K.S.JHAVERI,J. - (1.) By way of this appeal, the appellants original petitioners have challenged the judgment and order dated 10.05.2005 of the learned Single Judge whereby the learned Single Judge confirming the order of Board of Revenue as well as the original authority, which dismissed the suit filed by the petitioners.
(2.) Counsel for the appellants has contended that the learned Single Judge has travelled beyond the scope of writ petition and the Board of Revenue while considering the case has not considered the findings which has been arrived at by Revenue Appellate Authority while decreeing the suit in favour of original petitioners. He has contended that the mortgage which was done in Samvat year 2002 (relevant year 1945). The Revenue Appellate Authority while considering the case of the present appellants has observed as under: ...[VARNACULAR TEXT OMITTED]...
(3.) However, the Board of Revenue while considering the case has misread the evidence and has wrongly allowed the appeal of the present respondents and contended that the observations made by the Board of Revenue and the learned Single Judge are required to be quashed and set aside and the order passed by the First Appellate Authority is required to be allowed. Learned counsel for the appellant has placed reliance on the decision in the case of Kolathoor Variath and Anr. v. Pairaprakottoth Cheriya Kumhahammad Haji AIR 1974 SC 689 wherein it has been held as under: "3. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon, AIR 1935 Rangoon 230 at p. 232 (FB) and Hansia v. Bakhtawarmal, AIR 1958 Rajasthan 102 at p. 106. ) Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A (1) in the plaint: "That in case the Court is of opinion that the plaintiffs are not entitle to sue on the strength of mortgage as there is n o mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hence the Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant. In paragraph 1 of the plaint they set up their title to the did puted land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant.";