LAWS(KER)-2011-6-55

KELAMBATH NANI Vs. T K MAHAMMOD

Decided On June 14, 2011
KELAMBATH NANI Appellant
V/S
T.K.MAHAMMOD Respondents

JUDGEMENT

(1.) PLAINTIFF in O.S.13/1996 on the file of Munsiff Court, Thalassery is the appellant. Defendant is the respondent. Suit was filed for recovery of possession of the plaint schedule property from the possession of the respondent on the strength of title. The title set up is under Ext.A1. Appellant contended that as she was not having any house or land, on an application filed by her, for constructing a house the plaint schedule property was allotted to her under Ext.A1 on 28.7.1980 and pursuant to that order, she constructed a hut therein and started residing. But due to rain, the hut fell down and she shifted her residence to the house of her sister Rohini. It is alleged that subsequently she applied to the District Collector for a loan to construct a house and Rs.2000/- was allowed and while she was making preparations to construct a house, on 3.2.1990 respondent with the help of CPI (M) workers trespassed into the property without her consent and reduced the property into his possession and constructed a hut. It is alleged that a police case was registered and the respondent was tried in C.C.270/90 for the offence under section 447 of Indian Penal Code and he was convicted and the appeal filed challenging the conviction was also dismissed and the respondent has no right to the property and therefore appellant is entitled to recover possession of the property.

(2.) RESPONDENT resisted the suit contending that appellant has no title and she is not entitled to the decree sought for. Learned Munsiff on the evidence of PWs.1 and 2, DW1 and Exts.A1 to A4, C1 and C2(a) dismissed the suit holding that Ext.A1 is not a title deed and it is only a consent given to the appellant to construct a house and even according to the appellant she had left the house after residing therein for some months and was not residing there for more than ten years and as she has no title, she is not entitled to recover possession of the property. Learned Munsiff also found that if at all the appellant could seek recovery of possession as provided under section 6 of the Specific Relief Act, as the appellant was allegedly dispossessed in 1990 and the suit was filed only in 1996, she is not entitled to claim possession under section 6 of the Specific Relief Act also. Appellant challenged the judgment before Sub Court, Thalassery in A.S.60/2001. Learned Sub Judge on reappreciation of evidence found that Ext.A1 will not confer title on the appellant and based on Ext.A1 plaint schedule property cannot be identified and appellant is therefore not entitled to the decree for recovery of possession. It is challenged in the second appeal.

(3.) THE suit is one for recovery of possession on the strength of title. Appellant could succeed only on establishing her title. THE title set up is on the strength of Ext.A1. As rightly found by the courts below Ext.A1 is only a consent letter and by Ext.A1 appellant did not obtain title to the property. Ext.A1 shows that she was permitted to construct a building and reside therein, providing that she has no right to alienate and if she discontinue the residence, the property is to be returned to the Government. Admittedly no purchase certificate was issued pursuant to Ext.A1 and therefore finding of the courts below that appellant has no title under Ext.A1 is perfectly correct.