Dismissed

Amina v. Khadeeja

Kerala HC24 Oct 2016RSA/770/2016

Case brief

AI extract

What is this about?

This regular second appeal challenged a lower court's dismissal of a suit filed by the appellant for exclusive possession. The High Court upheld the lower courts' findings that the appellant failed to prove title or possession, relying instead on the respondents' evidence of partition deed, kanam assignment, and valid purchase certificate under the Kerala Land Reforms Act.

What did the court decide?

Regular Second Appeal No. 770 of 2016 dismissed as there was no illegality or impropriety in the lower court's finding against the plaintiff.

Amina Vs Khadeeja — Execution and Attachment | 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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MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938

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RSA.NO. 770 OF 2016 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 29-02-2016 IN AS 412/2009 OF V-ADDL. DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT AND DECREE DATED 30-09-2009 IN OS 134/2008 OF MUNSIFF COURT, ALATHUR

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APPELLANT/APPELLANT/PLAINTIFF:

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AMINA, W/O EBRAHIM MUSSALIAR, AGED 54 YEARS, RESIDING AT KOLAKKACHIRA HOUSE, VAVULLIAPURAM AMSOM AND DESOM, TARUR NO.II VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.BABY MATHEW

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. KHADEEJA, W/O LATE MUHAMMED, AGED 66 YEARS, RESIDING AT KOLAKKACHIRA HOUSE, VAVULLIAPURAM AMSOM AND DESOM, TARUR NO.II VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678543.

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2. ANFAR, S/O LATE MUHAMMED, AGED 37 YEARS, RESIDING AT KOLAKKACHIRA HOUSE, VAVULLIAPURAM AMSOM AND DESOM, TARUR NO.II VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT-678543.

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BY ADV. SRI.P.R..VENKETESH (CAVEATOR)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 770 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2016

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J U D G M E N T

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According to the plaintiff, she has got

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absolute right, title, interest and possession over the plaint schedule property by virtue of a registered Gift Deed No.1544/1993 of S.R.O., Alathur executed in her favour by her husband 'Ibrahim Musaliyar' and she has been remitting land tax for the property and enjoying the same. Later, she had acquired Jenmom right over this property as per purchase certificate No.1223/2004 of Land Tribunal, Ottapalam. The defendants are owners in possession of the property situated on the eastern side of the Panchayat road. Her apprehension is that the defendants will trespass into the plaint schedule property and take possession of the same, after committing mischief in the property. On the other

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R.S.A. No. 770 of 2016

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-: 2 :-

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hand, the defendants contended that the gift deed relied on by the plaintiff is a concocted one and the husband of the plaintiff had no title over the plaint schedule property to give the same to the plaintiff. The purchase certificate relied on by the plaintiff is not related to the plaint schedule property. According to them, actually the plaint schedule property along with other properties belonged to the husband of the 1^st defendant, who is the father of the 2^nd defendant. The Land Tribunal, Alathur has issued purchase certificate in the name of the defendant's predecessor in the year 1980. So, the purchase certificate produced by the plaintiff is a concocted and forged one.

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The defendants have planted rubber saplings in around 23 cents of the said property and the rest of the property was leased out to one 'Kabeer' to cultivate tapioca and he is now doing tapioca

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R.S.A. No. 770 of 2016

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-: 3 :-

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cultivation therein. It is also contended that the property belonged to their family and partition was effected in the family by virtue of partition deed No.996/1946 and the property in question was allotted to the share of one 'Ramaswami Iyer' and later, predecessor of the defendants got the property, by virtue of kanam assignment executeed by 'Ramaswami Iyer'.

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On the rival pleadings, both parties

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adduced evidence; both oral and documentary. It has come out in evidence that the plaintiff has obtained a purchase certificate under Section 72K of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'). But, even though, she has contended that the property originally belonged to her husband 'Ibrahim Musaliyar' and she got title and possession over the property, by virtue of Gift Deed No.1544/1993 of S.R.O., Alathur, the said Gift

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R.S.A. No. 770 of 2016

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-: 4 :-

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Deed has not been produced in evidence. Even though,

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the plaintiff has produced Exts.A2 to A2(b) tax receipts to prove the mutation in her favour, after

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examining the tax receipts, the courts below concurrently found that they do not contain the survey numbers of the property. Thus, the only evidence available on record is Ext.A1 purchase certificate to substantiate the title and possession over the property.

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On the other hand, the defendants have

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produced Exts.B1 to B5(a) as pleaded in order to substantiate the contention that the property belonged to their family and the defendants have produced Ext.B1 partition deed of the year 1946 and

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as per the said partition deed, the plaint schedule property was allotted to the share of one 'Ramaswami Iyer', who later executed Ext.B2 kanam assignment deed in favour of the husband of the 1^st defendant.

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R.S.A. No. 770 of 2016

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-: 5 :-

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Subsequently, the defendants have obtained Ext.B3 purchase certificate under Section 72K of the Act. Thus, the 1st defendant has established her title and possession over the property by Exts.B1 to B3. Besides, she has mutated the property in her name and payment of tax is evidenced by Exts.B4 and B5. After examining Exts.B4 and B5 tax receipts, the courts below concurrently arrived at a finding that the tax receipts tally with Ext.B3 purchase certificate and prior documents. Thus, the defendants have succeeded in establishing their title and possession over the property.

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On the above analysis, the courts below concurrently arrived at a finding that the plaintiff failed to prove exclusive possession over the plaint schedule property on the date of suit and no attempts were made by her to convert the suit, for a declaration on the basis of title, particularly,

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R.S.A. No. 770 of 2016

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-: 6 :-

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when the defendants have produced various documents to establish title and possession over the property.

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I do not find any illegality or impropriety in any

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of the findings, whereby the courts below concurrently rejected the right of title and possession over the plaint schedule property claimed by the plaintiff. No question of law arises for consideration.

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Hence, this Regular Second Appeal will stand dismissed accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Amina v. Khadeeja

Case brief

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Amina v. Khadeeja

Case brief

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