KATHANI @ YESODA AMMA Vs. THANKAMMA

JUDGEMENT

(1.) Plaintiffs in O.S.254/84 on the file of Munsiff Court, Payyannur are appellants. First appellant died subsequent to the filing of the appeal and appellants 2 to 6 were recorded as her legal heirs. Respondents are the defendants. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule properties. Plaint schedule properties are two items of properties comprised in R.S.217/2B of Kadannappali Village of Kannur Taluk. Though originally plaint schedule properties were shown as having an extent of 16 = cents, it was subsequently got amended in accordance with Exts.C3 plan and C4 report submitted by the Commissioner showing the extent of item No. 2 as 5 cents and 2= cents and item No. 2 as 3= cents. According to appellants plaint schedule property originally belonged to their tharwad and under Ext.A1 partition deed dated 23.12.1959 plaint schedule properties were set apart to the thavazhi of first appellant and her children as items Nos. 3 to 5 of B schedule of Ext.A1 partition deed and while they have been in possession, there was an oral partition and later under Ext.A2 partition deed dated 2.7.84 appellants are in possession of the plaint schedule property. Their case is that plaint schedule properties are item Nos. 4 and 5 of 'B' schedule allotted to them under Ext.A2 and respondents have no manner of right or possession to the plaint schedule properties and they are to be restrained by a decree for injunction. First respondent filed a written statement contending that plaint schedule properties are in her possession and it was originally in the possession of her husband Kunhiraman Nambiar as having obtained it from Kerala Sarvodaya Sangham under the Boodhanam movement in 1955 and thereafter her husband S.A.872/92 3 purchased the jenm right as per order in O.A.24610/1976 of Payyannur Land Tribunal and purchase certificate was also obtained and thereafter it was gifted to her under Ext.A14 gift are dated 30-4-1981 and since then the properties were in her possession and appellants are not entitled to the decree sought for. After the amendment of the plaint, additional written statement was filed contending that property in her possession was also the properties in survey No. 217/2B and R.S.256/1B2 and appellants are not entitled to get a decree in respect of the said property. Second respondent filed a written statement raising the same contentions as that of the first respondent. It was further contended that his father Kottile Vettil Sankaran obtained the property in 1955 from Kerala Sarvodaya Sangham and he purchased jenm right and obtained Ext.B6 purchase certificate also and appellants are not entitled to get a decree sought for. Third respondent filed a written statement raising similar contentions and also contending that she obtained two acres of property including plaint schedule property from Kerala Sarvodaya Sangham and after getting jenm right, she assigned 25 cents to E.K. Bhargavan and the remaining 1 acre and 75 cents are in her possession and appellants are not entitled to the decree sought for. Learned Munsiff framed the necessary issues. On the evidence of third appellant as PW1 and third defendant as DW2 and Exts.A1 to A15, B1 to B15 and C1 to C4 learned Munsiff dismissed the suit holding that appellants failed to establish their possession of plaint schedule property. Appellants challenged the decree and judgment before Sub Court, Payyannur in A.S.25/89. Learned Sub Judge after reappreciation of evidence, confirmed the decree of the trial court and dismissed the appeal. It is challenged in this second appeal.

(2.) Second appeal was admitted formulating the following substantial question of law.

(3.) Learned counsel appearing for appellants and respondents were heard.