IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
RSA NO. 851 OF 2010
AGAINST THE JUDGMENT IN AS 73/2006 OF DISTRICT COURT,KASARAGOD
OS 88/2004 OF SUB COURT, KASARAGOD
-----
APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2:
1 SHERIFUMMA [DIED; LHs IMPLEADED]
2 ABDUL KARIM
NO.1 IS THE WIDOW OF
AHAMAD KUNHI, ALIAS KUNHIPPA BEARY NO.2, IS THE S/O.NO.1 BOTH
ARE RESIDING AT MADA, IN KUNJATHUR VILLAGE AND POST,
KASARAGOD TALUK.
* ADDL. APPELLANTS 3 TO 10
3 BEEFATHIMA, D/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 70 YEARS,
R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO, KASARAGOD
DISTRICT.
4 KHADEEJA
D/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 68 YEARS, R/A
SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO KASARAGOD
DISTRICT.
5 HALEEMMA, D/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 66 YEARS,
R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO KASARAGOD
DISTRICT.
6 AVVAMMA, D/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 64 YEARS,
R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO, KASARAGOD
DISTRICT.
7 ABDUL RAHIMAN, S/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 62
YEARS, R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO,
KASARAGOD DISTRICT.
RSA NO. 851 OF 2010 -2-
8 AISAMMA, D/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 59 YEARS,
R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO, KASARAGOD
DISTRICT.
9 ABOOBACKER, S/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 55 YEARS,
R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO, KASARAGOD
DISTRICT.
10 MOHAMMED RAFEEQ, S/O AHAMED KUNHI @ KUNHIPPA BEARY, AGED 52
YEARS, R/A SHERIFUMA MANZIL, MADA, KUNJATHUR VILLAGE & PO,
KASARAGOD DISTRICT.
* [THE LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL
APPELLANTS 3 TO 10 AS PER ORDER DATED 30.06.2021 IN IA 1/2021]
BY ADVS.
SRI.K.G.GOURI SANKAR RAI
SRI.SURESH KUMAR KODOTH
RESPONDENTS/APPELLANT/PLAINTIFF:
1 SRI.UDYAVARA DAIVANGALU TEMPLE
REPRESENTED BY THE EXECUTIVE OFFICER, H.SHAM BHAT,
S/O.H.HARIAPPA BHAT, KUNJATHUR, VILLAGE AND POST, KASARAGOD
TALUK AND DISTRICT.
2 ABDUL KHADER, S/O.MOIDEEN
KUNJATHUR VILLAGE P.O., KASARAGOD TALUK.
BY ADVS.
SRI.JAMSHEED HAFIZ
SRI.T.KRISHNAN UNNI SR.
SMT.T.D.RAJALAKSHMI
SRI.R.SREEHARI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.S.A. No.851 of 2010
= = = = = = = = = = = = = = = = = =
Dated this the 25th day of August, 2022
J U D G M E N T
Challenging the divergent decree in a suit for declaration of title, fixation of boundary and injunction, defendants 1 and 2 are in appeal.
2. The plaintiff is a temple. The temple claims ownership over 14 cents of property in Sy. No.68/1 of Kunjathur village, Kasaragod Taluk. From out of the said extent, one cent of property was leased on ground rent to one Amade Beary. Subsequently, as per Ext.A3 assignment deed of the year 1909, the said Amade Beary transferred the rights to Khalif Abdul Rahiman. In the year 1918, he transferred the property to one Hassankutty Beary under Ext.A4 assignment deed. Amade Beary claimed to have obtained another one cent of property in the year 1919 under Ext.A5 conveyance from third party. Hassankutty died. Under Ext.A6 release deed, the legal heirs released their rights in favour of R.S.A. No.851 of 2010 -: 2 :- one among them viz. Moideen Beary. As per Ext.A7 conveyance of the year 1932, he transferred the rights to Abdul Rahiman Beary. Though in the said document, the extent of property is mentioned as four cents, the same is not correct since it was only one cent that was granted on lease. The said Abdul Rahiman executed Ext.B1 assignment deed in the year 1957 in favour of Ahammed Beary describing the extent of property to be 14 cents. The said description is also not correct. Based on Ext.B1, he executed Ext.B2 assignment deed in the year 1959 in favour of the first defendant purporting to convey 14 cents. On this basis, defendants raise claim over the 14 cents belonging to the plaintiff. It is accordingly that the suit has been filed.
3. The defendants disputed the title of the plaintiff. They in turn claimed title over the property. It was further contended that the claim of the plaintiff is barred by res judicata by virtue of the dismissal of OS 255/1998 which was filed by the plaintiff against the R.S.A. No.851 of 2010 -: 3 :- defendants seeking a prohibitory injunction.
4. The trial court dismissed the suit finding that the plaintiff failed to prove title over the property. On appeal, the first appellate court reversed the decree and granted a decree in favour of the plaintiff on the basis of the identification of the property done in Ext.C2 plan. It was directed that the plan will form part of the decree. It is challenging the same that this Regular Second Appeal has been filed.
5. Heard Sri.Suresh Kumar Kodoth on behalf of the appellants and Sri.R.Sreehari on behalf of the respondents.
6. Ext.A1 is the revenue patta relating to the property. It shows that the property in dispute stands in the name of the temple as per Patta No.62. Ext.A2 is the "adangal" extract. It also indicates that the plaintiff is the pattadar of the property. Plaintiff was unable to produce any document of title relating to the property. The defendants claim title under Ext.B2 R.S.A. No.851 of 2010 -: 4 :- conveyance. The evidence on record is to be analysed to find out if the plaintiff has established title over the property in question.
7. As noticed, Ext.B2 is the title deed of the defendants. Title under Ext.B2 could be traced to various conveyances from Exts.A3 of the year 1909, A4 of the year 1918, A5 of the year 1919, A6 of the year 1920, A7 of the year 1932, B1 of the year 1957 and finally B2 in favour of the first defendant in the year 1959. Though under Ext.B2 an extent of 14 cents is claimed to be conveyed, the basic document viz. Ext.A3, and the subsequent conveyances, relate only to one cent of property. In Ext.A7, the conveyance that occurred in the year 1932, the extent is shown as four cents. In Ext.B2 a still larger extent of 14 cents is mentioned. None of the assignors or assignees after Ext.A3 could claim any extent in excess of what is conveyed under Ext.A3, the basic document. Therefore, the inclusion of a larger extent of four cents in Ext.A7 or an extent of 14 cents R.S.A. No.851 of 2010 -: 5 :- in Ext.B2, cannot confer any right under the said documents for anything in excess of one cent.
8. It is pertinent to note that, the right conveyed under Ext.A3 is only a leasehold right under the plaintiff. The subsequent transactions also acknowledge plaintiff to be the landlord. The defendant could only claim to be a lessee under the plaintiff in respect of the property covered under Ext.A3. Here, Ext.A8 proceedings in SM 832/1975 of the Land Tribunal, Cannanore is of significance. It was a suo motu proceeding in favour of the first defendant in respect of the present 14 cents. Going by Ext.A8, the first defendant herein claimed to be a cultivating tenant of the property under the plaintiff. Plaintiff is acknowledged to be the Jenmi of the property. Therein, the first defendant herein raised claim for an extent of 14 cents. He relied on Ext.B2 document of the year 1959. The said document was produced before the Land Tribunal and marked as Ext.A1. However, the Tribunal found that, R.S.A. No.851 of 2010 -: 6 :- under Ext.B1 document produced in the said proceedings, which is Ext.A4 in the present suit, the leasehold is only one cent. Accordingly, it was held that the first respondent herein is not entitled for assignment of 14 cents. The said order, Ext.A8, indicates two aspects; firstly, the acknowledgment by the first defendant herein that the plaintiff is the title holder of the property; and secondly, that the first defendant could claim right over only one cent of property.
9. Analysing the evidence in its entirety, the only conclusion that could be arrived at is that, the first defendant holds a leasehold right under the plaintiff for an extent of one cent of property.
10. Though the defendants argue that Ext.A8 proceedings are not binding on them since they were not put on notice and they were not aware of the said proceedings, they have not taken any efforts to disprove Ext.A8 or to challenge the same. Unless Ext.A8 proceedings of the Land Tribunal are disproved in the R.S.A. No.851 of 2010 -: 7 :- manner not known to law, the presumption under Section 114 of the Evidence Act runs with the document. In the absence of any material, it cannot be held that Ext.A8 was without notice or knowledge of the first defendant, and that it is not valid.
11. The learned counsel for the appellants would contend that, law is too well settled that the revenue records cannot confer title, and therefore, the reliance placed on Exts.A1 and A2 revenue records by the plaintiff to prove title, is no avail. There could be no challenge on the proposition of law urged by the plaintiff. However, on the rival plea between the parties what needs to be adjudicated is, whether the plaintiff has established a better title over the claim of the defendants. On the discussions as above, it could only be found that the plaintiff has established the better title over the claim of the defendants.
12. The learned counsel for the appellants raised yet another contention that the present suit is not R.S.A. No.851 of 2010 -: 8 :- maintainable in the light of the earlier suit, OS 255/1998, between the parties. It was a suit for prohibitory injunction filed by the present plaintiff against the present defendants. The suit was dismissed by the trial court. Though an appeal was filed, the same was later withdrawn. It is not in dispute that while withdrawing the appeal, liberty was granted to the plaintiff to file a separate suit. In the light of the permission granted by the court for filing a separate suit, the present suit is maintainable in terms of Order XXIII Rule 1(3) of the Code of Civil Procedure.
13. Now coming to the identity of the property, a Commissioner was appointed in the suit, assisted by surveyor, who located the property. Exts.C2 is the Commissioner's Report and Plan. The property in the possession of the defendants have been identified therein. It is on the said basis that the first appellate court has granted a decree. There is no challenge against the correctness of Ext.C2 plan. More R.S.A. No.851 of 2010 -: 9 :- over, there is no challenge against the identification done thereunder. It could only be held that, the identity of the property has been established by the plaintiff.
14. On the findings as above it is concluded that, the plaintiff has established a better title over the plaint schedule property, over the defendants. The declaration granted by the first appellate court is only against the defendants. The decree and judgment of the first appellate court suffers from no infirmity.
The Regular Second Appeal fails and is accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge