IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 SA.No. 225 of 1994(B) ------------------------------- AS.236/1992 of PRL.SUB COURT,THALASSERY OS.36/1987 of MUNSIF COURT, KUTHUPARAMBA .................... PLAINTIFF/ APPELLANT/ APPELLANT ------------------ PANNIYODAN KUNHIRAMAN NAMBIAR, THOTTAENKERY AMSOM AND DESOM, TELLICHERRY. BY ADV. SRI.V.SIVASWAMY SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER RESPONDENTS/ RESPONDENTS/ RESPONDENTS ----------------------- 1. CHATHOTH VELLUVA CHERIYA NARAYANAN NAMBIAR, SON OF KRISHNAN NAMBIAR, THOTTENKERY AMSOM AND DESOM, TELLICHERRY (DIED). 2. MAYILAPRAVAN LAKSHMI AMMA, THOTTENKERY AMSOM AND DESOM, TELLICHERRY. ADDL. RESPONDENTS 3 TO 6 ARE IMPLEADED. 3. MILAPRAVAN PRAKASAN, S/O. DO. DO. 4. MILAPRAVAN PRADEEPAN, DO. DO. 5. MILAPRAVAN PREETHA, D/O. DO. DO. 6. MILAPRAVAN LATHA, D/O. DO. DO. LRS OF DECEASED R1 ARE IMPLEADED AS ADDL. R3 TO R6 AS PER ORDER DT. 7.10.97 ON CMP. NO.1597/97. R1 & R2 BY ADV. SRI.T.A.RAMADASAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.225/1994 JUDGMENT APPEAL IS DISMISSED FOR DEFAULT. 01.04.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO. 225 OF 1994 ------------------------------------------ Dated 1st April 2008 J U D G M E N T Plaintiff in O.S.36/1987 on the file of Munsiff court, Kuthuparamba is the appellant. Defendants are the respondents. On the death of second respondent, respondents 3 to 6 were impleaded as the legal heirs. Plaint A schedule property is 23 cents in R.S.No.131 of Thillankeri village, old survey Number being 178/1. Admittedly plaint schedule property originally belonged in jenm to Thillankeri Devaswam. According to the appellant as per an oral lease Narayanan Nambiar obtained 47 x 11 ¾ six feet koles (about46.02 cents) from the Devaswom. Subsequently under Ext.A1 assignment deed dated 8/2/1950 the lease hold right was purchased by Chathoth Velluva Kunhappa Nambiar and Kunhiraman Nambiar. It was contended that subsequently one half right of Kunhappa Nambiar was assigned in favour of Madhusoodanan Nambiar under Ext.A2 dated 1/8/1951 and later appellant purchased that right from SA 225/94 2 Madhusoodanan Nambiar under Ext.A3 assignment deed on 12/6/1957. It is the further case that subsequently in 1959 there was an oral partition whereunder eastern one half right of the leasehold property was allotted to the share of the appellant and western one half to the share of Kunhiraman Nambiar. Earlier to that, appellant had executed Ext.B1 assignment deed dated 7/4/1958 in favour of his brother-in-law, Kelu Nambiar. It was contended that possession continued with the appellant and later Kelu Nambiar assigned his rights in favour of Narayani Amma the mother of the appellant under Ext.A4 assignment deed dated 9/12/1959. Narayani Amma executed Ext.A12 Will dated 9/1/1983 bequeathing her properties. But the property covered under Ext.A1 was not included in the testament stating that it is in the possession of the appellant and appellant has also purchased jenm right from the Land Tribunal and obtained purchase certificate. It was contended that appellant has been in exclusive possession and enjoyment of the property and first respondent who alone was originally impleaded, has no right or possession over the property. Contending that he attempted to trespass into the plaint schedule property a decree for injunction sought. First SA 225/94 3 respondent filed a written statement disputing identity of the property and contending that plaint schedule property is not identifiable. It was contended that appellant has not been in possession of the plaint schedule property and plaint schedule property was obtained on oral lease by the first respondent and he has purchased jenm right by filing an application before the Land Tribunal and Ext.A10 purchase certificate was obtained and later under Ext.B2 assignment deed dated 22/1/1987, first respondent transferred his right in favour of his wife second respondent and she is in possession of the property and appellant is not entitled to the decree for injunction sought for. A commission was taken out and the Commissioner identified plots A,B,C,D,E and F and the plaint schedule property covered under Ext.A5 purchase certificate. As possession of plots D and E by the appellant was not disputed and the dispute was only in respect of the plots A, B, C and F, appellant got amended the plaint in accordance with Ext.C4 plan showing plots A,B,C and F as plaint B schedule property being the disputed portion and the decree for injunction was sought for only in respect of those plots. But SA 225/94 4 when the plaint was so got amended and plaint B schedule property was incorporated appellant had shown the Resurvey number as 178/1 as shown by the Commissioner in Ext.C4 plan, even though plaint schedule property is in R.S.No.131 and 178/1 was its old survey number. As the first respondent contended that under Ext.B2 assignment deed the property was transferred in favour of his wife who is in possession of the property, she was impleaded as second defendant. Second respondent in the written statement reiterated the contentions raised by the first respondent and contended that under Ext.B2 ,she obtained the property with the eastern boundary thodu and she is in possession of that property and appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2, Exts.A1 to A13, B1 to B5 series, C1 to C4 found that appellant did not identify plaint A schedule property as the property covered under Ext.A5 or plaint B schedule property as its portion. Relying on the discrepancy in the boundary it was found that appellant did not establish that he is in possession of the property under Ext.A5. It was also found that when Ext.B1 assignment deed executed by the appellant shows SA 225/94 5 that property was assigned in favour of Kelu Nambiar and appellant has no case that he obtained back that property, learned Munsiff found that appellant is not entitled to claim a decree for injunction. Suit was dismissed. 3. Appellant challenged the judgment before Sub court, Thalassery in A.S.236/1992. Learned Sub Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff that plaint B schedule property was not identified. Relying on the Resurvey number of plaint B schedule property, learned Sub Judge found that when the claim is that plaint B schedule property is part of plaint A schedule property and plaint A schedule property in R.S.No.131, appellant cannot claim that plaint B schedule property is part of the said property. Upholding the findings of the trial court the appeal was dismissed. It is challenged in the second appeal. 3. Second appeal was admitted formulating following substantial questions of law. 1) Whether disposal of the first appeal was legal and in accordance with the law, when it failed to dispose I.A.2465/1993, an application for amendment of SA 225/94 6 the plaint correcting the resurvey number before the disposal of the appeal. 2) Whether the first appellate court was justified in rejecting the title of the appellant to plaint schedule property with reference to the error committed in noting the survey number of the plaint B schedule property, when it is apparent that plaint B schedule property is part of plaint A schedule property comprised in R.S.131 and I.A.2465/1993 was filed to correct the mistake. 3) Whether in the light of Ext.A5 purchase certificate and evidence on record courts below were justified in not granting a decree for injunction in favour of the plaintiff. 4. Learned counsel appearing for appellant and respondents were heard. 5. Learned counsel appearing for appellant argued that fact that disputed plots A, B, C and F as marked by the Commissioner in Ext.C4 plan is in R.S.No.131 was not disputed and plaint B schedule property is claimed to be part of plaint A schedule property and the mistake in the resurvey number of plaint B schedule property was due to the mistake committed by the Commissioner in SA 225/94 7 showing the resurvey number in Ext.C4 plan and based on that mistake first appellate court was not justified in rejecting the case of the appellant and that too when appellant had filed an application to correct the said mistake by amending the plaint. It was argued that fact that under an oral lease Narayanan Nambiar obtained 46.02 cents and under Ext.A2 it was purchased by the Kunhiraman Nambiar, uncle of respondent and Kunhappa Nambiar is proved by Ext.A1 assignment deed which was not disputed at the time of evidence. It was also argued that Ext.A2 establish that in 1951 one half right of Kunhappa Nambiar over the property covered under Ext.A1 was assigned in favour of Madusoodanan Nambiar who in turn assigned his rights under Ext.A3 in favour of the appellant and though under Ext.B1 appellant assigned the property in favour of Kelu Nambiar. Kelu Nambiar did not obtain possession of that property and he under Ext.A4 assigned his rights obtained under Ext.A1 in favour of Narayani Amma the mother of the appellant and she also did not obtain possession of the property which was recited by her at the time of executing Ext.A12 Will and much before execution of Ext.A12 Will, appellant had purchased jenm right in respect of the SA 225/94 8 eastern one half of the property covered under Ext.A1 and Ext.A5 purchase certificate was obtained and appellant thus established his title and possession of the property. Learned counsel argued that though respondents are claiming right under Ext.A10 purchase certificate obtained by first respondent, that purchase certificate was granted pursuant to Ext.A11 application filed by the appellant and Exts.A11 and A10 establish that first respondent filed application for purchase of jenm right of 23 cents which lies to the west of the property in the possession of the appellant and not the property which lies to the west of eastern thodu. It was argued that mischievously first respondent while transferring his rights over the property covered under Ext.A10 to his wife the eastern boundary was described as thodu and by mistaken boundary respondents cannot claim right, title or possession to the plaint B schedule property. It was argued that when eastern boundary of Exts.A10 and A11 shows that it is to the west of the property of the appellant and Ext.A5 establish that the property belonging to the appellant is the eastern plot which are the disputed plots A,B, C, and F as marked in Ext.C4 plan, and respondents cannot SA 225/94 9 claim any right over that property. Learned counsel argued that courts below should have found that plots A,B,C,D,E and F is the property covered under Ext.A5 purchase certificate and plaint B schedule property which is the disputed plots A, B, C and F is the portion of the said property and appellant has established the identity, right, title as well as possession and a decree for injunction should have been granted. 6. Learned counsel appearing for respondents argued that as found by the courts below identity of plaint B schedule property as the property obtained under Ext.A5 was not proved. It was argued that northern boundary of the Ext.A5 is not the property in the possession of the Nanu as shown in Ext.C4 plan but the property in the possession of Narayani Amma and plots A, B, C, E and F cannot be the property covered under Ext.A5. It was also argued that Ext.C4 shows that southern boundary of the disputed plots A, B, C and F is a paddy field and not paramba and as per Ext.A5, southern boundary is the paramba in the possession of Hassan and it cannot be the property covered under Ext.A5. Learned counsel also argued that SA 225/94 10 even though there is mistake in eastern boundary in Ext.A10 purchase certificate as DW1, first respondent, deposed that the mistake was due to the mistake in showing the eastern boundary at the time of filing the application for purchase of jenm right and based on that mistake claim of the respondents cannot be negatived or the claim of the appellant could be upheld. It is also argued that being a suit for injunction without establishing possession appellant cannot succeed in the suit and on the evidence courts below rightly found that appellant did not establish his possession of the property and the appeal is only to be dismissed. 7. The disputed property admittedly belonged to Devaswom. Both appellant and respondents are claiming the property based on lease. Both appellant and respondents claim that the lease was oral. When respondents did not plead details, appellant contended that lease was originally in favour of Narayanan Nambiar and subsequently under Ext.A1 it was transferred in favour of Kunhappa Nambiar and Kunhiraman Nambiar. Ext.A1 establishes that fact. Exts.A2 and A3 which came into existence at an undisputed point of time in 1951 and 1957 establish that SA 225/94 11 Kunhappa Nambiar assigned his undivided one half share in the property covered under Ext.A1 in 1951 in favour of Madhusoodanan Nambiar who in turn assigned it in favour of the appellant under Ext.A3 in 1957. Even though the lease set up by the appellant was oral, Exts.A1 to A3 registered documents from 1950 onwards corroborates the oral lease. Though under Ext.B1 appellant transferred his right obtained under Ext.A3 in favour of Kelu Nambiar who in turn assigned the right in favour of Narayani Amma the mother of the appellant under Ext.A4, appellant contended that though Ext.B1 was executed he continued to be in possession of the property. Ext.A5 purchase certificate was obtained by the appellant at a time when his mother was alive. Ext.A5 establish that jenm right of the eastern 23 cents covered under Ext.A1 was purchased by the appellant. It is on that basis appellant is claiming right, title and possession to the plaint schedule property. Though under Ext.B1 right obtained under Ext.A3 was earlier transferred to Kelu Nambiar. It was contended that in spite of the transfer appellant continued in possession of the property. Ext.A12 Will executed by the mother subsequent to Ext.A4 corroborates the case of the SA 225/94 12 appellant and in spite of Exts.B1 and A4, appellant continued to be in possession of the property and by the time of execution of Ext.A12 Will appellant had even purchased jenm from the Land Tribunal. It is for that reason excluded that property covered under Exts.A4 and A5 in Ext.A12. Evidence establish that appellant has been in possession of the property covered under Ext.A5. 8. Though respondents contended that there was an oral lease in favour of first respondent, details of the oral lease was neither pleaded nor established. Ext.A11 copy of the application filed by the appellant before the Land Tribunal, to purchase jenm right establish that according to first respondent he obtained the leasehold property as per a document. But there was no case of a lease evidenced by a document either in the written statement or at the time of evidence. Ext.A10 shows that the right claimed by first respondent under Ext.A11 application was accepted by the land Tribunal and purchase certificate was issued. Exts.A10 and A11 establish that tenancy claimed by first respondent and upheld by the Land Tribunal is in respect of 23 cents which lies to the west of the property of the appellant. It is absolutely clear that based on Exts.A10 and A11, SA 225/94 13 first respondent cannot claim any right, title or possession to the property which lies to the west of the eastern thodu. When Ext.A5 shows the eastern boundary as thodu, as per Ext.A10 the eastern boundary is not thodu, but the property of the appellant. As rightly argued by the learned counsel appearing for appellant, that property shown as eastern boundary in Ext.A11 application and Ext.A10 purchase certificate could only be the property covered under Ext.A5. 9. Unfortunately, courts below did not properly appreciate these relevant facts. Fact that the disputed property is plots A, B, C and F was not disputed at the time of evidence. Dispute was only whether plots A,B, C and F forms part of the property covered under Ext.A5 purchase certificate as claimed by the appellant or the property covered under Ext.A10 purchase certificate. Though courts below relied on the northern boundary of Ext.A5 and found that northern boundary of the plots A and B in Ext.C4 plan is shown as the property in the possession of Nanu and not Narayani Amma as stated in Ext.A5 and it was found that the property covered under Ext.A5 cannot be plots A,B, C and F. Fact that northern boundary of Ext.A10 property also is not the property in SA 225/94 14 the possession of Nanu was not considered by the courts below. Similarly, fact that southern boundary in Ext.A5 is shown as the property in possession of Hassan and under Ext.C4 plan it is the property in the possession of Mammootty was taken as a ground to find that identity was not established. Ext.B3 is the partition deed entered into by the legal heirs of Hassan. It shows that Mammootty is one of the legal heirs of Hassan. So fact that Ext.C4 shows that southern property in the possession of Mammootty, is not a ground to hold that southern property is not that of Hassan as shown in Ext.A5 purchase certificate. More over, even according to DW1, the first respondent, the property now in the possession of Mammootty was earlier in the possession of Hassan. In such circumstances, when the eastern boundary of the property covered under Exts.A10 and A11 is the property in the possession of the appellant and western boundary of the property covered under Ext.A1 shows the remaining property covered under Ext.A1 lease, which is the property assigned under Ext.A2, courts below should not have found that appellant has no right, title or possession to the disputed plots A,B,C and F. Fact that SA 225/94 15 in Ext.B2 assignment deed executed by first respondent in favour of his wife shows the eastern boundary is shown as thodu will not enable respondents to claim right or possession of the disputed portion. What could be assigned by first respondent in favour of his wife under Ext.B2, is only the property which was obtained under Ext.A10. When the property obtained under Ext.A10 is not the property which lies to west of the thodu but to the west of the property of the appellant, under Ext.B2 first respondent cannot transfer the disputed property in favour of his wife. Appellant has also produced tax receipts and rent receipts establishing the possession. Unfortunately, courts below were carried away by the discrepancy in the resurvey number of plaint B schedule property to non suit the appellant. As rightly pointed out by the learned counsel appearing for appellant the plaint shows that originally it was only the plaint schedule property which is the property covered under Ext.A5 and comprised in R.S.No.131 with old survey No.178/1. It is that property which was identified by the Commissioner as plots A,B,C,D,E and F. When the possession of the appellant to plots D and E was not disputed, appellant got amended the plaint SA 225/94 16 showing the disputed plots as plaint B schedule property and the entire property as the plaint A schedule property. Ext.C4 plan shows that even though the disputed property as well as remaining properties are in R.S.131, Commissioner wrongly showed it as R.S.178/1 when in fact 178/1 is the old survey number. It is that mistake which was carried out by the appellant while amending plaint B schedule property. Before first appellate court when this mistake was found out appellant filed application to amend the plaint to correct the mistake in R.S number. First appellate court in such circumstances should not have held that plaint B schedule property cannot be part of plaint A schedule property, because of the mistake in the Resurvey number of plaint B schedule property. Evidence establish that plaint A schedule property is plots A,B,C, D,E and F as marked by the Commissioner in Ext.C4 plan and it is the eastern one half of the property obtained by Kunhappa Nambiar and Kunhiraman Nambiar under Ext.A1. Kunjiraman Nambiar is none other than the direct uncle of first respondent. It could only be that leasehold right which was purchased by first respondent under Ext.A10. When Ext.A11 establish that tenancy SA 225/94 17 claimed by the first respondent was in respect of the property which lies to the west of the property in the possession of the appellant it could only be plots G and H which lies further to the west of the disputed plots A,B,C,E and F. Fact that while transferring that right in favour of his wife, first respondent wrongly showed eastern boundary as thodu will not enable them to claim any right or title to plots A,B,C and F. On the evidence courts below should have upheld the case of the appellant and granted a decree as sought for. Appeal is allowed. Judgment in A.S.236/1992 on the file of Sub court, Thalassery confirming the judgment in O.S.36/1987 on the file of Munsiff court, Kuthuparamba is set aside. O.S.36/1987 is decreed as follows. Defendants are restrained by a permanent prohibitory injunction from trespassing into the plaint B schedule property which is plot A, B,C,E, F as marked in Ext.C4 plan. It is clarified that plaint B schedule property is in R.S.No.131 and old survey No.178/1. Ext.C4 plan forms part of the decree. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 225/94 18 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.225 OF 1994 1st April 2008 ============================