IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 RSA.No. 176 of 2011(D) ---------------------- AS.166/2005 of II ADDL. DISTRICT COURT, PALAKKAD OS.443/1997 of MUNSIFF COURT, CHITTUR .................... APPELLANTS/APPELLANTS/DEFENDANTS3,4,6,7,8. -------------------------------------------------------------- 1. MEENAKSHI, D/O.LATE VELAYUDHA MUDALIAR. 2. PERIYAPPAN @ SUBRAMANIAN, S/O.LATE VELAYUDHA MUDALIAR. 3. KALAMANI, DO.LATE VELAYUDHA MUDALIAR. 4. RAJU @ GURUDAS,SO.LATE VELAYUDHA MUDALIAR. 5. KITTAN,SO.LATE VELAYUDHA MUDALIAR. ALL ARE RESDING AT MUDALIAR THERUVU, VITHANASSERI, NEMMARA, CHITTUR TALUK, PALAKKAD-678 507. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): RESPONDENT/PLAINTIFFS & DEFENDANTS 2,5. ------------------------------------------------------ 1. RAMAKRISHNA THARAKAN, S/O.LATE SANKARA THARAKAN. 2. SIVAKUMAR, S/O.RAMAKRISHNA THARAKAN. 3. PUSHPALATHA,D/O.RAMAKRISHNA THARAKAN. 4. VINODKUMAR, S/O.RAMAKRISHNA THARAKAN. RESPONDENTS 1 TO 4 ARE RESIDING AT CHAPPAKKADU, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD-678 507. 5. PECHIYAMMAL, W/O.LATE VELAYDUHA MUDALIAR. 6. VAAMABHADRAN,S/O.LATE VELAYUDHA MUDALIAR, RESPONDENTS 5 &6 ARE RESIDING AT VALIYACHALLA, MUTHALAMAD AMSOM, CHITTUR TALUK, PALAKKAD0678 507. ADV. SRI.BINOY VASUDEVAN FOR CAVEATOR R1 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.176 OF 2011 --------------------------------------------- Dated 14th February, 2011 JUDGMENT Defendants 3,4 and 6 to 8 in O.S.443/1997 on the file of Munsiff's Court, Chittur are the appellants. Respondents 1 to 4 are plaintiffs. Respondents 5 and 6 are defendants 2 and 5. Original plaintiff Valsala instituted the suit, seeking a decree for recovery of possession on the strength of title with mesne profits. Plaintiff died during the pendency of the suit. Respondents 1 to 4 were impleaded as her legal heirs. Original defendant died during the pendency of the suit. Appellants and respondents 5 and 6 were impleaded as his legal heirs. Plaint schedule property is 8 cents in RSA 176/11 2 unsurveyed land in proposed survey No.809/4 of Muthalamada village. Plaint schedule property admittedly originally belonged to Venganadu Kovilakam on jenm right. It was obtained on kanam right by the family of deceased plaintiff. It was subsequently divided under Ext.A1 partition deed in 1958 whereunder J-schedule properties were allotted to deceased plaintiff and I-schedule properties to Dhakshayani. Subsequently plaintiff and Dhakshayani executed Ext.A2 exchange deed, whereunder I-schedule allotted to Dhakshayani was transferred to plaintiff and J-schedule which was allotted to plaintiff was transferred to Dhakshayani. Subsequently jenm right in respect of the properties was obtained by the plaintiff under Ext.A4 order of the Land Tribunal. Ext.A3 is the purchase certificate. Plaintiff would claim her title to the plaint RSA 176/11 3 schedule property being part of the property obtained under Ext.A2 exchange deed and Ext.A3 purchase certificate. It is contended that deceased defendant trespassed into the property and reduced it into his possession and plaintiff is entitled to recover the same on the strength of title. 2. Deceased defendant filed a written statement admitting that jenm right originally belonged to Venganadu Kovilakam. It is contended that in 1993 under Ext.B1, 16 cents of property was obtained under Tharikuthu right and since then defendant has been in possession of the property and plaintiff has no title to the property. Subsequently, additional written statement was filed by the legal heirs of the original defendant reiterating the contentions raised in the original statement. 3. Learned Munsiff on the evidence of RSA 176/11 4 PW1 and DW1 and Exts.A1 to A9 and B1 and B2, CW1 and Exts.C1 to C3 granted a decree for recovery of possession finding that additional plaintiffs have title to the plaint schedule property and they are entitled to recover possession of the same from additional defendants. The prayer for mesne profits was disallowed. The decree and judgment was challenged by the appellants before District Court, Palakkad in A.S.166/2005. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned Senior counsel appearing for the appellants and learned counsel appearing for respondents 1 to 4 were heard. 5. Learned Senior counsel appearing for appellants vehemently argued that plaintiffs RSA 176/11 5 failed to establish the identity of the plaint schedule property and though Commissioner demarcated the plaint schedule property as item No.3 in Ext.C2 plan, there is no evidence to fix the identity and so the decree granted is unsustainable. It was argued that as per the findings of the courts below the property obtained under Ext.A3 purchase certificate forms the property included in J schedule and 1/4th of item No.2 of J schedule and report of the Commissioner does not establish that properties were identified with reference to the boundaries shown in Ext.A2 or the purchase certificate. It was argued that the property was not measured with reference to boundaries shown in Ext.A2 exchange deed and therefore, it is not established that the disputed item No.3 marked in Ext.C2 plan forms part of the property covered by J schedule property or RSA 176/11 6 item No.2 of I schedule property or the property obtained under Ext.A3 and therefore, the decree is unsustainable. 6. Learned counsel appearing for the respondents pointed out that Ext.C1 report with the evidence of CW1 establishes that plaint schedule properties were identified with reference to the boundaries shown in Ext.A2 exchage deed and Ext.A3 purchase certificate. It was pointed out that DW1, third appellant, in cross examination admitted the boundaries with reference to Exts.A2 and A3 and in such circumstances, appellants are not entitled to contend that identity of the plaint schedule property is not fixed and when evidence establish that under Ext.A2 exchange deed, properties obtained by the deceased plaintiff and Dhakshayani were exchanged and thereafter under Ext.A4 order, the jenm right was assigned RSA 176/11 7 in favour of the deceased plaintiff, findings of the courts below that respondents 1 to 4 have title to plaint schedule property is perfectly correct and when the appellants have no right over the property, decree for recovery of possession is perfectly legal and warrants no interference. 7. Admittedly plaint schedule property originally belonged in jenm to Kovilakam. The property was outstanding in the possession of family of deceased plaintiff on kanam right. Though under Ext.A1, J-schedule was allotted to Valsala, the deceased plaintiff and I schedule to Dhakshayani, subsequently under Ext.A2 exchange deed properties were exchanged between them. Deceased plaintiff under Ext.A2 obtained the right over J-schedule as well as 1/4th right over item No.2 of I-schedule. Jenm right of the property was purchased under RSA 176/11 8 Ext.A4 order. Ext.A3 purchase certificate was also granted in favour of the plaintiff. When O.A was filed, Court receiver appointed in the partition suit instituted for division of the properties of Kovilakam was functioning. Ext.A8 is the receipt obtained for payment of pattam to the receiver by the plaintiff. Ext.A9 series are the basic tax receipts obtained for the property subsequent to Ext.A3. Title to the property covered by Ext.A3 as such is not disputed. Though it is contended that as the purchase certificate was obtained when there was a suit for partition by the jenmi family, it is seen that that suit for partition of the properties of Kovilakam, the landlord. Ext.A4 order was passed with the court receiver as the respondent representing the estate of the Kovilakam. In such circumstances, Ext.A3 purchase certificate RSA 176/11 9 cannot be challenged on the ground that purchase certificate was obtained during the pendency of the partition suit. 8. Whatever it be, it is pertinent to note that contention raised by the appellant was that they obtained property under Ext.B1 in 1993 on Tharikuthu right by Velayudhan, the deceased defendant. As rightly found by the courts below evidence establish that before 1958 property was outstanding in the possession of family of the plaintiff. In such circumstances, there cannot be a grant of tharikuthu right in 1993. Therefore, on the face of it appellants cannot claim any right over the said properties. 9. The only question is whether identity of the plaint schedule property is established. CW1 Commissioner identified the property and submitted Ext.C1 report and Ext.C3 RSA 176/11 10 plan. Argument of the learned Senior counsel is that the Commissioner has not properly identified the plaint schedule property and there is no basis for fixing plot No.3 as plaint schedule property. As rightly pointed out by the learned counsel appearing for the respondents 1 to 4, Exts.C1 and C2 with the evidence of CW1 establish that Commissioner identified the property with reference to boundaries shown in Exts.A2 and A3. The disputed property lies on the north-western portion of the property. The Commissioner has specifically reported that boundaries on the north and west tallies with the description of plaint schedule property and it tallies with the boundaries shown in Ext.A2 and A3. It is also pointed out by the learned counsel that during cross examination, DW1 unambiguously admitted the boundaries. In the RSA 176/11 11 light of the evidence of DW1, I have no hesitation to hold that as rightly found by the courts below item No.3 in Ext.C3 plan is the plaint schedule property. It forms part of the property obtained by the deceased plaintiff under Ext.A2 exchange deed and Ext.A3 purchase certificate. In such circumstances, when respondents 1 to 4 have title and it is proved that appellant has no right or title to that property, decree for recovery of possession granted by the courts below is perfectly correct and warrants no interference. No substantial question of law is involved in the appeal. Appeal is dismissed. Learned Senior counsel appearing for the appellants submitted that appellants are laboureres and they may be granted time to surrender possession of the property. Appellants are granted two months RSA 176/11 12 time to surrender vacant possession of the property provided they file an affidavit before the executing court within one week from today undertaking to unconditionally surrender the plaint schedule property on the expiry of two months from today. If they fail to file an affidavit, executing court to grant delivery of the property. M.SASIDHARAN NAMBIAR, JUDGE. uj.