Abdul Khadar vs Hussain Rawther
2022 Latest Caselaw 10837 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA

           THURSDAY, THE 27TH DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944

                               RSA NO. 710 OF 2019

         AGAINST THE ORDER/JUDGMENT IN AS 1/2019 OF SUB COURT, ALAPPUZHA

                     OS 152/2011 OF MUNSIFF COURT,CHENGANNUR

APPELLANTS/APPELLANT/PLAINTIFF/COUNTERCLAIM DEFENDANT:

             ABDUL KHADAR
             AGED 66 YEARS
             S/O THARAKAN MUSTHAFFA, MODI MELATHIL, PUNTHALA ERAM, VENMONY,
             CHENGANNUR, ALAPPUZHA
             BY ADV P.VINODKUMAR


RESPONDENTS/RESPONDENTS/DEFENDANTS/COUNTERCLAIM PLAINTIFFS:

     1       HUSSAIN RAWTHER
             AGED 66 YEARS

S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 2 HABEEB AGED 69 YEARS S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 3 SHAJAHAN(DIED) AGED 56 YEARS S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 4 SALEENA BEEVI AGED 49 YEARS W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 5 RASHID SHAJAHAN (MINOR) AGED 15 YEARS S/O. LATE SHAJAHAN, REP BY HIS MOTHER SALEENABEEVI, AGED 49 YRS, W/O LATE SHAJAHAN, KUTTIKIZHAKKETHIL,VENMONY P.O., CHENGANNUR, ALAPPUZHA - 689 509 BY ADV SRI.N.ASHOK KUMAR

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022,

ALONG WITH RSA.720/2019, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

THURSDAY, THE 27TH DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944

RSA NO. 720 OF 2019

AGAINST THE ORDER/JUDGMENT IN AS 2/2019 OF SUB COURT, ALAPPUZHA

OS 152/2011 OF MUNSIFF COURT,CHENGANNUR

APPELLANTS/APPELLANTS/PLAINTIFFS/COUNTERCLAIM DEFENDANTS:

     1        ABDUL KHADAR
              AGED 66 YEARS

S/O. THARAKAN MUSTHAFFA, MODI MELATHIL, PUNTHALA ERAM, VENMONY, CHENGANNUR, ALAPPUZHA.

     2        BASHEER RAVUTHER
              AGED 60 YEARS

S/O. MUHAMMED MUSTHAFA, PALATHUMPATT THEKKETHIL, PUNTHALA ERAM, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, 3 ASHARAFUDEEN, AGED 33 YEARS S/O. MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAM MURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, BY ADV P.VINODKUMAR

RESPONDENTS/RESPONDENTS/DEFENDANTS/COUNTERCLAIM PLAINTIFFS:

1 HUSSAIN RAWTHER AGED 66 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

2 HABEEB, AGED 69 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

3 SHAJAHAN(DIED) AGED 56 YEARS, S/O. MUSTHAFA KUNJU RAWTHER, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

4 SALEENA BEEVI, AGED 49 YEARS, W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

5 RASHID SHAJAHAN(MINOR) AGED 15, S/O. LATE SHAJAHAN, REP. BY HIS MOTHER SALEENA BEEVI, AGED 49 YEARS, W/O. LATE SHAJAHAN, KUTTIKIZHAKKETHIL, VENMONY P.O, CHENGANNUR, ALAPPUZHA, PIN-689509.

6 JAMEELA, AGED 60 YEARS, W/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

7 HARIS, AGED 44 YERAS, S/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN- 689509.

8 SUJA, AGED 42 YERAS, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN- 689509.

9 RAJEENA AGED 40 YERAS, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN- 689509.

10 SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

11 SHAHIN AGED 8 YEARS,(MINOR), REPRESENTED BY SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

12 NAVAS, AGED 6 YEARS,(MINOR), REPRESENTED BY SHAHIDA, AGED 29 YEARS, W/O. LATE NAZER, D/O. LATE MAJEED RAVUTHER, KOCHUPURA THEKKETHIL, PUNTHALA ERAMMURI, VENMONY, CHENGANNUR, ALAPPUZHA DISTRICT, PIN-689509.

BY ADV SRI.N.ASHOK KUMAR

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022,

ALONG WITH RSA.710/2019, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING:

COMMON JUDGMENT [RSA Nos.710/2019 & 720/2019]

R.S.A.No.710/2019 has been directed against the judgment

and decree in A.S.No.1/2019 on the files of Subordinate Judge's

Court, Alappuzha, which arise out of the dismissal of the suit in

O.S.No.152/2011 on the file of Munsiff's Court, Chengannur and

R.S.A.No.720/2019 has been filed against the judgment and

decree in A.S.No.2/2019 on the files of Subordinate Judge's

Court, Alappuzha, which in turn arise out of the decree in

counter claim in O.S.No.152/2011 on the file of Munsiff's Court,

Chengannur.

2. O.S.No.152/2011 has been filed for a permanent

injunction. Plaintiff is the appellant in R.S.A.No.710/2019 and

first appellant in R.S.A.No.720/2019. (Parties would hereinafter

be referred as per their status before the trial court).

3. Plaint schedule item No.1 property belongs to the

paternal grandfather of the plaintiff having an extent of 4.2 Ares

comprised in survey No.559/19 and obtained by the grandfather

as per Partition Deed No.2989/1114 ME. As per thandaper it still

stands in the name of grandfather. Plaintiff's father died in the

year 1988 and after his death the property devolved upon the

plaintiff and is in his possession and enjoyment. Plaint schedule

item No.2 property is having an extent of 3.34 Ares comprised in

resurvey No.584/19-3 obtained by the plaintiff as per gift deed

No.2377/1981. Plaint schedule item Nos.1 and 2 properties are

lying contiguous. In the meanwhile, first defendant filed PLP

10/2009 before the Taluk Legal Service Committee, Chengannur

raising frivolous claims with respect to plaint schedule item No.1

property. During the pendency of that petition defendants along

with others trespassed into plaint schedule item No.1 property

and destroyed the tress and cultivation and caused a loss of

Rs.25,000/- to the plaintiff. Apprehending further trespass the

suit has been filed.

4. Defendants filed written statement with counterclaim

contending that plaint schedule item No.1 property was never

been under the possession of the plaintiff or his father. The name

of the plaintiff's father is Muhammed Musthafa and not

Tharakan Mustafa. It is denied that the plaintiff obtained the

plaint schedule item No.1 property as per partition deed No.

No.2989/1114 ME. Plaint schedule item No.1 property is

possessed by the first defendant. The defendant never

trespassed into plaint schedule item No.1 property. The property

having an extent of 14 cents comprised in old survey No.17/29B

was devolved upon the father of the defendant Sri. Mustafa

Kunju Rawther as per partition deed No.3792/1123 ME and after

his death it was under the possession and enjoyment of the first

defendant, out of that 14 cents, property having an extent of

1.35 Ares comprised in resurvey No.584/17 stood in the name of

the paternal grandfather of the defendants and it was included in

thandaper account TP 88. That property was subsequently

transferred to their father. The remaining extent of 4.20 Ares is

included in resurvey No.584/19 and shown in the thandaper

account 4208 of one Mr.Tharakan Mustafa though no such

person is in existence. On realising that, revenue authorities

rectified the mistake and the 4.20 Ares in resurvey No.584/19

was corrected in the name of the father of the defendants late

Mustafa Kunju Rawther in thandaper account 12207. There

existed an old mud ridge between plaint schedule item No.1

property and the remaining properties on its northern side but it

was damaged gradually due to rain and the defendants

approached the Taluk Office, Chengannur for fixing the

boundary and the surveyor laid the survey stone which was

removed by the plaintiffs and filed the suit.

5. Since the northern boundary of plaint schedule item

No.1 property has been demolished and plaintiff is making

attempt to trespass upon it counterclaim has been filed seeking

fixation of boundary and plaint schedule item No.1 property is

shown as counterclaim item No.1 property. The properties

having an extent of 17.10 Ares in resurvey No.584/19-2, 3, 4, 5

is shown as counterclaim item No.2 property.

6. Plaintiff subsequently amended the plaint stating that

Tharakan Mustafa is his paternal grandfather and not his father

and some corrections were also effected to the suit property.

Plaintiff filed written statement to the counterclaim raising

identical contentions as in the plaint.

7. PWs 1 and 2 examined and Exts.A1 to A3 marked from

the side of the plaintiffs. First defendant was examined as DW1

and Exts.B1 to B13 were marked from the side of the

defendants. Ext.C1 series were also marked.

8. After evaluating the facts, circumstances and evidence

adduced from both sides, the trial court dismissed the suit and

decreed the counterclaim. Against which, first appeals were

filed.

9. The first appellate court on re-appreciating the

evidence and facts and circumstances confirmed the dismissal of

the suit and grant of counterclaim by the trial court.

10. Having lost before the two forums plaintiff approaches

this Court in these Regular Second Appeals.

11. The plaintiff claims right and title upon the plaint

schedule properties based on Exts.A1 to A3 documents.

According to him, the plaint schedule properties are comprised

in survey No.17/29B of Venmoni village and defendants have no

right or possession over those properties.

12. Defendants on the other hand would contend that

plaintiff's predecessor has no right over the property comprised

in survey No.17/29B of Venmoni village and the plaint schedule

property described in the plaint is the property belonging to the

defendants as per Ext.B1 partition deed. Ext.A1 partition deed

would show that the plaintiff's predecessor Muhammad Mustafa

Rawther obtained right and title over the property comprised in

survey No.17/29 of Venmoni village and they have not been

allotted any property comprised in survey No.17/29B.

13. According to the learned counsel for the plaintiff,

without a prayer for recovery of possession fixation of boundary

sought is not maintainable in law.

14. Learned counsel for the defendants on the other hand

would contend that both trial court and first appellate court

appreciated the facts, circumstances and evidence in a correct

perspective and hence no interference is called for in these

second appeals. Defendants claim absolute right over the

counterclaim schedule property contending that his father

Mustafa Kunju Rawther was the absolute owner of the plaint

schedule item No.1 property as per Ext.B1 partition deed and

after his death first defendant is in possession of the said

property. As per Ext.B1 partition deed the defendant's father was

allotted properties comprised in resurvey No.20/1, 17/29B and

19/22. It is also provided that 14 cents of property comprised in

survey No.17/29B is allotted to the defendants father. The

specific case of 1st defendant is that out of that 14 cents, 1.35

Ares of property was included in resurvey No.584/17 found

entered in the name of his paternal grandfather. The remaining

extent of 4.20 Ares which is the disputed property was included

by mistake in resurvey no.584/19 and shown in the name of

Mr.Tharakan Mustafa as per TP No.4208. The defendants

produced Ext.B2 tax receipt to prove his possession over the

plaint schedule property which would show that he has been

paying tax with respect to 4.20 Ares in resurvey No.584/19 and

1.35 Ares in 584/17. Ext.B12 tax receipt produced from the side

of the defendants shows payment of tax in respect of plaint

schedule item No.1 property i.e the counterclaim item No.1

property and in that old survey number of the property is shown

as 17/29 B.

15. Ext.B1 title deed and revenue records clearly show

title and possession of counterclaim item No.1 property with the

defendants. It is also pertinent to note that during cross

examination plaintiff as PW1 stated that his father's name is

Tharakan Mustafa and party No.3 in Ext.A1 is his father and the

name of party No.3 in Ext.A1 is Muhammed Musthafa Rawther.

He has obtained item no.3 in Ext.A1 and as per the description

he has been allotted 43½ cents in item No.3 which is in old

survey No.17/29. He further categorically admitted that that

property as per resurvey 584/19-2, 19-3, 19-4, 19-5 in four

subdivisions having a total extent of 17.10 Ares. He further

admitted that 5.16 Ares of property in survey No.584/19-2 as per

TP 7589 has been mutated in the name of his brother Majeed

Rawther. Further he admitted that 3.54 Ares of property in

survey No.584-19-3 in TP 7590 has been mutated in his name

and Ext.A3 is the tax receipt produced by him in that regard.

Further he admitted that 5.87 Ares of property in survey No.584-

19-4 as per TP 7591 has been mutated in the name of his brother

Basheer Rawther i.e. as per Ext.B10. So also 2.53 Ares of

property comprised in survey No.584/19-5 as per TP 8520 is

standing in the name of his brother Asharafudden as per

Ext.B11. He further categorically admitted that 17.10 Ares in

survey No.584/19-2 to 4 has been obtained by the father as per

Ext.A1 partition deed. He also categorically admitted that

defendants' property is 4.20 Ares though further he pleaded

ignorance whether the defendants obtained the same as per the

document No.1123 ME. In this context, the learned counsel for

the defendants relies on Ext.B1 by which the defendant's father

obtained 4.20 Ares of property. Ext.B1 partition deed would

establish that 14 cents of property comprised in old survey

No.17/29 B was obtained by the father of the defendants

Sri.Mustafa Kunju Rawther and the specific case of the

defendants is that after the death of the father it is in his

possession and enjoyment and out of which 1.35 Ares in the

name of paternal grandfather of the defendants was included in

the TP 88 and that property was subsequently transferred in the

name of their father and the remaining extent of 4.20 Ares

available in the survey number is included in resurvey No.584/19

and is shown in the TP 4208 and the mistake crept in resurvey in

the name of Tharakan Mustafa was later corrected in the name

of defendant's father. So the property comprised in survey

No.17-29 B described in plaint item No.1 property is not

described in Ext.A1 partition deed whereas the property

comprised in survey No.17/29 B is covered by Ext.B1 partition

deed. Later, with the help of a Taluk Surveyor at the instance of

defendants the properties of the plaintiff and the defendants

were measured and boundary of the counterclaim schedule

properties have been demarcated as LKJ line. In that sketch, the

counterclaim property of 4 Ares 20 sq. mtrs in survey No.589/19

has been clearly demarcated.

16. Ext.A2 produced would show that gift deed has been

executed with respect to 2.80 Ares of property in favour of

plaintiff by the plaintiff's father's brother and it is described as

plaint item No.2. Property description in Ext.A2 will go to show

that devolution of the property to the donor is traced back to

Ext.A1 partition deed. In Ext.A1 partition deed plaintiff's father

is party No.3 and he has been allotted item No.3 in the partition

deed and the description of the property would show that

property allotted is 43½ cents in survey No.17/29. So also Ext.A2

is seen executed by the father's brother of plaintiff and not his

father as alleged in the plaint. So also in the description of

property survey number is shown as 17/29B. But no property

comprised in survey No.17/29B included in Ext.A1 partition

deed. Pleadings of the plaintiff and description of the property in

item Nos.1 and 2 are per se wrong. That would probabilise the

case of the defendants.

17. Counterclaim properties were demarcated and

counterclaim item No.1 property is the disputed property of 4.20

Ares which is the plaint item No.1 and counterclaim item No.2 is

the property of 17.10 Ares belonging to the plaintiffs which is

situated on the northern side of counterclaim item No.1 property.

In the commissioner's report and surveyor's plan counterclaim

item No.1 and counterclaim item No.2 properties have been

separately demarcated. As per which, the northern boundary of

counterclaim item No.1 property is shown as LKJ line and

counterclaim item No.1 is also demarcated as KJMNLK

and counterclaim item No.2 property has been demarcated as

EFGHIJKLOE. It has already been found that the plaintiffs could

not prove their right and title over plaint schedule item No.1

which is described in counterclaim item No.1 property. So the

courts below rightly found the northern boundary of

counterclaim item No.1 property as LKJ line and consequential

injunction also has been granted. Hence rightly the courts below

dismissed the suit and decreed the counterclaim.

18. On a meticulous evaluation of the judgments and

decree passed by the courts below, I am of the view that the

facts, circumstances and evidence adduced have been

appreciated in a correct perspective and I do not find any

substantial question of law emerging for consideration in both

appeals.

In the result, both appeals stand dismissed. No order as to

costs.

All pending Interlocutory Applications will stand closed.

Sd/-

                                                   M.R.ANITHA

SHG                                                   JUDGE