Kerala High Court
Snehalasyan Musliar vs Lathika on 5 June, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934
RSA.No. 66 of 2012 ()
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AS.365/2006 of I ADDL.DISTRICT COURT,KOLLAM
OS.800/2002 of MUNSIFF COURT, KARUNAGAPPALLY
APPELLANT(S)/APPELLANTS/ADDL.DEFENDANTS 2 TO 5:
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1. SNEHALASYAN MUSLIAR
AGED 64 YEARS, S/O.
KUNNAYYATHU VEEDU, PAIKUZHY MURI
OACHIRA VILLAGE, KARUNAGAPPALLY.
2. SAFIA BEEVI
AGED 59, W/O.SNEHALASYAN MUSLIAR, KUNNAYYATHU VEEDU
PAIKUZHY MURI, OACHIRA VILLAGE, KARUNAGAPPALLY.
3. AYISHATHU @ SAJANA BAI,
AGED 26 YEARS, D/O.SAFIYA BEEVI, KUNNAYYATHU VEEDU
PAIKUZHY MURI, OACHIRA VILLAGE, KARUNAGAPPALLY.
4. JAMEELA BEEVI
AGED 49 YEARS, D/O.RUKIYA UMMA KUNJU
KUNNAYYATHU VEEDU, PAIKUZHY MURI, OACHIRA VILLAGE
KARUNAGAPALLY.
BY ADV. SRI.T.MADHU
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
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LATHIKA
AGED 42 YEARS, W/O.GOPALAKRISHNA PILLAI
VISHNU NIVAS, PAIKUZHI MURI, OACHIRA VILLAGE
KARUNAGAPPALLY-690 628.
BY ADV. SRI.M.P.RAMNATH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-06-
2012, ALONG WITH RSA. 171/2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A. Nos.66 & 171 of 2012
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Dated this the 5th day of June, 2012.
JUDGMENT
These appeals arise from the common judgment and decree of the Additional District Court-I, Kollam in A.S.Nos.365 and 379 of 2006 which in turn arose from the common judgment and decree in O.S.No.800 of 2002, counter claim therein and O.S.No.368 of 2004 of the Munsiff's Court, Karunagappally. Parties are referred to as plaintiff and defendants as in the trial court.
2. Respondent in R.S.A.No.66 of 2012 (she is the 1st respondent in R.S.A.No.171 of 2012) sued the defendants for a decree for prohibitory injunction in O.S.No.800 of 2002 claiming that the suit property - 10.70 Ares in old survey No.9032 and re-survey No.55/8 originally belonged to Pathumma Kunju as per Ext.A3, she assigned that property to her daughter, Sainaba Beevi Kunju as per Ext.A2, settlement deed No.2487 of 1969 and while the said Sainaba Beevi Kunju (2nd respondent in R.S.A.No.171 of 2012) was in possession and enjoyment, plaintiff purchased the said property from the said Sainaba Beevi Kunju as per Ext.A1, assignment deed No.1159 of 2002. Thus plaintiff claimed to be the owner in possession of the suit property. Defendants are residing on the southern side of the suit property. Plaintiff alleged that defendants removed the survey stones and hence the Taluk Surveyor measured the properties and fixed the boundary. Plaintiff alleged that in spite of that , defendants are trying to trespass into the suit property. Hence the suit. RSA Nos.66 & 171 of 2012 2
3. The 1st defendant filed written statement with a counter claim contending that the suit property is in her possession based on an oral lease from Pathumma Kunju on 10.03.1963. She is a cultivating tenant. It is the further contention of the 1st defendant that Pathumma Kunju had no right to settle the said property in favour of Sainaba Beevi Kunju and for the latter, to assign it in favour of the plaintiff as per Ext.A1. In the counter claim 1st defendant prayed for a decree for prohibitory injunction against plaintiff in O.S.No.800 of 2002 trespassing into the suit property and interfering with her peaceful possession. 1st defendant filed O.S.No.368 of 2004 against the plaintiff in O.S.No.800 of 2002 for a declaration that Ext.A1, assignment deed No.1159 of 2002 executed by Sainaba Beevi Kunju in favour ofplaintiff is not binding on the 1st defendant and for other reliefs. Plaintiff in O.S.No.800 of 2002 (1st defendant in O.S.No.368 of 2004) resisted the suit filed by the 1st defendant on the very same contentions she has taken in O.S.No.800 of 2002.
4. Since an issue was raised in the trial court regarding tenancy claimed by the 1st defendant, that question was referred to the Land Tribunal for a finding. The Land Tribunal after enquiry entered a finding that 1st defendant is not a cultivating tenant of the suit property and answered the reference accordingly. Based on that finding and other evidence let in before the trial court the said court found that plaintiff in O.S.No.800 of 2002 is in absolute RSA Nos.66 & 171 of 2012 3 possession and enjoyment of the suit property and accordingly granted decree in her favour in O.S.No.800 of 2002. The counter claim in that suit and O.S.No.368 of 2004 ended in a dismissal.
5. In the meantime 1st defendant expired. Her legal heirs challenged that judgment and decree in A.S.Nos.365 and 379 of 2006 in the court of learned Additional District Judge-I, Kollam. The first appellate court confirmed the finding of the trial court and finding of the Land Tribunal on reference. Appeals were dismissed. Hence these Second Appeals.
6. Learned counsel for appellants/defendants 2 to 5 in O.S.No.800 of 2002 and additional plaintiffs 2 and 3 in O.S.No.368 of 2004 has contended that findings entered by the Land Tribunal as well as the trial and first appellate courts are not correct. It is also contended that Ext.A2, settlement deed executed by Pathumma Kunju in favour of Sainaba Beevi Kunju and following that, Ext.A1 executed by the said Sainaba Beevi Kunju are not binding on the 1st defendant since the latter is a cultivating tenant of the suit property.
7. I have heard the learned counsel who appeared on behalf of the respondent in R.S.A.No.66 of 2012 (1st respondent in R.S.A.No.171 of 2012) pursuant to the notice on the application to condone the delay in filing the appeal. Learned counsel has contended that the defendants and Pathumma Kunju are close relatives, what is claimed by the 1st defendant is an oral lease RSA Nos.66 & 171 of 2012 4 and that no evidence of possession is adduced by the appellants or the 1st defendant and in that view of the matter, there is no reason to interfere with the finding of the courts below.
8. There is no dispute regarding Exts.A1 to A3 which purported to convey right, title and interest on the suit property in favour of the plaintiff. No doubt, in O.S.No.368 of 2004 1st defendant as the plaintiff prayed for a declaration that Ext.A1, assignment deed No.1159 of 2002 executed by Sainaba Beevi Kunju in favour of the plaintiff in O.S.No.800 of 2002 (1st defendant in O.S.No.368 of 2004) is not binding on her. But, as aforesaid due execution of the deeds is not under challenge. The question is only the binding nature of the deeds and that too, in view of the contention raised by the 1st defendant that she is a cultivating tenant of the suit property. The claim of tenancy is as per an oral lease on 10.03.1963.
9. Though 1st defendant raised a claim of cultivating tenancy no evidence in support of that was adduced before the Land Tribunal and what was before the Land Tribunal was only the report of the Revenue Inspector (marked as Ext.B2 in O.S.No.800 of 2002). With that report on file the Land Tribunal found that the claim of oral tenancy raised by the 1st defendant is not correct. I must also notice that report the the Revenue Inspector is not binding on the Land Tribunal. Apart from Exts.A1 to A3, plaintiff in O.S.No.800 of 2002 also relied on Ext.A4, partition deed and Ext.A5, certificate of encumbrance to show RSA Nos.66 & 171 of 2012 5 that the 1st respondent/plaintiff purchased the property free from all encumbrances. Exts.A6 to A7 are produced to show that she has been paying revenue for the suit property. Exts.X1 and X2, copy of extract of basic tax register and thandapper account proved through PW3 show that immediately after assignment as per document No.1159 of 2002, plaintiff took possession of the property and mutation was effected in her name. Ext.A11 is a complaint preferred by the 2nd defendant to the local police where there is reference to the possession of the suit property with the plaintiff. PW4 is a coconut climber who gave evidence on behalf of the plaintiff and stated that he was plucking coconuts from the suit property for and on behalf of the plaintiff.
10. Ext.C1 is the report of the Advocate Commissioner. The Advocate Commissioner has reported that though there was no specific boundary between the property of plaintiff and property on the southern side, there were fence stumps installed on the boundary of the suit property and the property belonging to the defendants. There was no serious objection to the report submitted by the Advocate Commissioner.
11. The result is that there is no reliable evidence to prove the oral lease or possession claimed by the 1st defendant with respect to the suit property. On the other hand, the oral and documentary evidence supported the RSA Nos.66 & 171 of 2012 6 version of plaintiff in O.S.No.800 of 2002 that she is the owner in possession of the suit property. In that view of the matter trial court was justified in holding in favour of the plaintiff and the first appellate court has concurred with that finding.
12. On hearing learned counsel and going through the judgments under challenge, I do not find any substantial question of law involved in these appeals requiring its admission.
Second Appeals are dismissed.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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