Dismissed

Rajesh.N.S v. Parameswaran Namboothiri and Others

Kerala HC21 Jun 2012RSA/86/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title and recovery of possession, the High Court dismissed the appeal. The appellant, claiming ancestral ownership via a settlement register, was unable to rebut evidence from the respondents showing title accrued through a prior redemption process acknowledged by a lower court judgment in which some family members were parties.

What did the court decide?

Second appeal dismissed; interlocutory applications dismissed.

Rajesh.N.S Vs Parameswaran Namboothiri and Others — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934

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RSA.NO. 86 OF 2011 ( )

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AS.81/2008 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR OS.32/2007 OF SUB COURT, PERUMBAVOOR

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APPELLANT/APPELLANT/PLAINTIFF:

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RAJESH N.S., S/O.SIVAN, NACKILIKKATTU HOUSE, ALLAPPRA KARA, VENGOLA VILLAGE KUNNATHUNADU TALUK.

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BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.K.C.KIRAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. PARAMESWARAN NAMBOOTHRI, S/O.RUDRAN NAMBOOTHIRI, KOZHIPPALLY MANACKAL ALLAPRA BHAGATHU, VENGOLA VILLAGE, PIN-683 553.

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2. RAMAN NAMBOOTHIRI, S/O.RUDRAN NAMBOOTHIRI, KOZHIPPALLY MANACKAL ALLAPRA BHAGATHU, VENGOLA VILLAGE PIN-683 553 (DIED).

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3. NARAYANAN NAMBOOTHIRI, S/O.RUDRAN NAMBOOTHIRI, ALLAPRA BHAGATHU VENGOLA VILLAGE, PIN-683 553.

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4. PADMINI, W/O.LATE RAMAN NAMBOOTHIRI, KOZHIPPALLY MANACKAL, ALLAPRA BHAGATHU VENGOLA VILLAGE, PIN-683 553.

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R.S.A. No.86 of 2011

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5. GIRISH, S/O.LATE RAMAN NAMBOOTHIRI, KOZHIPPALLY MANACKAL, ALLAPRA BHAGATHU VENGOLA VILLAGE, PIN-683 553.

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6. HARISH, S/O.LATE RAMAN NAMBOOTHIRI, KOZHIPPALLY MANACKAL, ALLAPRA BHAGATHU VENGOLA VILLAGE, PIN-683 553.

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BY ADV. SRI.N.NEELAKANDHAN NAMBOODIRI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No. 86 of 2011

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==================================== Dated this the 21^st day of June, 2012

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J U D G M E N T

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Plaintiff in O.S. No.32 of 2007 of the court of learned Sub Judge, Perumbavoor is the appellant before me. He filed the suit for declaration of title and recovery of possession of the suit property. He claimed that the said property was acquired by his great grand father, Kelan of Nacklikkat family as tax free land. There is a temple in the suit property where the members of the Nacklikkat family used to offer worship. After the death of Kelan, property was inherited by his legal heirs who were performing poojas in the temple. Respondents are poojaries belonging to the Namboothiri Community engaged for conducting poojas in the temple in the suit property. In the year 1983 there were some dispute between the temple committee and the third respondent. That resulted in the temple committee filing O.S. No.596 of 1985 and respondents 1 and 2 filing O.S. No.597 of 1985. Those suits were dismissed as per Ext.B10, judgment dated 29.01.2004. According to the appellant respondents have no right in the suit property. Hence the suit for declaration of title and recovery of possession on behalf of all the members of Nacklikkat family.

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R.S.A. No.86 of 2011

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-: 2 :-

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Respondents contended that appellant or his family has no right or interest in the suit property. Kelan, referred to in the plaint is not the great grand father of appellant nor did Kelan belong to Nacklikkat family. They claimed that suit property belonged to their predecessor-in-interest and by inheritance it devolved on them.

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Trial court was not inclined to accept the case of appellant that the suit property belonged to his family having been acquired by his great grand father as he claimed. The suit was dismissed. That was confirmed by the learned Additional District Judge, North Paravur in A.S. No.81 of 2008. Hence this Second Appeal.

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Learned Senior Advocate has contended that both parties relied on revenue records to prove the title claimed by them. Exhibit A2 is the report of Advocate Commissioner. It is reported by the Advocate Commissioner after a perusal of the settlement register (which was in such a condition due to oldness that it could not be brought to the court) that property comprised in Sy.No.706/9 belonged to Thattayath Panicker and that it was mutated in the name of Thattayath Panicker Kumaran Kelan as per T.P account No.1075. According to the learned

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R.S.A. No.86 of 2011

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-: 3 :-

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Senior Advocate, the revenue records relied on by the respondents are subsequent to the settlement register referred to in Ext.A2 and hence the settlement register referred to in Ext.A2 must be given predominance over the other. It is contended that there is sufficient evidence to show that Thattayath Panicker Kumaran Kelan belonged to Nacklikkat family to which the appellant belongs. My attention is also drawn to Exts.A1 to A7.

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Learned counsel who appeared for the respondents contended that this is the second round of litigation it having started in the year, 1985 which was concluded by Ext.B10, judgment where it is specifically held that members of Nacklikkat family are the descendants of Thattayath Panicker Kumaran Kelan cannot be accepted, and that would cut at the root of the case pleaded by the appellant.

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I am given a copy of Ext.B10 judgment. It is not disputed that O.S. No.596 of 1985 was filed by the temple committee and that at least a few members of that committee claimed to be members of the Nacklikkat family. There also the same contention as to title was raised tracing title to Thattayath Panicker Kumaran Kelan as if he is the predecessor-in-interest of

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R.S.A. No.86 of 2011

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-: 4 :-

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the members of Nacklikkat family. In paragraph 12 of Ext.B10, judgment it is held that the contention that plaintiff or members of Nacklikkat family are the descendants of Thattayath Panicker Kumaran Kelan (referred to in Ext.A2) cannot be believed.

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Learned Senior Advocate would contend that, that was a suit filed by the members of the temple committee who happened to include a few members of the Nacklikkat family also and hence the said finding cannot bind the appellant or other members of the family as they were not parties to O.S. No.596 of 1985. But, as at least some of the members of the Nacklikkat family were parties in O.S. No.596 of 1985, appellant cannot simply ignore Ext.B10. Assuming otherwise, I am inclined to think that Exst.B10 can be taken as an item of evidence in favour of the respondents under Section 13 of the Evidence Act.

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Exhibits A1 to A7 are produced to show that appellant is a member of Nacklikkat family. Assuming so, question is whether appellant and other members of Nacklikkat family are descendants of Thattayath Panicker Kumaran Kelan and at any rate, whether title of the property vested with the said Thattayath Panicker Kumaran Kelan or his legal descendants? True that in ExtA2, it is stated by the Advocate Commissioner

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R.S.A. No.86 of 2011

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-: 5 :-

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that the settlement register referred to the property in Sy. No.706/9 as belonging to Thattayath Panicker and it is mutated in the name of Thattayath Panicker Kumaran Kelan as per T.P account No.1075. The property is described as Kalari Purayidom where deity of Nacklikkat family is installed.

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As against Ext.A2, respondents rely on Exs.B1 to B3. Exhibits B2 and B3 are the copies of settlement register and basic tax register and show that the property in dispute stood in the name of Kozhippally Illath Parameswaran Namboothiri (admittedly the predecessor-in-interest of respondents) and that there was an assignment to Narayanan Namboothiri.

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In paragraph 15 of Ext.B10, judgment there is reference to the title of respondents over the suit property. It is observed therein that possession of property was with the predecessor-in-interest of the respondents by way of Otti for a long time, it was not redeemed within the period of limitation and thus predecessor-in-interest of respondents got title. Exhibits B1 to B3 and B6, copy of T.P account support that contention of respondents and the finding entered by the learned Munsiff in paragraph 15 of Ext.B10.

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Thus as against the documents which respondents

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R.S.A. No.86 of 2011

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-: 6 :-

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have produced to show that property was acquired by their predecessor-in-interest what is available on the side of the appellant is what is stated in Ext.A2. In that view of the matter appellant cannot displace the effect of documents produced by respondents and claim title and possession as per the statements in Ext.A2 and seek recovery of possession on the strength of title. Hence the courts below are correct in non-suiting the appellant.

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Having heard learned counsel on both sides and gone through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.

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Second Appeal is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Rajesh.N.S v. Parameswaran Namboothiri and Others

Case brief

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Rajesh.N.S v. Parameswaran Namboothiri and Others

Case brief

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