Kerala High Court

Chekkaminte Purakkal Hamza Alias ... vs Pattath Ashraf on 16 February, 2024

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
      THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA,
                          1945
                  RSA NO. 66 OF 2024
  AGAINST THE DECREE AND JUDGMENT IN OS 301/2012 OF
                 MUNSIFF COURT, TIRUR
DECREE & JUDGMENT IN AS 35/2016 OF ASSISTANT SESSIONS
                COURT/SUB COURT, TIRUR
APPELLANT/APPELLANT/PLAINTIFF:

        CHEKKAMINTE PURAKKAL HAMZA ALIAS KUNHIMON
        AGED 65 YEARS
        S/O MOHAMEDALI, PACHATTIRI AMSOM, PARAVANNA
        DESOM, VAKKAD PO, PIN-6761 TIRURTALUK,
        MALAPPURAM DISTRIC, PIN - 676105.

        BY ADVS.
        JAMSHEED HAFIZ
        K.K.NESNA
        T.S.SREEKUTTY


RESPONDENTS/RESPONDENTS/DEFENDANTS:

      1 PATTATH ASHRAF, AGED 44 YEARS
        S/O KADER, VAKKAD PO, TIRUR TALUK,
        MALAPPURAM DISTRICT, PIN - 676105.

      2 KUNHINTEPURAKKAL IBRAHIMKUTTY, AGED 54 YEARS
        S/O ASSAINARUTTY VAKKAD PO, TIRUR TALUK,
        MALAPPURAM DISTRICT, PIN - 676105.
 RSA.No.66/2024                     2


  3 PATTATHU SEHEER, AGED 44 YEARS,
    S/O KUNHALAVI VAKKAD PO, TIRUR TALUK,
    MALAPPURAM DISTRICT, PIN - 676105.

  4 THEKKEPURATH ABOOBACKER ALIAS KOYA
    S/O CHERIYA BAVA, VAKKAD PO, TIRUR TALUK,
    MALAPPURAM DISTRICT, PIN - 676105.

  5 CHERUPURAKKAL BASHEER, AGED 54 YEARS,
    S/O MOHAMEDALI, VAKKAD PO, TIRUR TALUK,
    MALAPPURAM DISTRIC, PIN - 676105.

  6 VAKKAD JUMA-ATH MOSQUE COMMITTEE PRESIDENT
    PATTATH USMAN, AGED 63 YEARS, S/O MUHAMMED
    ABDUL KHADER VAKKAD PO, TIRUR TALUK,
    MALAPPURAM DISTRICT, PIN - 676105.

  7 VAKKAD JUMA-ATH MOSQUE COMMITTEE SECRETARY
    ENINTE PURAKKAL MANAF, AGED 43 YEARS, S/O
    SAIDALAVI, PACHATTIRI AMSOM, PARAVANNA DESOM
    VAKKAD PO, TIRUR TALUK VAKKAD PO, MALAPPURAM
    DISTRICT, PIN - 676105.

                 BY ADVS.
                 M.DEVESH
                 T.KRISHNANUNNI (SR.)(K/280/1973)


         THIS       REGULAR    SECOND   APPEAL   HAVING     BEEN
FINALLY           HEARD   ON   06.02.2024,   THE    COURT     ON
16.02.2024 DELIVERED THE FOLLOWING:
 RSA.No.66/2024                    3




                                                      'C.R'
           A. BADHARUDEEN, J.
  ================================
              R.S.A No.66 of 2024
================================
    Dated this the 16th day of February, 2024


                         JUDGMENT

This appeal is at the instance of the plaintiff in

O.S.No.301/2012 on the files of Munsiff Court, Tirur.

He assails the decree and judgment in A.S.No.35/2016

on the files of the Sub Court, Tirur, arose out of decree

and judgment in O.S.no.301/2012.

2. Heard the learned counsel for the

appellant/plaintiff on admission. Perused the relevant

records including the verdicts under challenge.

3. I shall refer the parties in this appeal as to

their status before the trial court, as `plaintiff' and

`defendants' hereafter for easy reference.

4. Plaintiff filed the Suit seeking declaration of

his title over the plaint schedule property and also

perpetual injunction. According to the plaintiff, he

obtained title to the plaint schedule property on the

strength of gift deed No.3907/2012 executed by one

Mohammedali in his favour. It was contended that the

property originally belonged to Thekkepediyakkal

Mammed. Then he transferred the property in favour

of Nellanchery Ibrahim and his brother Kammu. They

transferred the property to Chekkamintepurakkal

Beeran Moideen and Mohamedali. They transferred

the property in favour of Vattiyamveettil

Kunhimoideenkutty. Chekkamintepurakkal

Mohamedali, the executant of the gift deed in favour of

the plaintiff, purchased the same from Vattiyamveettil

Kunhimoideenkutty. Plaintiff raised contention that

when the plaintiff wanted to construct a house in the

property, the defendants obstructed the same disputing

title.

5. In view of the contentions raised by the

defendants as regards to non-joinder of parties,

defendants 6 and 7, the President and Secretary of

Vakad Juma-ath Mosque were impleaded as

supplemental defendants 6 and 7.

6. Defendants 1, 2, 3 and 5 filed written

statement, inter alia, contending that the boundaries of

the plaint schedule property shown in the plaint were

incorrect. The attempt of the plaintiff was to grab the

property belonged to Vakad Juma-ath Mosque used as

its Khabarstan, on the strength of false and

fabricated gift deed. They emphatically denied the

derivation of title averred in the plaint. The specific

contention raised by them was that

Thekkepediyakkal Mammed obtained the property on

the western side of the plaint schedule property as

per document No.1981/1926 having an extent of 38 ¼

cent. Thereafter the plaintiff's father and grandfather

purchased that property comprised in RS No.83/3.

Now the plaintiff fabricated a gift deed to grab the

eastern part of the property comprised in RS No.83/3,

owned and possessed by the Vakad Juma-ath Mosque

and used as its Khabarstan. According to the

defendants, the plaint schedule property is the portion

of the property on the western part of the property

comprised in RS No.83/3 of Paravanna Desom of

Pachattiri Amsom. Total extent of the property in the

possession of Arichalipeediyekkal Kunjikammu was 57

cent. Thereafter, he wakfed the eastern part of the

property to the Mosque about 90 years ago. After the

death of Kunjikammu, the western part of the property

was in the possession of his wife and children named

Thekkepeediyekkal Mammad and Kunjali. Thereafter,

38 ¼ cent of property having 6 feet kole measurements

of 27 X 17 out of 57 cent was purchased by

Thekkepeediyekkal Mammad as per document

No.1081/1926. Mammad transferred the property to

Nellanchery Ibrayin and Kammu as per document

No.722/1943. Nellanchery Ibrayin and legal eirs of

Kammu transferred the property to Beeran Moideen

and his son Mohammedali, who is the father of the

plaintiff, as per document No.2207/1980. Thereafter,

Mohammedali and legal heirs of Beeran Moideen

transferred 17 cent of property having 6 feet kole

measurement of 16 ½ X 12 ¼ on the northern portion

to Vattiyamveettil Kunjimoideenkutty as per document

No.2016/1964. After the death of Kunjimoideenkutty,

his children Abdulla, Yoosuf, Subaida and others

transferred that property to plaintiff's father

Muhammedali as per document No.2207/1980.

Thereafter, Muhammedali obtained release deed in

respect of remaining 21 ¼ cent of property from the

legal heirs of Beeran Moideen as per document

No.1811/2012 and thereby 38 ¼ cent of property on the

western part was in the possession of Mohammedali.

The plaintiff and his predecessors had not obtained any

right over the eastern part of the above said 57 cent of

property. In the release deed No.1811/2012, the extent

of the property is falsely shown as 40 cent and they

fabricated the documents showing that the entire 57

cent of property comprised in RS No.83/3 is in the

ownership and possession of Muhammedali.

7. It was contended that 18 ¾ cent on the

eastern part property in RS No.83/3 is in the possession

of Vakad Juma-ath Mosque and there is no

improvements in the property. The plaintiff and his

predecessors have no title and possession over that

property. There is a house, well and other

improvements in the 38 ¼ cent of property situated on

the western side of Khabarstan. 18 ¾ cent of property

was dedicated as Wakf by Kunjikammu for using as

Khabarstan about 90 years ago. That property is a

Wakf property in the possession of Mosque committee.

The plaintiff fabricated gift deed showing wrong

measurements and boundaries with an intention to grab

the property of Mosque and he paid the tax using his

political influence.

8. Defendant 4 also filed written statement in

tune with the contentions of defendants 1, 2, 3 and 5.

The 6th defendant did not file written statement.

9. Courts below raised necessary issues and

tried the case. PW1 was examined and Exts.A1 to A5

were marked on the side of the plaintiff. DW1 to DW3

were examined and Exts.B1 to B11 were marked on the

side of the defendants. Exts.C1 to C4 were marked as

court exhibits.

10. On appreciation of evidence and after

addressing the rival contentions raised, the Munsiff

Court found that as per the title deeds produced by the

parties, the property covered by Ext.A1 gift deed

No.3907/2012 is the property on the western side of the

plaint schedule property and the attempt of the plaintiff

was to raise claim over the property of Vakad Juma-ath

Mosque, on the strength of Ext.A1 gift deed.

11. Even though the finding of the Munsiff was

challenged before the Sub Court, the learned Sub Judge

also dismissed the appeal.

12. While assailing legality of the concurrent

verdicts rendered by the trial court and the appellate

court, the learned counsel for the plaintiff would

submit that the lower courts non-suited the plaintiff on

the finding that the plaint schedule property is the

property of Vakad Juma-ath Mosque and the same is a

wakf property. According to the learned counsel, the

right to decide the dispute as to whether the

property is a Wakf property is vested with the Wakf

Tribunal and not with civil courts. He has placed

decision in [(2022) 4 SCC 414 : 2021 SCC OnLine SC

1003], Rashid Wali Beg v. Farid Pindari & Ors.

Therefore, the Suit is not maintainable.

13. In this matter, the case of the plaintiff is that

he obtained the property from one Mohammedali.

Ext.B4 is the title deed in the name of Mohammedali,

viz. assignment deed No.187/1950. The learned

Munsiff while addressing the title of Mohammedali as

per Ext.B4 noticed that only 38 ¼ cent property was

purchased by Mohammedali. The Commissioner

reported that the plaintiff schedule property is on the

eastern side of 38 ¼ cent of property covered by

Ext.B4 document. The Commissioner also reported

that the plaint schedule property is one lying at higher

level from the property covered by Ext.B4 document.

In fact, the plaintiff could obtain title in respect of the

property covered by Ext.B4 and the same is not the

plaint schedule property and in this regard the trial

court as well as the appellate court considered Ext.C3

report and Ext.C4 plan.

14. As per Ext.C4, the Commissioner reported

that `ABMEFNGDA' plot is the property covered by

Ext.B4 document and the plot `MEHKFNM' in Ext.C4

plan is the property covered by Ext.A1 document.

Thus as per Exts.C3 report and C4 plan, it is

emphatically clear that the plaint schedule property

covered by Ext.A1 is not the property covered by

Ext.B4 document. The plaintiff's case is that he got

title over the plaint schedule property from

Mohammedali and Mohammedali obtained the

property as per Ext.B4 document. When the

Commissioner identified the properties, it was found

by the Commissioner specifically that the plaint

schedule property is not the property covered by

Ext.B4. Be it so, the executant of Ext.B4 could not

transfer any property other than the one covered by

Ext.B4. It was found by the Commissioner further that

the plaint schedule property is one lying adjacent to the

property covered by Ext.B4. The said finding appears

to be correct. The trial court relied on decisions of this

Court reported in [1988 (1) KLT 856], Narayana Iyer

v. Vella to hold that in any suit for declaration of title

the plaintiff can succeed only on the strength of his title

and weakness in the defence is not at all germane when

the plaintiff failed to establish his title over the

property. Further the trial court also relied on the

decision of the Apex Court reported in [AIR 1954 SC

526], Moran Mar Basselios Catholics and anr. v.

Most Rev. Mar Poulose Athanasius & Ors., where the

Apex Court held that the plaintiff in ejectment suit

must succeed on the strength of his own title. This can

be done by adducing sufficient evidence to discharge

the onus that is on him irrespective of whether the

defendant has proved his case or not. A mere

destruction of the defendant's title, in the absence of

establishment of his own title carries the plaintiff no

where. As stated above, there are rival claims

regarding the title and possession over the plaint

schedule property. It is trite law that in a suit for

declaration of title, burden always lies on the plaintiff

to make out and establish a clear case for granting such

a declaration and weakness, if any, of the case set up by

the defendants would not be a ground to grant relief to

the plaintiff. Other decisions of the Apex Court on this

point were also referred.

15. It is the trite law that in a suit for declaration of

title, it is the duty of the plaintiff to prove his title

independently by convincing and cogent evidence after

identifying the property in tune with his title deed, to

succeed. It is well settled further that the

disadvantages, fault or frailty of the defendant would

not confer title to the plaintiff. In this matter,

Ext.A1 is the gift deed executed in favour of the

plaintiff, by one Mohammedali and Mohammedali

obtained the property as per Ext.B4 assignment deed of

the year 1950. Since the Commissioner categorically

reported that the property covered by Ext.B4 is not the

plaint schedule property, the plaintiff could not succeed

in establishing title over the plaint schedule property on

the strength of Ext.A1 since the plaintiff would get title

only in respect of the property covered by Ext.B4 if the

same was transferred by Ext.A1. Thus the available

materials would go to show that the plaintiff miserably

failed to prove his title over the plaint schedule

property in tune with the prior title deed. Thus the

Commissioner reported that the property now

identified as the plaint schedule property is the

property belonged to Vakad Juma-ath Mosque and the

same is a place meant for burying dead bodies used as

Khabarstan.

16. It is true that as per the decision of the Apex

Court in [(2022) 4 SCC 414 : 2021 SCC OnLine SC

1003], Rashid Wali Beg v. Farid Pindari & Ors. when

there is dispute as to the nature of the property as wakf

or not, the same is to be decided by the Wakf Tribunal.

In fact, in this case the matter in issue is; which is the

property transferred by Mohammedali in favour of the

plaintiff as per Ext.A1, in continuation of Ext.B4, its

prior title deed. To put it otherwise, the dispute is

mainly centred on the question as to whether the

plaintiff obtained title to the plaint schedule property

which is found to be in occupation of Vakad Juma-ath

Mosque? As per the available evidence with particular

reference to Exts.C3 report, C4 plan and Ext.B4 it is

emphatically clear that the plaintiff failed to establish

title over the property covered by Ext.B4. Thus it is

decipherable that Ext.A1 gift deed was executed in

respect of the property of Vakad Juma Masjid, though

the said property is not covered by Ext.B4. In fact, the

property covered by Ext.B4, which admittedly lying on

the western part of the 57 cent of property comprised in

RS No.83/3 of Paravanna Desom of Pachattiri Amsom,

not transferred in the name of the plaintiff to declare

his title over the plaint schedule property. Thus the

courts below rightly non-suited the plaintiff and the

said verdicts do not require any interference. In fact, no

substantial question of law arises in this Second Appeal

to admit and maintain this appeal.

17. In order to admit and maintain a Second

Appeal, substantial question of law necessarily to be

formulated by the High Court within the mandate of

Order XLII Rule 2 Read with Section 100 of C.P.C.

18. In these cases, the learned counsel for the

appellant failed to raise any substantial question of law

warranting admission of the Second Appeal. Order

XLII Rule 2 provides thus:

"2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI

for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100."

19. Section 100 of the C.P.C. provides that, (1)

Save as otherwise expressly provided in the body of

this Code or by any other law for the time being in

force, an appeal shall lie to the High Court from every

decree passed in appeal by any Court subordinate to the

High Court, if the High Court is satisfied that the case

involves a substantial question of law. (2) An Appeal

may lie under this section from an appellate decree

passed ex parte. (3) In an appeal under this section, the

memorandum of appeal shall precisely state the

substantial question of law involved in the appeal. (4)

Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall

formulate that question. (5) The appeal shall be heard

on the question so formulated and the respondent shall,

at the hearing of the appeal, be allowed to argue that

the case does not involve such question. Proviso says

that nothing in this sub-section shall be deemed to take

away or abridge the power of the Court to hear, for

reasons to be recorded, the appeal on any other

substantial question of law, not formulated by it, if it is

satisfied that the case involves such question.

20. In the decision in [2020 KHC 6507 : AIR

2020 SC 4321 : 2020 (10) SCALE 168], Nazir

Mohamed v. J. Kamala and Others reported in the

Apex Court held that:

The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v.

Savitribai Sopan Gujar, [(1999) 3 SCC 722.

21. In a latest decision of the Apex Court

reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC],

Government of Kerala v. Joseph, it was held as

under:

For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well - established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.

22. The legal position is no more res-integra on

the point that in order to admit and maintain a second

appeal under Section 100 of the C.P.C, the Court shall

formulate substantial question/s of law, and the said

procedure is mandatory. Although the phrase

'substantial question of law' is not defined in the Code,

'substantial question of law' means; of having

substance, essential, real, of sound worth, important or

considerable. It is to be understood as something in

contradistinction with - technical, of no substance or

consequence, or academic merely. However, it is clear

that the legislature has chosen not to qualify the scope