IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 AS.No. 232 of 1996(A) -------------------------- OS.56/1983 of SUB COURT, MANJERI .................... APPELLANT(S)/DEFENDANTS 3 AND 6 -------------------------------------------- 1. T.PARAMESWARAN, S/O.KELU, AGED 44 YEARS, CHALIPADAM, P.O. ERANJIKODE, (VIA) EDAVANNA, MANJERI. 2. KOTTAYIL MAMMED, S/O.ALI MAMMAD, AGED 60 YEARS, KUNDUTHODE P.O., ERANJIKODE, (VIA) EDAVANNA, MANJERI. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 1,2,4,5 & 7 TO 9 AND 11 TO 25 ---------------------------------------------------------------------------- *1. KUMHIRAMAN NAIR,S/O.KALLIANI AMMA, AGED 79 YEARS, RESIDING AT TIRUR TALUK, TANUR VILLAGE, RAMAMANGALAM DESOM.(DIED) LR'S IMPLEADED. **2. A.UNNEERIKUTTY, S/O.ALAVI, ELANHIKODE DESOM, EDAVANNA AMSOM, ERNAD TALUK, P.O. ERNHIKODE. DIED. LR'S IMPLEADED. 3. K.VISWANATHAN, S/O.RAMANKUTTY, PATHAPIRAYAM DESOM, EDAVANNA AMSOM, P.O.PATHAPPIRIYAM. 4. KALLUVETTIL AHAMMED KUTTY, S/O.KUNHALANKUTTY, -DO- -DO- ***5. K.P.ABDUL RAHIMAN @ KOYA, S/O.ABOOBACKER HAJI, -DO- -DO- (STRUCK OFF) ........2/-... ...2... 6. KARIMBANAKKAL ABDURAHIMAN, S/O.ALI MAMMAD, PATHAPIRIYAM DESOM, EDAVANNA AMSOM,P.O.PATHAPPIRIYAM. 7. ARANHIKKAL HYDERALI, S/O.UNNEEN KUTTY, -DO- -DO- 8. ARANHIKKAL ABOOBACKER, S/O.UNNEEN KUTTY, -DO- -DO- 9. M.NADI, S/O. MANJERI KANAKKAN KUNHAN, -DO- -DO- 10. M.CHAKKIKUTTY, D/O.MANJERI KANAKKAN KUNHAN, -DO- -DO- 11. A.MOHAMMED, S/O.ARANHIKKAL ALAVI, -DO- -DO- 12. A.MOYIN KUTTY, S/O.ARANHIKKAL ALAVI, -DO- -DO- 13. REMADEVI. TEACHER, D/O.MANJERI CHEROOTTY, -DO- -DO- 14. RAMANKUTTY, BANK CLERK, RESIDING AT -DO- -DO- 15. RADHABAI, D/O.M.CHEROOTTY, -DO- -DO- 16. NARAYANAN, S/O.M.CHEROOTTY, -DO- -DO- 17. NEELAKANDAN, S/O.M.CHEROOTTY, -DO- -DO- 18. SANKARAN, S/O.M.CHEROOTTY, -DO- -DO- 19. SURENDRAN, S/O.M.CHEROOTTY, -DO- -DO- 20. SUNILKUMAR, S/O.M.CHEROOTTY, -DO- -DO- 21. MANOJAN, S/O.M.CHEROOTTY, -DO- -DO- (STRUCK OFF) *** THE NAMES OF RESPONDENTS NO. 5 AND 21 ARE STRUCK OFF FROM THE PARTY ARRAY OF THIS APPEAL AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 29/09/2009 IN I.A.NO.3161/2009. 22. LAKSHMI, D/O.KATTLAPURATH RAMANKUTTY, -DO- -DO- 23. CHANDRASEKHARAN BY MUKTHIYAR LAKSHMI, -DO- -DO- ......3/-... ...3... * ALLD. RESPONDENTS 24 TO 26 IMPLEADED 24. K.T.PADMAVATHY AMMA, W/O.LATE KUNHIRAMAN NAIR, RESIDING AT THIRUVATH AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 25. K.T.UNNIKRISHNAN, S/O.LATE KUNHIRAMAN NAIR, -DO- -DO- 26. JYOTHI LAKSHMI, D/O.LATE KUNHIRAMAN NAIR, -DO- -DO- LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 24 TO 26 AS PER ORDER DATED 17/02/1997 ON C.M.P.NO.4881/1996. ** AS ADDL. RESPONDENTS (R27-R33) IMPLEADED 27. FATHIMA, W/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 28. NAFEESA, D/O. UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 29. ABDULLA, S/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 30. ABU JAMEELA, D/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 31. SAKEENA, D/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 32. SALMA, D/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. 33. SUNITHA, D/O.UNNEERIKUTTY, KUNDUTHODE, POST ERANJIKKODE – 76 541. ** LEGAL REPRESENTATIVE, OF DECEASED RESPONDENT NO.2 ARE IMPLEADED AS ADDL. RESPONDENTS R27 TO R33 ORDER DATED 24/06/2010 ON C.M.P. NO.4216/2001 R24 TO 26 BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.M.R.GOPALAKRISHNAN NAIR SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/11/2010, ALONG WITH AS NO.492 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P.NOS. 1531/1996, 3216/1996, 100/1997, 6357 IN AS NO.232/1996. DISMISSED 11/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. ........................................... A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 ............................................. Dated this the 11th day of November, 2010. J U D G M E N T A.S.NO.232 of 1996 is filed by defendants 3 and 6 against the judgment and decree of the Subordinate Judge's Court, Manjeri in O.S.No.56/1983 and A.S.NO.492 of 1996 is filed against the same judgment by the plaintiff against the dis allowance of mesne profits. 2. Let me first confine to the appeal preferred by defendants 3 and 6 in the suit. So far as the 6th defendant is concerned, it is submitted that he had purchased the property in the plaintiff's possession and therefore the matter between the plaintiff and the 6th defendant is settled. Therefore it is recorded and it is made clear that the plaintiff is not entitled to recovery of the property which is transferred in favour of the 6th defendant. 3. Now what survives for determination is the case of the third defendant. It is the case of the plaintiff that the plaint schedule properties had been taken on lease from : 2 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 Puthiya Kovilakam and ultimately by virtue of a partition deed in the year 1985 and after the institution of the suit, the plaintiff has been alloted the properties. The property claimed by the third defendant is said to be included in item 5 of the plaint schedule by the plaintiff comprised in Sy.No.603/4. The contention of the defendants 2 and 3 with respect to this property in para-5 of their written statement is that they had included a schedule to their written statement and they are claiming item 2 of the schedule property comprised in Sy.No.603/4 known as Daivakandi parambu having an extent of 26 cents. According to them, the said property belonged to Puthiya Kovilakam and there from certain Harijans had taken lease of the property and from those persons one Ayidru, Viswanathan (D12) and Koru had taken lease of the property and that they had obtained a certificate of purchase as per the proceedings in O.A.No.8243/1976 and thereafter they had transferred the right of this 26 cents and other items in favour of the third defendant by virtue of the document : 3 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 No.1510/86 and thereby the 3rd defendant is claiming absolute right and possession over the property. To analyse the case of the plaintiff and the defendants reference to certain documents are necessary. Ext.A1 is a document of the year 1925 executed between Puthiya Kovilam and the family of the plaintiff. It is a lease deed. It can be seen that item 42 of Ext.A1 is പതനകള കട യ ര പ in Sy.No.64/1 having measurement of 48 koles east west and 36 six feet koles north south having a total extent of 1 acre and 44 cents. It is seen that with respect to these properties there had been a suit for eviction and by virtue of the decree in O.S.No.553/1925 these properties were delivered and item 28 therein is item 42 mentioned in Ext.A1. It can also be seen from Ext.A11 that Sy.No.64/1 is later changed as 603/3 and 603/4 having an extent of 1 acre and 8 cents and 26 cents respectively. Therefore Exts.A1,A2 and Ext.A4 would reveal that the property obtained by the plaintiff's family comprised in Sy.No.64/1 is 1 acre and 34 cents. The total extent of that Survey numbers is also the same. It is true : 4 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 that the documents show an extent of 1 acre and 44 cents by multiplication but the adangal extract shows only 1 acre and 34cents. Now the third defendant is claiming right over Sy.No.603/4. But this Sy.No.603/4 forms part and parcel of old survey No.64/1. It is the property that was the subject matter of lease under Ext.A1 and the plaintiff's family had obtained delivery of the property by virtue of Ext.A2 in O.S.No.553/1925. So the plaintiff's title remains proved. 4. It is in this background we have to consider the case of the third defendant. Defendants 2 and 3 in the joint written statement conveniently avoided the name of the persons who had alleged to have taken lease from Puthiya Kovilakam and just mentioned some Harijans. It is from them it is alleged that the predecessor in interest of the third defendant has taken the lease. They had obtained a certificate of purchase with respect to this property. It has to be remembered that neither the plaintiff nor any members of his family are made parties to that proceedings. : 5 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 It is a well settled principle that unless a personal notice is issued as contemplated under Section 72(F)(3) of the Kerala Land Reforms Act, a certificate of purchase will not be binding on all the persons. It is true that the Supreme Court in the decision reported in Mathew v. Taluk Land Board (1979 KLT 601) has stated that a certificate of purchase is a conclusive prove of tenancy unless it is inaccurate on the face of the record. So far as the present certificate of purchase produced by the third defendant is concerned, it has to be stated that it is inaccurate so far as it relates to the plaintiff because the plaintiff was not a party to the proceedings. It is true that they are not claiming tenancy under the plaintiff. When the third defendant is setting up a rival title through his predecessor in interest, there must be some materials to establish the same. As stated by me earlier, the certificate of purchase will not bind the plaintiff. We do not find even a scrap of paper being produced to show possession of the predecessor in interest of the plaintiff or from the predecessor who are alleged to : 6 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 have taken lease of the property from Puthiya Kovilam. The document produced as revenue receipt is a consolidated payment of revenue for 15 years after purchasing the property by the third defendant. It is more so for the reason that it is paid after the institution of the suit. Even the purchase is only after the institution of the suit. The documents which are relied upon by the third defendant does not really go to show any semblance of a right especially in the backdrop of Exts.A1,A2 and A4. 5. Therefore, I hold that the third defendant is not entitled to the right whereas the plaintiff has succeeded in proving the right and so this Court cannot find fault with the trial court for granting recovery of possession with respect to 26 cents of land claimed by the third defendant as well. Therefore the appeal filed by the third defendant fails and it is dismissed. So far as the 6th defendant is concerned, I have already stated that since the matter is settled, it has become binding on the plaintiff. 6. Now let me consider about the mesne profits. It is : 7 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 true that proper materials are not produced. But quantification is a matter which is to be relegated under Order 20 Rule 12 of the C.P.C. The person who is liable alone is to be decided. The plaintiff has instituted the suit against the first defendant alone to start with. He had also claimed profits from him to start with. It is submitted that a receiver was appointed to the property from the year 1992 onwards and therefore the question of mesne profits will arise only at the most from the date of suit till appointment of the receiver. I do not want to refer it back further before the institution of the suit. It is the first defendant who had transferred the properties. Therefore since it is found that the first defendant is not entitled to any legal right, his occupation of the property is only that of a trespasser who is liable to pay damages in the form of mesne profits. Therefore I hold that the decree of the trial court disallowing mesne profits is not proper and the plaintiff is entitled to get mesne profits from the first defendant. His personal properties and assets shall be liable : 8 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 for the same but the quantum of mesne profits has to be decided on an application made by the plaintiff under Order 20 Rule 12 of the C.P.C. So the appeal, A.S.No.492/1996 is allowed to that extent. 7. The learned counsel for the appellant in A.S.No.232/1996 had raised a plea of adverse possession and limitation. As stated by me earlier, the third defendant is the purchaser of the property only after the institution of the suit, the document of title relied upon is only a certificate of purchase which I have found is not binding on the plaintiff. Except that document, not even a single piece of paper is available to show that predecessor in interest of the third defendant had been in possession of the property. When it is so, statutory compliance or hostile animus or the uninterrupted continuous possession as of right is not established and therefore the plea of adverse possession is also found against. 8. In the result, A.S.NO.232 of 1996 is dismissed making it clear that as the matter between the 6th defendant : 9 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 and the plaintiff is settled, the plaintiff is not entitled to get recovery of that property from the 6th defendant. The appeal filed by the third defendant stands dismissed. The judgment and decree of the trial court disallowing mesne profits is set aside and the plaintiff is granted a decree for mesne profits from the date of suit till the receiver took possession of the property from the first defendant and his assets. The quantum of mesne profits shall be decided in the execution petition filed under Order 20 Rule 12 of the C.P.C. I make it very clear that this judgment will not stand in the way of any possible settlement between the plaintiff and the third defendant. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 10 : A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.232 OF 1996 & A.S.NO.492 OF 1996 ............................................. 11th day of November, 2010. J U D G M E N T