IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 RSA.No. 801 of 2005() --------------------- AS.54/1997 of DISTRICT COURT, THALASSERY OS.59/1980 of PRINCIPAL SUB COURT, THALASSERY .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------- 1. KUNNATH CHAKKARAYAN YESHODA, D/O. CHANDU, AGED 68 YEARS, NO OCCUPATION, RESIDING AT ELAYAVOOR AMSOM, CHOVVA DESOM. 2. KUNNATH CHAKKARAYAN SREELEKHA, D/O. YESHODA, AGED 40 YEARS, NO OCCUPATION, RESIDING AT ELAYAVOOR AMSOM, CHOVVA DESOM, KANNUR TALUK. 3. KUNNATH CHAKKARAYAN AJITH, S/O. YESHODA, AGED 34, NO OCCUPATION, RESIDING AT -DO-. 4. KUNNATH CHAKKARAYAN AJITHA, D/O. YESHODA, AGED 32 YEARS, RESIDING AT -DO-. 5. KUNNATH CHAKKARAYAN ASHOKAN, S/O. YESHODA, AGED 30, NO OCCUPATION, RESIDING AT -DO-. 6. KUNNATH CHAKKARAYAN ARUNA, D/O. YESHODA, AGED 28, NO OCCOUPATION, -DO- -DO-. 7. KUNNATH CHAKKARAYAN SREERAJ, S/O. YESHODA, AGED 26, -DO- -DO-. 8. KUNNATH CHAKKARAYAN ANISH, S/O. YESHODA, AGED 24, RESIDING AT -DO- -DO-. BY ADV. SMT.VIDHYA. A.C RESPONDENT(S)/RESPONDENTS/DEFENDANTS 2, 3 AND 5 TO 11: ------------------------------------------------------ 1. ONATHAN KUNIMMAL PUTHIYAPURAYIL- LAKSHMANAN, S/O. KANNAN, TEACHER, RESIDING AT KADAMBOOR AMSOM DESOM, AGED 53. R.S.A.NO.801/2005 2. ONATHAN KUNIMMAL PUTHIYAPURAYIL- PRABHAKARAN, S/O. KANNAN, AGED 48, NO OCCUPATION, RESIDING AT KADAMBUR AMSOM, DESOM. 3. ONATHAN PUTHIYAPURAYIL KOUSU, D/O. KANNAN, AGE AND OCCUPATION NOT KNOWN, RESIDING AT -DO-. 4. ONATHAN PUTHIYAPURAYIL SOUMINI, D/O. KANNAN, AGE AND OCCUPATION NOT KNOWN, RESIDING AT -DO-. 5. ONATHAN PUTHIYAPURAYIL KAMALESH, S/O. KANNAN, AGE AND OCCUPATION NOT KNOWN, RESIDING AT KADAMBUR AMSOM, DESOM. 6. K.C. RAMAN, S/O. THALA, AGED 65 YEARS, NO OCCUPATION, KADAMBUR AMSOM,DESOM EDAKKAD. 7. K.C.GOVINDAN, S/O. THALA, AGED 63 YEARS, -DO- -DO-. 8. K.C. DEVAKI, D/O. THALA, AGED 63 YEARS, OCCUPATION NIL, RESIDING AT -DO-. 9. K.C. BALAN, S/O. THALA, AGED 59 YEARS, OCCUPATION NIL, -DO- -DO-. 7TH RESPONDENT DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 24.5.2010 IN I.A.NO.1081/2010 IN R.S.A.NO.801/2005. ADV. SRI.R.SURENDRAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010 ALONG WITH WPC NO.24413 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.801 OF 2005, CROSS OBJECTION NO.35 OF 2006 & W.P.(C).NO.24413 OF 2005 ----------------------------------- Dated this the 28th day of October, 2010 J U D G M E N T The above appeal has been filed by the plaintiffs in O.S.No.59 of 1980 on the file of the Sub Court, Thalassery. 2. The writ petition captioned above has been posted along with the appeal since the challenge raised therein related to the order passed by a reference court over the apportionment of compensation for the acquired land, the right, title and interest thereof are in dispute between the parties in the suit. The reference court had passed an order directing the parties to resolve their dispute over title by approaching the competent civil court to claim the compensation deposited before that court. Propriety and correctness of that order is challenged by one among the rival claimants in the R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 2 & W.P.(C).NO.24413/2005 above proceedings, who is the defendant in the suit, by filing the writ petition. 3. Suit was one for declaration of title and injunction. Two items of properties were included in the suit, described as plaint 'A' and 'B' schedule. Declaration of title was claimed over plaint 'A' schedule alone; and 'B' schedule was included in the plaint to show that in relation to the prior documents of title, some discrepancies had crept over the survey numbers in describing such properties, and as such, a cloud had been cast over the title of the plaintiffs in 'A' schedule property. The contesting defendants 1 and 2 had previously filed a suit for injunction against the 4th defendant, the karanavathi of the thavazhi of the plaintiffs, setting forth a claim of their possession and enjoyment over a portion of 'A' schedule property described in the present suit, and in that suit, a decree was granted in their favour. That decree was confirmed in appeal, turning down the challenge of the 4th defendant. It is also conceded that the plaintiffs in the R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 3 & W.P.(C).NO.24413/2005 suit had previously instituted a suit for injunction in respect of the same subject matter, but, later, that suit was withdrawn with liberty to file a fresh suit on the same cause of action. 4. After hearing the counsel on both sides and perusing the records, I find that a detailed narration of the claim set up by the plaintiffs over 'A' schedule property or contentions raised by the contesting defendants to resist the claim, is not necessary to consider the substantial questions of laws framed in the appeal for hearing, on which, notice was ordered to the respondents. 5. Substantial questions of law raised in the appeal are thus: (a) In the light of the judgment of this Honorable Court in C.M.A.No.222/89 and the cross objections making the remand an open remand and directing to dispose of the case afresh untrammelled by any of the observations in the judgment in A.S.No.247/87 were the courts below legally right in relying on observations R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 4 & W.P.(C).NO.24413/2005 and directions contained in the judgment in A.S.247/87 of Addl.District Court, Thalassery in deciding the suit after remand ? (b) In passing the impugned judgments have the courts below failed to follow the observations and directions of this Honourable Court in the judgment in C.M.A.222 of 1989 ? (c) In as much as the earlier remand was made on the ground that in order to have a proper adjudication in the case an Advocate Commissioner ought to be appointed, where the courts below legally right in dismissing the I.A.1406 of 1994 by the plaintiffs for appointment of an Advocate Commissioner for identification of properties with reference to the title deeds of the plaintiffs and defendants ? 6. Suit, after trial, was dismissed on a previous occasion, from which, the plaintiffs preferred an appeal as A.S.No.247 of 1987 before the District Court, Thalassery. The lower appellate court, after hearing both sides and re-appreciating the materials tendered, forming a conclusion that a proper identification of the suit property with reference to the title deeds produced by the parties is essential to resolve the real controversy arising in the R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 5 & W.P.(C).NO.24413/2005 lis, setting aside the dismissal of the suit, remitted the case to the trial court, allowing the plaintiffs to move an application for appointment of a commission to identify the plaint 'A' schedule property. That order of remand was challenged by the contesting defendants filing an appeal as C.M.A.No.222 of 1989 before this Court. The order of remand passed by the lower appellate court, it appears, on perusal of the judgment rendered in C.M.A., was not seriously assailed, but, a request was made that the remand should be open to enable both parties to lead further evidence to sustain their respective case. Allowing them to do so, the appeal was disposed directing the court below to consider the matter afresh untrammelled by the observations made in the judgment of the lower appellate court as expressed in paragraph 10 of its judgment rendered in A.S.No.247 of 1987. After the remand by the lower appellate court and while the C.M.A. was pending before this Court, the contesting defendants had moved an application for remitting the commission report for obtaining further clarifications on the report through the R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 6 & W.P.(C).NO.24413/2005 same advocate commissioner. By the time, the C.M.A. was disposed of, pursuant to orders passed on the application moved by the defendants, the commissioner, after conducting local inspection, had already filed a fresh report and plan, which were, later, exhibited in evidence as Exts.C4 and C5. After the C.M.A. was disposed and the suit was included in the special list for trial, plaintiffs moved two applications, one for removing the case from the list and the other for appointment of an advocate commissioner to conduct the measurement and identification of the suit property. However, when the case came up in the list as the plaintiffs remained absent, the suit and the aforesaid applications were dismissed. An application was moved by the plaintiffs later to restore the suit dismissed for default. That application being allowed, further evidence was taken in the case by the trial court, and after completion of such evidence by both sides, the suit was once again dismissed. An appeal preferred by the plaintiffs challenging the dismissal of the suit was turned down by the lower appellate court and, hence, this R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 7 & W.P.(C).NO.24413/2005 second appeal. 7. Now, in the facts and circumstances involved in the case, the first and foremost question emerging for consideration is whether there was denial of opportunity to the plaintiffs in identifying the suit property, which, no doubt, was vital for resolving the disputes involved in the case, after remand of the case with specific direction for identification of the property with reference to the title deeds and survey measurements. The grievance espoused by the learned counsel for the appellants/plaintiffs was that though the suit after dismissal for default was restored, the application moved by them previously for appointing an advocate commission, as and when the case stood posted in the special list, was not revived and considered, and that has resulted in miscarriage of justice. In the context, it has to be taken note that the suit was instituted as early in 1980, and after one round of litigation through various hierarchy of courts, it came back to the Sub Court, providing an opportunity R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 8 & W.P.(C).NO.24413/2005 to the plaintiffs to identify the suit property to sustain the relief of declaration of title canvassed by them over 'A' schedule property. Evidently, even when the contesting defendants had moved an application for remitting the report to obtain further clarification through the advocate commissioner, after conducting local inspection afresh, the plaintiffs did not raise a little finger or take any steps to have the measurement and identification of the property. Only when the case was included in the special list for trial, alongwith an application to remove the case from the list, they applied for appointment of a commission for identifying the property. Even then, they remained absent when the case was taken up for trial. Their application for restoration of the suit was later allowed does not ipso facto enable them to canvass that the previous application moved by them for appointment of an advocate commissioner, which had been dismissed, should also have been treated as revived. Plaintiffs have no case that after restoration of their suit, they had moved for a review of the order passed on the R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 9 & W.P.(C).NO.24413/2005 application for appointment of a commission and such a request was turned down by the trial court. Knowing fully well that without identification of the suit property, no decree could have been granted in their favour, it seems, the plaintiffs remained silent and did not take any further step to review the order passed on their application for appointment of a commission to identify the property. When such be the case, there is no merit in the grievance raised by the appellants/plaintiffs that the trial court went wrong in disposing the suit non-complying with the directions given in the remand order. When there was failure on the part of the plaintiffs to take necessary steps to identify the suit property, no duty was cast upon the court to appoint an advocate commission in the case. It has also come out from the evidence in the case that the land tribunal had issued a purchase certificate (B57) in favour of the 1st defendant, which relates to a portion of the plaint 'A' schedule property. One among the factors which was directed to be ascertained through the advocate commissioner by the lower appellate court when a R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 10 & W.P.(C).NO.24413/2005 remand order was passed in A.S.No.247 of 1987 was to examine whether there was overlapping of the property covered by B57 in relation to the property described as 'A' schedule in the suit, over which, the plaintiffs have sought for a declaration of title. The contesting defendants had contended that the Ext.B57 purchase certificate pertained to portions of 'B' schedule. Whatever be the identify of the property described under that purchase certificate, in the absence of proper identification of the suit property showing that no portion of the property covered by Ext.B57 is covered by 'A' schedule, in the nature of the dispute involved, the court could not have granted a declaration of title over 'A' schedule, in favour of the plaintiffs. The presumption to be drawn under Section 72 (k) of the Kerala Land Reforms Act that the assignee in whose favour Ext.B57 purchase certificate had been issued has obtained valid and legal title over the property under the certificate cannot be ignored. Such being the fact situation, the non-identification of the suit property by the plaintiffs is fatal to their claim for declaration of title, and on R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 11 & W.P.(C).NO.24413/2005 that solitary ground itself, they were liable to be non-suited. So much so, I find that the substantial questions of law raised in the case have to be answered against the appellants/plaintiffs, and the dismissal of their suit has only to be upheld. There is no merit in the appeal, and it is liable to be dismissed. 8. Cross objections have been filed in the appeal by the 1st respondent as against the finding rendered by the lower appellate court overruling the challenge raised against the entertainability of the suit claim as barred by res judicata, for the reason such a plea was not raised in the written statement nor supported by any documentary materials tendered in the case. No doubt, a plea based on res judicata is a mixed question of fact and law and it has to be pleaded and established by materials. In the given facts of the case where it is found that the plaintiffs are not entitled to the reliefs canvassed in the suit, and further, as it is noticed that the plea of res judicata was raised with reference to the dismissal of the prior suit for R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 12 & W.P.(C).NO.24413/2005 injunction and the present suit is one based on title, I find the cross objections filed by the 1st respondent challenging the findings of the lower appellate court has no legal basis or merit. At any rate, where the plaint claim has been found unsustainable and the dismissal of the suit has only to be upheld, further scrutiny of the cross objections of the 1st respondent is uncalled for. 9. The writ petition has been filed by the 2nd defendant in the suit against the judgment rendered in the reference made to the court under Section 30 of the Land Acquisition Act with respect to the acquisition made over a portion of the property covered by the suit. In view of the disputes between the parties to the suit, the Land Acquisition Officer had referred the matter for adjudication on the question of title over the acquired property to the reference court, and it was received and numbered as L.A.R.No.149 of 2003. The reference court, it is seen, after taking evidence, has directed the parties to prove R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 13 & W.P.(C).NO.24413/2005 their entitlement to the compensation amount, which was deposited before the court, by filing a suit for establishing their right, impleading all necessary parties. Correctness, legality and propriety of that decision is challenged by filing the above writ petition invoking the supervisory jurisdiction vested with this Court. The reference court has abdicated its jurisdiction in directing the parties to file a suit to prove their entitlement to collect the compensation amount, is the submission of the learned counsel for the writ petitioner/2nd defendant in the suit. 10. Where the Statute contemplate of a reference to a court to decide the apportionment of compensation in the event of disputes over the title to the acquired property whether that reference court can direct the parties to approach the civil court to determine the disputed question of title as to who among the rival claimants is entitled to claim the compensation is the question arising for consideration. In Mary Philip v. The R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 14 & W.P.(C).NO.24413/2005 Kerala State and another (2006 (3) KLJ 716), this Court has held that in the absence of an award under Section 26 of the Land Acquisition Act, the claimant cannot be compelled to file appeal under Section 54 of the Act paying court fee. In such a case, it has been held the only conclusion that can be reached is that the reference court has refused to exercise the jurisdiction vested with it. Such being the case, the order of the reference court can be interfered with in exercise of the powers of this Court under Article 227 of the Constitution of India. The order passed by the reference court impugned in the writ petition directing the parties to approach the civil court and file a suit to prove their entitlement to the compensation, is not only erroneous but tantamounts to abdication of jurisdiction, by which, it was duty bound to answer the reference deciding the disputed question of title as between the claimants over the acquired property in respect of which compensation was deposited before that court. Setting aside P3 order, the reference court is directed to take back the file, consider it R.S.A.NO.801/2005, CROSS OBJECTION NO.35/2006 15 & W.P.(C).NO.24413/2005 afresh and answer the reference in accordance with law. 11. Parties are directed to appear before the reference court on 29.11.2010; and, the reference court is directed to take every endeavour to dispose the case as expeditiously as possible, at any rate, within a period of six months for the date of the receipt of the copy of this judgment. The appeal R.S.A.No.801 of 2005 and Cross Objection No.35 of 2006 are dismissed directing both sides to suffer their respective costs. Writ petition is allowed subject to the directions stated above. S.S.SATHEESACHANDRAN JUDGE prp