IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 417 of 2007(G)
1. MUHAMMED ISMAIL, S/O.MUITHALIF RAWTHER,
... Petitioner
2. KAMARUNNISA, D/O.ABDUL RAHIMAN AND
Vs
1. SHAHUL HAMEED,
... Respondent
2. MUHAMMED YUSUFF, S/O. DO IN DO. DO.
3. MUHAMMED HANEEFA, S/O. DO. IN DO. DO.
4. PYARIJAN, W/O.PEERMUHAMMED, MAMANIKALAM,
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :SRI.V.CHITAMBARESH(CAVEATOR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
R.S.A.NO. 417 OF 2007
===========================
Dated this the 8th day of June, 2007
JUDGMENT
Defendants 1 and 2 in O.S.329/1996 on the file
of Munsiff Court, Chittur are the appellants.
Respondents are legal heirs of deceased plaintiff.
Respondents instituted the suit seeking a decree
for mandatory injunction contending that plaint
schedule property along with the western six cents
was purchased by deceased plaintiff and his
brother Attar Shaik Rowther as per sale deed
No.821/55 of Kollengode Sub Registry and there was
an oral partition between the brother and the
western six cents was allotted to the plaintiff and
the eastern six cents to his brother and thereafter
plaintiff obtained the purchase certificate from
the Land Tribunal and there was a hut in the plaint
schedule property which was originally rented out
to his sister Hajiraha and she along with her
husband first defendant were residing therein and
RSA 417/07 2
after the death of sister on 15.10.1989 the husband
left the place and they started residing with his
son Kudaku and subsequently the hut was destroyed
due to fire. Second defendant is the daughter of
Hajiraha and first defendant the husband. First
defendant is conducting a butcher shop at Payyalor.
It was contended that for the convenience of his
business, on the request of defendants they were
permitted to put up a hut. Plaintiff constructed a
hut and they were allowed to occupy the same
without any rent as per a license and while they
were residing, defendants started construction of a
concrete building and laid a trench for the
foundation and they have no right to do so. The
licence has been terminated and plaintiff is
entitled to a decree for mandatory injunction
directing them to vacate the building with mesne
profits. The suit was subsequently amended after
impleading the third defendant, to claim a decree
for recovery of possession on the strength of
title. The defendants in their written statement
RSA 417/07 3
admitted the title of the plaintiff. It was
contended that the plaintiff had shifted his
residence to Vettilapotta and after plaintiff
purchased 12 cents in the year 1955 six cents of
the property on the western side is in the
possession and enjoyment of the father of the
second defendant as per a lease obtained from the
owner Petta @ Meenakshi and father of the second
defendant has tharikuthi right about 47 years
back and the father of the second defendant was
in possession of the property and the plaintiff
purchased 12 cents including the property in the
possession of the father of the second defendant
and they got the sale deed acknowledging
possession of the father of the second defendant
and there was no oral partition and father of the
second defendant got purchase certificate from the
Land Tribunal as per S.M.No.290/1979 of Kollengode
Land Tribunal and therefore plaintiff is not
entitled to the decree sought for.
2. Learned Munsiff framed necessary issues.
RSA 417/07 4
On the evidence of PW1 and 2 and Dws. 1 to 3 and
Exts.A1 to A6, B1 to B6, learned Munsiff granted a
decree directing defendants to put the plaintiff
in possession of the plaint schedule property.
They were directed to demolish the building now in
existence in the plaint schedule property.
Plaintiff was also granted a decree for
realisation of mesne profits at the rate of
Rs.200/- per annum. Defendants challenged the
decree and judgment before District Court, Palakkad
in A.S.64/2000. Learned Additional District Judge
on reappreciation of evidence confirmed the
findings of the learned Munsiff and dismissed the
appeal, which is challenged in this appeal.
3. Learned counsel appearing for appellants
and learned counsel appearing for respondents who
filed the caveat O.P were also heard.
4. The argument of the learned counsel
appearing for the appellants was that courts below
ignored Ext.B1 which is binding on the whole world
including even plaintiff and under section 72K of
RSA 417/07 5
Kerala Land Reforms Act it is a conclusive proof of
title and in the light of Ext.B1, courts below
should not have granted a decree for recovery of
possession. It was also argued that even if
plaintiffs were not impleaded in S.M.290/79, the
validity of Ext.B1 can be challenged only by
Meenakshi the landlord and not by the plaintiffs
and it is binding on them and hence courts below
should not have granted the decree sought for.
5. On hearing the counsel for appellants, I do
not find any substantial question of law involved
in the appeal. As rightly pointed out by the
learned counsel for the respondents, in the written
statement itself, there is a clear admission about
the title of the plaintiff. It was admitted that
the plaintiff and the brother purchased 12 cents
of the property including the plaint schedule
property. What was contended by the appellants was
only that even at that time father of the second
defendant was in possession of the property as a
lessee under Meenakshi and it was acknowledging
RSA 417/07 6
that right plaintiff purchased the property.
There was absolutely no evidence to prove the said
lease or the alleged acknowledgement by the
plaintiff. Though Ext.B1 purchase certificate was
produced and it was argued that under section 72K
of Kerala Land Reforms Act it is to be treated as
conclusive title to the property and as the
plaintiff did not file an appeal challenging
Ext.B1 or a suit seeking a decree to set aside
Ext.B1, Ext.B1 is binding on respondents, as
rightly found by courts below, it is proved that
Ext.B1 purchase certificate was obtained by the
appellants without impleading respondents or even
the alleged landlord in the party array. In such
circumstance, it is clear that Ext.B1 is a
fradulent purchase certificate obtained without
impleading the landlords. Hence there is no
necessity to set aside Ext.B1. When it is proved
that Ext.B1 purchase certificate was obtained
without the alleged landlord in the party array and
it is admitted by the appellants themselves in the
RSA 417/07 7
written statement that title to the property vests
with the plaintiff, Ext.B1 will not be binding on
the respondents. Therefore courts below rightly
granted a decree for recovery possession as sought
for. No substantial question of law is involved in
the appeal. Appeal is dismissed in limine.
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
