IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 RFA.No. 354 of 2004(F) --------------------------------- OS.110/1982 of SUB COURT,THODUPUZHA .................... APPELLANTS/ADDITIONAL DEFENDANTS 2 TO 4 ---------------------------------------------------------------------- 1. A.P.MICHAEL, S/O. PETER, ARACKAPARAMBIL HOUSE, MANJUMEL P.O., ELOOR VILLAGE, ERNAKULAM DISTRICT. 2. VIMALA W/O.A.P.MICHAEL, ARACKAPARAMBIL HOUSE, P.O. ELOOR VILLAGE, ERNAKULAM DISTRICT. 3. FRANCIS S/O. LANAKUTTY, PUNNAKKAPARAMBIL HOUSE, THIRUMOOPPAM, VARAPUZHA, PARUR TALUK. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): PLAINTIFFS & DEFENDANT NO.1 --------------------------------------------------------------------------- 1. BHAGARAJ SINGH (DIED), S/O. VENUGOPAL SINGH RESIDING AT GHARUDALWAR ESTATE, POTTANKADU THAVALAM, RAJAKADU VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. ANGUBHAI, W/O. BHAGARAJ SINGH, AGED 49, RESIDING AT GHARUDALWAR ESTATE, POTTANKADU THAVALAM, RAJAKADU VILLAGE, UDUMBANCHOLA TALUK DEVIKULAM ARE REP.BY THEIR LAWFUL ATTORNEY C.G.MOHANACHANDRAN NAIR S/O. K.GOPALA PILLAI, ARAYAPPATTU VEEDU, LOTTAMKULANGARA KARA, SOUTH ARYAD VILLAGE, AMBALAPUZHA TALUK, ALLEPPEY DISTRICT, NOW RESIDING AT PANACHICKAL HOUSE, TEA COMPANY POTTANKADU P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT. R.F.A. NO.354/2004 3. B.ANGUBHAI W/O. LATE BHAGARAJA SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY SELAM. 4. B.VENUGOPAL SINGH S/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAAR, HASTHAMPATTY, SELAM. 5. B.PRATAP SINGH S/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 6. B.INDIRA D/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 7. B.MOHAN SINGH S/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 8. B.ASOK KUMAR S/O. LATE BHAGARAJ SINGH, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 9. B.SARAM SINGH S/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 10. J.SARALABHAI D/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 11. J.RAJESH (MINOR) REPRESENTED BY THE MOTHER SARALABHAI D/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 12. J.MONICA (MINOR) REPRESENTED BY THE MOTHER SARALABHAI D/O. LATE BHAGARAJ SINGH, C/O. B.ASOK KUMAR, 50A RAJA NAGAR, HASTHAMPATTY, SELAM. 13. JOSEPH @ JOY S/O. XAVIER, AGED 31, CHIRAKAL HOUSE, POTTANKADU THAVALAM, RAJAKAD VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTICT. R2 BY ADV. SRI. KOSHY GEORGE R3 RO R12 BY ADV. SRI.KOSHY GEORGE THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON IA. NO.2188/2004 IN R.F.A. NO.354/2004 DISMISSED 06/12/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.F.A. NO. 354 OF 2004 = = = = = = = = = = = = = = = Dated this the 6th day of December, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thodupuzha in O.S.110/82. The suit is one for recovery of possession on the strength of title with arrears of rent and damages. According to the plaintiffs, first plaintiff has obtained a lease over items 1 to 4 for cardamom cultivation from the department. Item No.5 was obtained by the 2nd plaintiff under a partition in her family. It is submitted that on 5.3.70 plaintiffs executed and registered a 'kuthakapathram' in favour of the defendant for a period of nine years on payment of rent of R.F.A. 354 OF 2004 -:2:- Rs.3,000/- per year. Now it is over that property the plaintiffs are claiming recovery of possession. Originally the first defendant contested the suit and now the present contesting defendants are intervenors. 2. Heard the learned counsel for the appellant as well as the respondent. I feel a peculiar situation has arisen in this case with respect to item Nos.1 to 4 of the plaint schedule. According to plaintiffs, items 1 to 4 were obtained by them under a lease agreement by the department. It was found by the department correctly or incorrectly that there had been violation of the terms of the lease and therefore they have terminated the lease in favour of the first plaintiff and it is contended that the contesting defendants had been given the lease of the property. R.F.A. 354 OF 2004 -:3:- 3. The learned counsel for the plaintiffs would submit that in a previous round of litigation this Court had found that it is not a lease but a licence and therefore there cannot be any violation of the terms of the contract of lease. But rightly or wrongly the department moved action terminating the lease of the plaintiff and it is under challenge and pending before this Court in the writ jurisdiction as W.P.C. 17510/05. So the title of the plaintiff is now hanging. 4. In a suit for recovery of possession also the Court has to take into consideration whether the plaintiff has got title to the property when a decree is granted in his favour. Unfortunately, the trial court has entered into a finding whether it is a lease or a licence depending upon the earlier ruling but without R.F.A. 354 OF 2004 -:4:- making the Government a party who had terminated the lease. It may be true that the said finding may have bearing on the issue but the decision cannot be rendered against a Department or a Government without impleading or getting it as a party. So everything depends upon the outcome of the writ petition. Therefore it is desirable in this case as well that the department is also made a party and the matter can be pursued when the judgment of this Court comes in the writ petition. So far as item 5 is concerned 2nd plaintiff has got title to the property under a partition deed of the year 1956. The contesting defendants are claiming right only by adverse possession. The trial court has considered it and found that adverse possession is not proved at all. When petitioner's possession is not proved the 2nd plaintiff is entitled to that R.F.A. 354 OF 2004 -:5:- relief with respect to that item. Further the Court below also verified the documents Exts.B15 to 17, 19, 22 and 23 and held that the defendants entitlement is not supported by those documents. 5. The trial court has held that there is no evidence to show that the 2nd defendant had obtained possession of plaint item 5 and perfected title by adverse possession and limitation. The Court held that “Apart from these tax receipts, which are very feeble pieces of material, nothing is available to prove the contention and found that no oral evidence has been adduced. So in the light of the fact that the 2nd plaintiff's claim stand satisfied by the document of 1956 and in the absence of any document on the side of the contesting defendants, it has to be held that the plaintiff R.F.A. 354 OF 2004 -:6:- is entitled to recovery of possession of item No.5 of the plaint schedule property. Therefore the appeal is disposed of as follows. (1) So far as it relates to items 1 to 4 are concerned, judgment and decree of the trial Court are set aside and the matter is remanded. The plaintiffs are directed to implead the department also as a party since it has cancelled the lease in their favour and thereafter pursue the matter which would depend upon the fate of the writ petition pending before this Court. (2) So far as item No.5 is concerned the finding of the trial court is confirmed and the plaintiffs are given a decree for recovery of possession of item No.5 of the property on the strength of title from the defendants. R.F.A. 354 OF 2004 -:7:- (3) The Receiver be directed to hand over possession of the property to the plaintiffs and he can be discharged after submission of proper accounts. Parties are directed to appear before the trial Court with respect to item Nos.1 to 4 on 10.1.2011. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.