IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 SA.No. 508 of 1995(B) ------------------------------- AS.306/1988 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.15/1985 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): APPELLANT/ PLAINTIFF ----------------------- U.GANGADHARAN, A.P. 229/4/B, PALLITHARA KADAYARA VEEDU, KALAHAKKAL, KARAKULAM, THIRUVANANTHAPURAM (DIED) ADDL. APPELLANTS 2 TO 10 ARE IMPLEADED 2. RAJAMMA W/O. U.GANGADHARAN MOOTHALATHU PALLITHURA KADAYIL VEEDU, KALATHUKAL, KARAKULAM P.O, TRIVANDRUM. 3. VISWAMBHARNAN G., S/O. U.GANGADHARAN KALLAMPALI, PERIYAMADAM LANE, SREEKARIYAM, TRIVANDRUM. 4. SADANANDAN.G, S/O. U.GANGADHARAN, MOOTHALATHU PALLITHURA KADAYIL VEEDU, KULATHUKAL, KARAKULAM P.O., TRIVANDRUM. 5. SAROJINI.R., D/O. U.GANGADHARAN, THALAKKOTTUKONAM, KAVUMPRAM, KARAKULAM P.O., KULATHUKAL, TRIVANDRUM. 6. SREEMATHI, S/O. U.GANGADHARAN, THURATTAYIL, ESTATE LANE, KACHANI P.O., KALATHUKAL, TRIVANDRUM. 7. SUDHA.R., S.S.AUTO SERVICE CENTRE, OPP. INDIAN OIL PETROL PUMP, MEDAYIL VEEDU, MEDICAL COLLEGE P.O., TRIVANDRUM 8. SATHYENDRAN, S/O. U.GANGADHARAN, MUTHALATHU PALLITHURA, KADAYIL VEEDU, KULATHUKAL, KURAKULAM P.O., TRIVANDRUM. S.A. NO.508/1995 9. VIJAYAKUMAR G. DO. DO. 10. GIRIJA , DO. DO. ADDL. R2 TO R10 ARE IMPLEADED AS PER ORDER DT.05.07.2005 IN I.A. 1154/2005 BY ADVS. MR R.SANKARANARAYANA IYER, MR.S.SHYAM MR.N.SUKUMARAN MR.BOBBY MATHEW KOOTHATTUKULAM MR.SAJI VARGHESE KAKKATTUMATTATHIL MR.LATHEESH SEBASTIAN RESPONDENT(S): RESPONDENT/ DEFENDANT --------------------------- SUNFLAG NYLONS LIMITED, HAVING ITS REGISTERED OFFICE AT KESTON ROAD, KOWDIAR REP.BY ITS MANAGING DIRECTOR. BY ADVS. MR.G.S.REGHUNATH MR.K.K.BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ----------------------------------------------- S.A. NO. 508 OF 1995 ----------------------------------------------- Dated this the 27th day of May, 2009 JUDGMENT The defeated plaintiff in a Suit for declaration of title and possession, in both the Courts below, is the appellant in this Second Appeal. The case of the plaintiff, in brief, is as follows: The plaint schedule property belonged to deceased Ummini, the father of the plaintiff, having been obtained the same as his share in an oral partition. The father of the plaintiff was in absolute possession and enjoyment of the property. While so, he executed a deed of Otti and Kuzhikanam in favour of one Kali Parvathi and Velayudhan Krishnan as per document No.3751/1107 M.E. After the mortgage, the said Kali Parvathi and Velayudhan Krishnan were in absolute possession and enjoyment of the schedule property and while so, in 1122 the said Kali Parvathi and Velayudhan Krishnan executed a release of the Otti kuzhikanam right in favour of the plaintiff, as per document No.691/1122. Ever since the release deed, the plaintiff has been in absolute possession and enjoyment of the schedule property and has been dealing with the same as absolute owner thereof. No one else has any manner of right, S.A.508/95 B 2 title, interest or possession over the schedule property or any part thereof. The defendant's agents and employees have been constantly harassing the plaintiff to execute a sale deed in their favour, to which the plaintiff refused. On 10-1-1985, the defendants along with their agents attempted to trespass into the plaint schedule property alleging that they have purchased the same. Their attempt was prevented by the timely intervention of the plaintiff and his relatives. The defendant has no manner of right title, interest or possession over the plaint schedule property. They have no right to trespass upon the property or to alter its boundaries or to put up any construction or to commit waste in the property. The defendant is highly influential and it may go to any extent. The plaintiff apprehends that the defendant may commit the illegal acts unless restrained by the court. By the attempt to trespass upon the property and also claiming right over the same, the defendant has case a cloud upon the plaintiff title over the schedule property and the plaintiff is entitled to have his title declared. Therefore, it was prayed that the plaintiff's title in the schedule property may be declared and the defendant may be restrained from trespassing into the schedule property by decree or permanent injunction. 2. The respondent contested the Suit, inter alia, denying title and possession. It was the case of the respondent that the S.A.508/95 B 3 respondent is a Public Limited Company in the joint sector formed for establishing a project estimated to cost over Rs.49 Crores and an area of about 16 Acres for that purpose has been purchased from the owners through the good offices and services of the Kerala Government Revenue Officers. Except for 40 cents, out of the total area, the whole property was conveyed by the several owners to the respondent in June, 1984 and immediate possession over the entire area demarcated inclusive of the said 40 cents was given to and taken by the respondent. It is stated that in June, 1984, the occupier of the said 40 cents was only a tenant entitled to fixity of tenure under the Kerala Land Reforms Act. The appellant represented to the Minister for Industries objecting to the payment of sale consideration to the tenant on the ground that the latter had not acquired jenmom right over the said property. It is stated that the Land Tribunal issued Certificate of Purchase in respect of 52 cents in Survey No.2112/3 in favour of the occupier tenant, C. Bahuleyan and that the respondent was in possession of the S.A.508/95 B 4 entire 16 Acres from June, 1984. 3. The appellant examined Pws. 1 and 2 and marked Exts.A1 to A4. Ext.A1 is Otti kuzhikkanam deed executed by Ummini in favour of K. Parvathy and V. Krishnan dated 28.11.1107 (ME). Ext.A2 is a Release Deed executed by K. Parvathy and V. Krishnan in favour of the appellant, dated 21.2.1122 (ME). Ext.A3 purports to be tax receipt dated 22.6.1122 (ME). Ext.A4 is the Judgment in OS No.16 of 1970. The respondent examined one of its Officers and produced Exts.B1 to B7. 4. The Trial Court considered the entire matter and came to the conclusion, inter alia, that Exts.A1 to A3 are not conclusive proof of title. The trial court found that the evidence of Pws.1 & 2 do not inspire confidence in regard to the possession of the property by the appellant. It took note of the fact that both the appellant as also the respondent produced tax receipts. Ext. A3, as already noted, is of the year 1947. Appellant was not in a position to produce any tax receipt after S.A.508/95 B 5 the point of time. Exts.B4 to B6 are tax receipts of the years 1982, 1973 and 1984 respectively, produced on behalf of the respondent. It is also found that Ext.B3 which is the Certificate of assignment issued by the Land Tribunal to Shri Bahuleyan, who is cited as the predecessor in interest of the respondent, has not been impugned by the appellant. It was noted that unless the Purchase Certificate is set aside, the title would stand in favour of the assignee under Section 72F of the Land Reforms Act. Moreover, the appellant has admitted in Exts.B1 Petition and B7 Suit Notice that the defendant had intended to purchase the land including the plaint schedule property. The First Appellate Court has confirmed the findings. 5. I heard Shri S. Syam, learned counsel for the appellant and also the learned counsel appearing on behalf of the respondent. 6. The appellant has purported to raise the following as substantial questions of law: “(i) Whether a purchase certificate like Ext.B3 granted by the Land Tribunal in a suo motu S.A.508/95 B 6 proceeding is binding on a person who is not a party to it ? Is it obligatory on the affected party to move for setting it aside ? (ii) Is not ancient documents like Exts.A1 to A3 sufficient and satisfactory proof for title and possession pleaded on their basis ? (iii) When the dispute regarding title is in respect of a portion of a larger extent comprised in a particular survey number, is it not obligatory to locate and identify the property by issuing a Commission ? (iv) Are not the findings of the Courts below perverse ?” 7. I would think that there is no merit in the Second Appeal. As far as possession goes, apart from Ext.A3 and the testimony of Pws.1 and 2, there is no evidence. It was for the appellant to take steps to get a Commission issued. He has no case that despite applying for appointing a Commission, that was refused by the Court. In this context, it is also worthy to reiterate, as noted in the Judgments under attack, that Ext.A3 purporting to be a tax receipt produced in support of the alleged S.A.508/95 B 7 possession of the appellant, is of the year 1947. Absolutely, no evidence is forthcoming to show that the appellant was in possession of the said property. Furthermore, when the appellant was examined as PW1, he has admitted that the property on the western side belonged to Shri Bahuleyan. He would submit that he does not know whether it is in the same survey number. He has also stated that Shri Bahuleyan has constructed a building in the property about ten to twelve years back and the appellant did not obstruct him. By no stretch of imagination, can it be said that the finding that the appellant could not prove his possession, is a perverse one. Essentially, the findings are findings of facts and they certainly do not warrant any interference in the limited jurisdiction contemplated by Section 100 of the Code of Civil Procedure. Be it a suo motu proceedings, Ext.B3 Certificate of assignment has the effect which Section 72F of the Land Reforms Act declares. The suggestion that identity of the property was not proved is meritless. The appellant himself in Ext.B1 has stated that one S.A.508/95 B 8 Bahuleyan is understood to have created a fraudulent and false document and that he is attempting to snatch away the price of the property of the appellant. I would think that the findings as regards title and possession rendered by both the courts below concurrently do not call for interference. I see no merit in the Second Appeal and it is dismissed. I.A. No.516/07 is also dismissed. Sd/= K.M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge S.A.508/95 B 9 S.A.NO. 508 OF 1995 B JUDGMENT 27th May, 2009