Kerala High Court
Gopakumar vs Travancore Devasam Board on 13 September, 2024
RSA NO.315 OF 2019 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
RSA NO. 315 OF 2019
AGAINST THE JUDGMENT&DECREE DATED 13.04.2018 IN AS NO.108 OF 2016
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOTTAYAM
ARISING OUT OF THE JUDGMENT&DECREE DATED 29.03.2016 IN OS NO.370
OF 2006 OF MUNSIFF COURT, CHANGANACHERRY
APPELLANT/APPELLANT/PLAINTIFF:
GOPAKUMAR,
AGED 60 YEARS
S/O.NARAYANA PANICKER, SAHADEVA NIVAS FROM CHANDRATHIL
KUNNUMPURATH HOUSE, THRICKODITHANAM KARA,
THRICKODITHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM
DISTRICT, PIN-686105.
BY ADV M.P.MADHAVANKUTTY
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 TRAVANCORE DEVASWOAM BOARD,
REPRESENTED BY ITS SECRETARY, NANTHANCODE,
THIRUVANANTHAPURAM, PIN-695011.
2 SUB GROUP OFFICER,
THRICKODITHANAM VAISHNAVA MAHAKSHETRAM AFFILIATED TO
TRAVANCORE DEVASWOM BOARD, PIN-695011.
3 B.RADHAKRISHNA MENON,
PRESIDENT, KSHETRA UPADESHAKA SAMITHY,
THRICKODITHANAM VAISHNAVA MAHAKSHETRAM, PIN-695011.
4 SUJITH SUNDAR.S,
SECRETARY, KSHETRA UPADESHAKA SAMITHY,
THRICKODITHANAM VAISHNAVA MAHASHETRAM, PIN-695011.
RSA NO.315 OF 2019 2
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BY ADVS.
R1,R2 BY SRI.G.SANTHOSH KUMAR (P).
R3 BY SRI.S.SUBHASH CHAND
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO.315 OF 2019 3
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JUDGMENT
1. The plaintiff is the appellant.
2. The suit was originally for permanent prohibitory injunction
with respect to only one item of property which is having an
extent of 6 Ares of land.
3. The Trial Court dismissed the suit as per earlier judgment
dt.29.02.2008. Thereafter the plaintiff filed appeal before the
First Appellate Court as AS No. 134/2008, and the matter was
remanded to the Trial Court for fresh consideration as per
judgment dated 21.08.2012.
4. After remand, the plaintiff amended the plaint incorporating
the relief of recovery possession and amending the schedule.
As per the amended Schedule Item No.1 is having an extent of
2.70 Ares in Sy. No. 118/13 and 118/14 and Item No. 2 is having
an extent of 3.30 Ares in Sy. No. 118/17.
5. Before remand, the plaintiff had obtained Ext.C1 Report and
C1(a) Plan . After remand the plaintiff obtained Ext.C2 report
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and Exts.C2(a) and C2(b) plans.
6. The Trial Court again dismissed the suit as per judgment dt.
29.03.2016. The Trial Court found that the plaint schedule
properties are not identified; that the plaintiff did not make
necessary averments in the plaint with respect to the alleged
trespass by the defendants and that the plaintiff did not
produce the Purchase Certificate on the basis of which his
predecessor in interest obtained the properties including the
plaint schedule property.
7. The plaintiff filed AS No. 108/2016 before the First Appellate
Court and the same was dismissed as per judgment dated
13.04.2018. The First Appellate Court confirmed the findings
of the Trial Court.
8. I heard the learned Counsel for the appellant Sri M.P
Madhavankutty and also the learned Counsel for the
respondents 1 and 2 Sri.G.Santhosh kumar.
9. The learned Counsel for the appellant submitted that the
plaintiff has properly identified the plaint schedule properties
by obtaining Ext.C2(a) and C2(b) plans. The non-production of
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the earlier documents is not relevant or material for the
purpose of identification of plaint schedule property as per
Exts.A1 and A3. According to him, there is sufficient averments
in the plaint for granting recovery of possession.
10. The learned Counsel for the respondents 1&2 submitted that
the judgment and decree passed by the Trial Court as well as
the First Appellate Court are perfectly valid and legal and he
made submissions supporting the reasons stated therein.
11. The claim of the plaintiff is that the properties including the
plaint schedule property belonged to his grandfather and
father's brother as per Purchase Certificate No.225/1979
issued by the Kottayam Special Munsiff Land Tribunal. The said
property was partitioned and the father of the plaintiff obtained
the plaint schedule property as per B schedule of Ext.A4
Partition Deed. The father of the plaintiff executed a Settlement
Deed No.124/1989 in favour of the plaintiff with respect to the
plaint schedule property. The plaintiff sold it to his sister as per
Sale Deed No.1032/1991. It was re-conveyed to the plaintiff as
per Ext.A1 of the year 1996, which was corrected as per Ext.A3
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correction deed.
12. Ext. A4 Partition Deed would show that the property covered
by the Purchase Certificate was 80 cents of land and whereas
per Ext.A4 Partition Deed, 92 cents of land is partitioned. As
per Ext.A4, B schedule property therein allotted to the father
of the plaintiff is having 19 cents. But in Ext.A1 and A3 the
extent transferred is only 6 Ares. The variations in the extent
in these documents were not sufficiently explained by the
plaintiff. Since there are variation in the extent in these
documents, the prior documents including the Purchase
Certificate are relevant and material to decide the controversy
in the suit. The plaintiff ought to have produced the prior
documents, including the Purchase Certificate, in the suit to
identify the plaint schedule properties. Hence the Trial Court
as well as the First Appellate Court are justified in nonsuiting
the plaintiff for not producing the earlier title deeds.
13. Though the counsel for the appellant argued that the plaintiff's
title is proved by the revenue records which are produced in
the suit, I am of the view that if the revenue records are
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supported by the title deeds, the same could not be looked into.
14. That apart, going by Ext.C2(a) &(b) Plans, the Advocate
Commissioner has identified the plaint schedule Item No. 1 and
2 as separate plots which is separated by the property
belonging to the defendants. The plots identified by the
Advocate Commissioner do not tally with the description in the
Schedule to the plaint.
15. The plaintiff ought to have produced the Purchase Certificate
which is the parent document with respect to his claim. He
ought to have identified the property with relevance to the
Purchase Certificate to prove that the plaint schedule property
is part of the property covered by the Purchase Certificate.
Such an attempt was not made by the plaintiff.
16. On going through the plaint averments also, as rightly held by
the Trial Court as well as the First Appellate Court, the material
averments supporting the prayer for recovery of possession are
not stated. The averments are with respect to the prayer for
injunction alone. It is not stated that the defendants have
trespassed into the plaint schedule property to seek recovery.
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17. In view of the aforesaid discussions, I do not find any reason to
interfere with the judgments and decrees passed by the Trial
Court as well as the First Appellate Court.
18. The Counsel for the appellant prayed for a remand for
identification of the property as per the Purchase Certificate.
Though the First Appellate Court had already granted a
remand earlier giving an opportunity to the plaintiff to prove
his case, he did not produce the Purchase Certificate and
attempted to identify the plaint schedule property with
reference to the title deeds. Hence the prayer for remand is
rejected.
19. The Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
