IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 SA.No. 893 of 1996(F) --------------------- AS.27/1992 of SUB COURT, HOSDURG OS.292/1989 of MUNSIFF COURT, HOSDURG .................... APPELLANT(S)APPELLANTS/PLAINTIFFS 2 & 3: -------------- 1. K.V.LAKSHMI, WIDOW OF LATE V.V.KOMAN, BELUR VILLAGE, HOSDURG. 2. K.V.RUGMINI, D/O.V.V.KOMAN, -DO- -DO- BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKAN RESPONDENT(S)/RESPONDENT/DEFENDANT: --------------- VALIYAVEETTIL AMBU, S/O.PUTHIYAVEETTIL AMBU, MUTTUCHARAL, BEHUR, HOSDURG. (DIED ON 1.10.97) (LRS IMPLEADED) (*) ADDL.RESPONDENTS 2 TO 6: 2. M.DEVAKI, W/O.VALIYAVEETTIL AMBU, VALIYAVETTIL, MUTTUCHARAL, BEHUR, HOSDURG. 3. BALAKRISHNA, S/O. AMBU, VALIYAVETTIL, MUTTUCHARAL, BEHUR, HOSDURG. 4. CHANDRAN, S/O. AMBU, VALIYAVETTIL, MUTTUCHARAL, BEHUR, HOSDURG. 5. BHARATHAN, S/O. AMBU, VALIYAVETTIL, MUTTUCHARAL, BEHUR, HOSDURG. SA NO.893/1996 2 6. PRAKASAN, S/O. AMBU, VALIYAVETTIL, MUTTUCHARAL, BEHUR, HOSDURG. (*)LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 6 AS PER ORDER ON CMP NO.1802/1997 DATED 29.10.1997. ADDL.R2 TO R6 BY ADV. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.T.K.VIPINDAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.893 OF 1996 -------------------------------------- Dated this the 13th day of March, 2009. JUDGMENT This Second Appeal is at the instance of the additional plaintiffs. Parties are referred to as plaintiffs and defendant as in the trial court for convenience. 2. The substantial questions of law raised for a decision are: (i) Were the courts below were right in holding that plaintiffs have no title to the suit property when the courts themselves concurrently find that Ext.A1 certified copy of the order of the Tahsildar, Hosdurg is a final record of right as per Section 29 of the Kerala Land Reforms Act (for short, “the Act”) read with Rule 26 of the Kerala Land Reforms (tenancy) Rules? (ii) Is not the purchase certificate evidenced by Ext.A2 conclusive proof regarding the title of plaintiffs especially when as per Ext.A5 the purchase certificate issued in favour of the defendant stood cancelled? 3. This litigation between the original plaintiff (husband of additional plaintiff No.2 and father of additional plaintiff No.3) and the defendant who are brothers started in the year 1978 by the original plaintiff instituting O.S.No. 118 of 1978 seeking a decree for prohibitory injunction in respect of the suit property, 3.25 acres claiming that he is in possession of the said property SA No.893/1996 2 having obtained it under an oral lease 'at or about 1956'. The defendant (he died pending this appeal - his legal representatives are impleaded) who admittedly owned property adjoining the suit property claimed that the suit property belonged to him and is in his possession. Learned Munsiff accepted the case of the original plaintiff and granted a decree. Defendant took up the matter in appeal as A.S.No.3 of 1981. First appellate court found that the defendant was in possession of the suit property and dismissed the suit making certain observations concerning the right, title and interest claimed by the original plaintiff over the suit property based on Exts.A1 to A3 ( in the present suit). Original plaintiff challenged the judgment and decree of the first appellate court in this Court in S.A.No.812 of 1984. This Court confirmed the judgment and decree of the first appellate court as per Ext.A6, judgment dated 28.3.1989. However, the right of the original plaintiff if any to institute suit for recovery of possession was safeguarded. Thereafter the original plaintiff filed O.S.No.292 of 1989 seeking recovery of possession of the suit property on the strength of his title. He produced Exts.A1 to A6. Ext.A1 is the C.C. of the order dated 2.3.1976 along with the C.C. of the application thereunder filed by the original plaintiff under Section 29 of the Act . Record of right was settled in the name of the original plaintiff allegedly in respect of the suit property. Thereafter in S.M.No.164 of 1978 the Land Tribunal as per Ext.A2, order dated SA No.893/1996 3 17.12.1978 allowed the original plaintiff to purchase the landlord's right allegedly in respect of the suit property. Ext.A3 is the purchase certificate dated 30.3.1979. To evidence payment of rent to the jenmi, original plaintiff produced Exts.A4, receipt dated 21.3.1977. In the meantime, defendant who claimed to be a cultivating tenant of the suit property obtained purchase certificate dated 3.10.1977 (Ext.B5) from the Land Tribunal. The order granting purchase certificate was challenged by the original plaintiff before the Appellate Authority(Land Reforms). The Appellate Authority vide Ext.A5, judgment dated 8.7.1982 set aside the order granting purchase certificate to the defendant. Defendant maintained that he is in possession as a cultivating tenant in respect of 3.25 acres in R.S.No.103 under a registered marupatt dated 20.4.1957 and later got the purchase certificate. He also claimed that at any rate, he has perfected title by adverse possession and the law of limitation. He proved Exts.B1 to B9. Exts.C1 to C4 are the reports and plans submitted by the advocate commissioner. Trial court found that it is not shown that Exts.A1 to A3 are in respect of the suit property. The suit ended in dismissal. First appellate court concurred with that. SA No.893/1996 4 4. It is contended by the learned counsel for additional plaintiffs/appellants that the courts below went wrong in not giving due weight to Exts.A1 to A5. Ext.A1 shows that the proceedings were initiated under Section 29 of the Act and going by the application, it was in respect of 3.25 acres in R.S.No.103/ Part. Under Sub-section (3) of Section 29 of the Act, the record of right “shall contain the description and extent of the land”. But Ext.A1 does not contain any such description except the extent of the land. True, in Exts.A2 and A3, the boundaries of property mentioned therein are given. It is pertinent to note that Exts.A2 and A3 are immediately before or after the litigation started between the original plaintiff and defendant in the year 1978. In K.Iswara Warriyar v. State of Kerala and others (1966 KLT 1051) relied on by the courts below it has been held that the record of rights when prepared will be an item of evidence in respect of the several matters required by the Act and the Rules to be specified therein. 'Record of rights' as understood under Section 29 of the Act must be one which complied with the mandatory requirements of Sub-section (3) of Section 29 of the Act including the description and extent of the land involved. It is not the case of the additional plaintiffs that before issuing purchase certificate in favour of the original plaintiff, any notice was given to the defendant. Therefore, Exts.A1 and A3 cannot bind the defendant. SA No.893/1996 5 5. It is true that as seen from Ext.A5, copy of the judgment of the Appellate Authority (Land Reforms) in A.A.No.1831 of 1982 that the purchase certificate (Ext.B5) issued to the defendant was set aside at the instance of the original plaintiff who claimed to be a cultivating tenant of the disputed property. But it is seen from Ext.A5 that the main reason for the Appellate Authority (Land Reforms) setting aside the order in favour of the defendant was because in O.S.No.118 of 1978 filed the original plaintiff against the defendant the learned Munsiff had granted a decree for prohibitory injunction as if the original plaintiff was in the possession of the property. Concededly, that judgment and decree were set aside by the first appellate court which was confirmed by this Court in S.A.No.812 of 1984 as seen from Ext.A6. Therefore, on the ground that the purchase certificate in favour of the defendant was cancelled, additional plaintiffs cannot contend that he was not the cultivating tenant of the suit property. 6. Courts below found against proper identification of the property. Exts.C1 to C4 show that the boundaries did not tally with the boundaries mentioned in Ext.A2. Only the southern boundary of the disputed property tallied, the property on the south being the property belonging to the original plaintiff. Admittedly, the property adjoining the suit property on one side is the SA No.893/1996 6 property which belonged to and is in the possession of the defendant. It is also not disputed by the additional plaintiffs that based on a marupatt executed by the original plaintiff, one Balan had filed a suit against the defendant as O.S.No.96 of 1974 and that suit ended in a dismissal as seen from Ext.B9. 7. So far as the alleged oral lease set up by the original plaintiff is concerned, what is stated in the plaint is that the oral lease was in or about 1956 and the only document produced by the original plaintiff to evidence payment of rent is Ext.A4 dated 21.3.1977 and as per which rent for the period from 1956-57 to 1977 was paid in lump. Ext.A5 comes just before the institution of O.S.No.118 of 1978 and much after the alleged marupatt executed by the original plaintiff in favour of Balan based on which Balan filed O.S.No.96 of 1974. Ext.A4 indicates that at no time before Ext.A4, original plaintiff had paid rent to the jenmi. It is difficult to believe that the original plaintiff who had not paid rent to the jenmi right from 1956 onwards, paid the rent in lump as per Ext.A4 on 21.3.1977 even after the entire rights of the landlord vested in the Government on 1.1.1970. Learned counsel for the additional plaintiffs submitted that the receipts after 1977 were produced before the first appellate court as additional evidence along with I.A.No.162 of 1995 but the same were not accepted. What is stated in the affidavit in support of the application as SA No.893/1996 7 regards the delay in producing the receipts is that those receipts could not be produced earlier since they were mixed up with old records and could be traced out only on the previous day of the filing of the application. But what is stated by PW1 in the evidence is that the receipts had been handed over to his advocate. In the circumstances first appellate court was justified in not receiving additional evidence. 8. At this stage, learned counsel for the additional plaintiffs made a fervent plea for remand of the case. I gave an anxious consideration of the request but, I am not inclined to think on the facts of this case that a remand is warranted at this distant point of time. The litigation in respect of the suit property started in the year 1974 by Balan who claimed under the original plaintiff. He lost it. Original plaintiff initiated proceedings of his own in the year 1978 claiming that he was in possession of the suit property and ultimately failed. In fact, a reading of Ext.A6, the copy of the judgment in A.S.No.812 of 1984 would show that even in that suit, identity of the property was hotly contested by both sides and the original plaintiff was not able to establish the same. This Court in Ext.A6, judgment observed in paragraph 4 thus: SA No.893/1996 8 “...... Exts.A4 and A5 have been held, rightly, not related to the plaint property, on the evidence on record.”. (Exts.A4 and A5 referred above are Exts.A2 and A3 in the present proceeding). I do not forget that this Court in paragraph 5 of Ext.A6 observed that: “ ............. It is unnecessary, therefore, to consider whether the defendant can rely on his purchase certificate Ext.B3 and whether Ext.B3 can have any validity now after it has been set aside by the appellate authority”. (for the reason of the finding of the learned Munsiff in O.S.No.118 of 1978 that the original plaintiff is in possession and, which was reversed by the first appellate court and confirmed by this Court as per Ext.A6). It was also observed by this Court in Ext.A6 that: “...... As this is a suit merely for injunction and it is unnecessary to decide the title of the contesting parties.” SA No.893/1996 9 9. I quoted from Ext.A6 only to show the dispute regarding identity of the property is not something that cropped up only in the present proceeding. Instead, that issue was hotly contested in the earlier litigation also and no effective steps were taken by the original plaintiff in the said proceedings and, in the case on hand as well to prove that Exts.A1 to A3 actually related to the suit property. In the circumstances, I do not consider it is necessary or justifiable to send back the case to the trial court for any purpose whatsoever. 10. No other point is raised for consideration. Resultantly, this Second Appeal fails. It is dismissed. No costs. C.M.P.No.1945 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.893/1996 10 Thomas P.Joseph, J. S.A.No.893 of 1996 JUDGMENT 13th March, 2009.