IMPORTANT POINT
The cancellation of the assignment without affording an opportunity of being heard to the original assignee renders the same inoperative, illegal, and invalid in law. The plaintiff was not entitled to the decree of declaration as prayed for without seeking the relief of recovery of possession.

JUDGMENT :

This Regular Second Appeal is filed challenging the judgment and decree passed by the Munsiff‘s Court, Kasaragod, in O.S.No.197 of 2003 which was confirmed by the decree and judgment dated 24.03.2007 passed by the Subordinate Judge‘s Court, Kasaragod in A.S.No.71 of 2004. The plaintiff is the appellant. The defendants are the respondents. During the course of the proceedings defendants 4 and 5 died. Their legal representatives were impleaded as additional respondents 8 to 11.

Pleadings:-

The plaintiff

2. The plaint schedule property is 73cents of land in Re-Survey No.137/4 of Ichilangodu Village, Kasaragodu Taluk. Moosa, S/o Mohammed, the predecessor-in-interest of the plaintiff acquired title and possession over the property as per proceedings in L.A.No.199/73/Ichilangodu. The plaintiff purchased the property as per registered sale deed No.456/1992 dated 24.02.1992. Ever since the date of assignment, Shri. Moosa had been possessing the property till it was assigned to the plaintiff. As per the sale deed No.456/92, the plaintiff obtained title and possession over the property as its absolute owner. The plaint schedule property is a dry and rocky land without any building. The property has well defined boundaries. The defendants have no right over the plaint schedule property. Defendants 4 to 6 raised a false claim in respect of the plaint schedule property that the property was assigned in their favour as per a proceeding initiated as per the Kerala Land Assignment Rules, 1964 (the KLA Rules, 1964). When defendants 4 to 6 attempted to trespass into the property on 27.04.2003 the plaintiff instituted O.S.No.308/1995 before the Munsiff‘s Court, Kasaragod seeking a permanent prohibitory injunction.

The said suit was dismissed. The appeal challenging the decree dismissing the suit was also dismissed. Since a cloud is cast on the plaintiff‘s title due to the false claim raised by defendants 4 to 6, the plaintiff instituted the present suit seeking declaration of his title over the property and for an ancillary prohibitory injunction.

Defendants 1 to 3

3. The plaint schedule property comprised in Resurvey No.137/4 of Ichilangod Village was assigned in favour of one Moosa, S/o Maithakad Mohammad as per order of assignment dated 21.08.1978 in LA No.119/1973 of Ichilangod Special Tahsildar. But the said assignment was cancelled on 31.03.1981 due to non-remittance of LA dues within the time limit prescribed. This land was later assigned to defendant Nos.4 to 6 as per order in L.A.43/1993/Ichilangod dated 27.07.1994 and pattas were also issued.

Defendants 4 to 6

4. The suit is barred by the principle of res judicata. The plaintiff did not secure valid title over the plaint scheule property. The plaint schedule property was assigned in favour of defendant Nos.4 to 6 as per proceedings No.43/1993. The assignment in favour of Moosa, the predecessor-in-interest of the plaintiff had been cancelled due to non-remittance of LA dues. Defendant Nos.4 to 6 are in possession of the plaint schedule property. The plaintiff has no title or possession over the property.

Defendant No.7

5. Defendant No.7 is the original assignee of the plaint schedule property. The plaint schedule property was assigned in his favour as per order in proceedings No.LA 119/1973 of Ichilangod Special Tahsildar. He had paid the land assignment dues and the authorities had issued patta to him and thereafter he conveyed the same to the plaintiff.

6. The Trial Court framed the following issues:-

“(1).Whether the plaintiff has got title over the suit property.

(2) Whether the suit is barred by the principles of res judicata and estoppel.

(3) Whether the description of the suit property given in the plaint is correct. (4) Whether the plaintiff is entitled to get a decree as prayed for in the suit.

(5) Reliefs and costs.”

7. The parties went to trial. PWs 1 and 2 were examined and Exts. A1 to A9 series were marked on the side of the plaintiff. DWs 1 and 2 were examined and Exts.B1 to B7