a vendee of the land
which originally belonged to the plaintiff which is lying in
R.S.No.1/1A1. The trial court relied on Exts.B1 to B4 and held
that the documents also probabilises the case of the defendant
that he is possession of an extent of 2 acres of land which is the
eastern portion of plaint A schedule property. The trial court also
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noticed the fact that the plaintiff failed to take out a commission
to show the nature and lie of the property and that the defendant
had taken steps to examine DW2 in order to prove that the
property lying on the west of his property is in the possession of
the defendant. Taking into account the oral and documentary
evidence the courts below held that the plaintiff failed to prove
that she is in possession of the entire property scheduled in the
plaint. The courts below also held that Exts.B1 to B3 strengthens
the case of the defendant that he is in possession of 2 acres of
land which is the eastern portion of the plaint A schedule
property. Since the fact finding courts concurrently found that
the plaintiff failed to prove that she is in possession of the entire
extent scheduled in the plaint, she is not entitled to the reliefs
claimed. The courts below positively found that the defendant is
in possession of two acres of land which is the eastern half of
plaint A schedule property. In view of the conclusions and
findings entered by the courts below based on the materials on
record, this Court finds that the same is not liable to be interfered
with in exercise of the jurisdiction under Section 100 of the Code
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of Civil Procedure. No question of law muchless any substantial
question of law arises for consideration in the appeal. The suit is
for injunction simplicitor. The question of title was not gone into
by the courts below. It is made clear that the question of
possession as on the date of suit alone is decided. Therefore the
question of title is left open.
In the result, the appeal fails and accordingly, dismissed.
No order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-