Sherifumma And Another vs Sri.Udyavara Daivangalu Temple
2022 Latest Caselaw 9440 Ker

                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

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

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

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

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

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

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

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

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