Dismissed

Mammad Alias Bappu v. Muhammed Ishaq Haji

Kerala HC21 Oct 2016RSA/202/2016

Case brief

AI extract

What is this about?

In this ordinary second appeal against a civil suit for recovery, the High Court of Kerala dismissed the appellants' challenge. The court held that the Commissioner correctly identified the disputed B Schedule property via a re-survey plan, finding it distinct from the A Schedule property granted in the sale deed. Consequently, the plaintiffs lacked title over the B Schedule land, and the appellat

What did the court decide?

The second appeal was allowed in favor of the lower appellate court, with no question of law arising; the plaintiffs' claim for recovery of the B Schedule property was dismissed.

Mammad Alias Bappu Vs Muhammed Ishaq Haji — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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RSA.No. 202 of 2016 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 12/8/2015 IN AS 99/2014 of SUB COURT, MANJERI.

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AGAINST THE JUDGMENT AND DECREE DATED 23-03-2010 IN OS 72/1991 OF THE MUNSIFF-MAGISTRATE' COURT, PERINTHALMANNA.

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APPELLANTS(APPELLANTS/PLAINTIFFS 1 & 2):

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1. MAMMAD ALIAS BAPPU, AGED 73 YEARS, S/O. KUNHIMARAKKAR HAJI, VALIYAPEEDIKAKKAL HOUSE, ARAKKUPARAMBU AMSOM, PUTHOOR DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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2. YOUSUF HAJI, AGED 68 YEARS, S/O. KUNHIMARAKKAR HAJI, VALIYAPEEDIKAKKAL HOUSE, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.T.SETHUMADHAVAN (SENIOR)

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SMT.N.DEEPA SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON

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RESPONDENTS(RESPONDENTS/DEFENDANTS & 3RD PLAINTIFF):

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1. MUHAMMED ISHAQ HAJI, AGED 57 YEARS, S/O. ABDUL KADER HAJI, VALIYAPEEDIKAKKAL HOUSE, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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2. SAMEERA, AGED 49 YEARS, W/O. MUHAMMED ISHAQ HAJI,

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D/O. VALIYAPEEDIKAKKAL MOIDUTTY HAJI, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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.......2

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-2-

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3. MUHAMMED FAIZY, AGED 44 YEARS, D/O. VALIYAPEEDIKAKKAL MUHAMMKEDKUTTY HAJI, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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4. FATHIMA SARIN, AGED 42 YEARS, D/O. VALIYAPEEDIKAKKAL MUHAMMKEDKUTTY HAJI, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA

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TALUK, MALAPPURAM DISTRICT.

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5. USMAN ALIAS KUNHIPPA HAJI, AGED 64 YEARS, VALIYAPEEDIKAKKAL HOUSE, ARAKKUPARAMBA AMSOM DESOM, PERINTHALMANNA TALUK,

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MALAPPURAM DISTRICT.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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-----------------------------------------------------R.S.A. No. 202 of 2016

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Dated this the 21^st day of October, 2016

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JUDGMENT

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The appellants are the plaintiff Nos.1 and 2 in O.S.No.72/1991 on the files of the Munsiff-Magistrate's Court, Perinthalmanna, and the respondents are the defendants and 3^rd plaintiff in the suit. The suit is one for recovery of plaint 'B' Schedule property from the defendants. According to the plaintiffs, the 'B' Schedule property forms part of 'A' Schedule property and they are entitled to get recovered the 'B' Schedule property from the defendants who are in possession and enjoyment of 'B' Schedule property. The trial court held that the plaintiffs failed to establish that 'B' Schedule property forms part of property covered under Ext.A1 sale deed and dismissed the suit. In

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R.S.A. No. 202 of 2016 -: 2 :-

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appeal, the lower appellate court also confirmed the said finding and held that there cannot be any plaint 'B' Schedule property which forms part of plaint 'A' Schedule property in view of Ext.A1 sale deed. The legality and propriety of the aforesaid finding are mainly challenged in this R.S.A.

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Heard the learned counsel for the appellants. The learned counsel for the appellants drew my attention to the findings of the lower appellate court that admittedly, the Commissioner has not identified the property as it is described in the respective title deeds. The learned counsel further contends that, after arriving at such a finding, the court below found that the plaint 'B' Schedule property does not form part of plaint 'A' Schedule property and the plaintiffs have neither title; nor possession over the 'B' Schedule property.

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Admittedly, the plaintiffs are claiming title and possession under Ext.A1 sale deed and as per the sale deed, they have right and possession over 46 cents of

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R.S.A. No. 202 of 2016 -: 3 :-

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property comprised in Sy.No.424/2A-1. The Advocate Commissioner, with the help of the Taluk Surveyor, measured the property and submitted Ext.C5(a) plain. According to Ext.C5(a) plan, the plaint schedule property lies on the southern side of 'AG' line shown in Ext.C5(a) plan and the plot is marked as 'AGHJ' which is lying north to the disputed compound wall. Thus, the property has been identified by measuring the property with the Re-survey plan. Similarly, the Commissioner identified 'B' Schedule property. In view of Ext.B3 document produced by the defendants and found that 'B' Schedule property lies on the southern side of 'A' Schedule property and it pertains to 3 cents of property purchased by the defendants for the purpose of a way to their property and the said 'B' Schedule property comprised in Sy.No.424/6. Indisputably, the appellant has no property in Survey No.424/6, after identifying 'A' and 'B' schedule properties, in accordance with the Re-survey plan. The court below found that there cannot be a 'B' schedule

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R.S.A. No. 202 of 2016 -: 4 :-

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property, which forms part of plaint 'A' schedule, as the plaintiffs have no claim over the property comprised in Survey No.424/6 under the title deed. Therefore, it cannot be said that 'A' schedule property has not been identified. Thus, this Court is of the view that the lower appellate court has identified the property in view of Ext.C5(a) plan, which was prepared in accordance with the Re-survey plan. There is no illegality in the findings whereby the lower appellate court dismissed the appeal. No question of

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law arises for consideration in this appeal.

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This appeal fails and dismissed accordingly.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

Mammad Alias Bappu v. Muhammed Ishaq Haji

Case brief

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Mammad Alias Bappu v. Muhammed Ishaq Haji

Case brief

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