IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 690 of 1996(F) ------------------------------ AS.70/1991 of SUB COURT, PAYYANNUR OS.5/1989 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT(S): APPELLANT/PLAINTIFF ------------------------ KARIYIL GANGADHARAN, S/O. DAMODARAN, 32 YEARS BY POWER OF ATTORNEY HOLDER K.DEVADAS (POWER OF ATTORNEY PRODUCED BEFORE THE MUNSIFF COURT BY A NOTE AND MARKED AS EXT.A6) BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENT(S): RESPONDENT /DEFENDANT -------------------------- * MATHIYIRI GOVINDAN, S/O. MATHAI, 63 YEARS, AGRICULTURIST, RESIDING AT CHERUTHAZHAM AMSOM AND DESOM (DIED) ADDL. R2 TO R7 IMPLEADED 2. KAVILE VALAPPIL MULLOKKARAN SARADA, WIFE, AGED 65 YEARS, P.O. MANDOOR, CHERUTHAZHAM KANNUR 670 501. 3. KARTHIYANI, DAUGHTER, AGED 45 YEARS, DO. DO. 4. SHANTA, DAUGHTER, AGED 40 YEARS, DO. DO. 5. PADMANABHAN, SON , AGED 38 YEARS, DO. DO. 6. PANKAJA VALLY, DAUGHTER, AGED 37, DO. DO. 7. KUNHIKRISHNAN, SON AGED 34, DO. DO. *ADDL. RESPONDENTS 2 TO 7 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT AS PER ORDER DT.D 16.3.2001 ON CMP. 2254/1999. ADDL. R2 TO R7 BY ADV. SRI.M.P.ASHOK KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON 29/06/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 690 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2010. JUDGMENT The plaintiff, who has been non-suited by the court below is the appellant. 2. According to the plaintiff, the plaint schedule property originally belonged to Manheri Mavuppadi Rayaroth Veedu in jenm. On partition in that tarawad, the plaint schedule property was set apart to Lakshmi Amma as B schedule in the partition deed. Consequent on the death of Lakshmi Amma, the property devolved on her legal heirs. They assigned the property to the plaintiff in 1988. Subsequently the plaintiff had effected valuable improvements in the property and it is in his possession and enjoyment. The defendants with ulterior motive are attempting to trespass into the plaint schedule property and the plaintiff has no other remedy but to approach the court. S.A.690/1996. 2 3. The defendant resisted the suit. He pointed out that the vendor of the plaintiff had never been in possession of the suit property. It is also contended that going by the plaint, the property is not identifiable and on that sole ground the suit should fail. He denied the allegation that it was the plaintiff, who had made improvements in the property. According to him, the plaint schedule property was obtained on an oral lease in 1950. He also obtained purchase certificate in respect of that property. The documents produced by the plaintiff are concocted documents and he has no valid rights on the basis of those documents. On the basis of these contentions, he prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had D.W.1 examined and Exts.B1 to B41 marked. Exts.X1 to X5 are third party exhibits. Ext. C1 is the plan prepared by the S.A.690/1996. 3 commissioner and Ext.C2 is the commission report. Both the courts below, on an evaluation of the evidence came to the conclusion that the plaintiff has not established his title and possession over the plaint schedule property and accordingly dismissed the suit. Both the courts have taken pains to identify the property claimed by the plaintiff by means of the boundaries and have come to the conclusion that none of the documents can be relied on as such. Different documents give different boundaries. The courts below have taken note of the fact that the defendant has obtained purchase certificate in respect of both the items. When the matter reached the lower appellate court, the plaintiff produced a document, which would show that the order granting purchase certificate had been set aside and the Land Tribunal has been directed to reconsider the same. However, according to the lower appellate court, that by itself is not sufficient to come to the conclusion that the defendant was not in possession of the property. S.A.690/1996. 4 5. The following substantial questions of law are seen raised in the Memorandum of Second Appeal: “a) When the question of tenancy is raised by the defendant and he relied on purchase certificate issued by the Land Tribunal, was lower court justified in not considering Ext.A7, the order of the Appellate Authority setting aside the purchase orders.” b) Has the lower court jurisdiction to decide about the tenancy set up by the defendant when the matter was pending before the Land Tribunal in proceedings initiated before the filing of the suit. c) Did the Courts below apply the correct principles in identification of the plaint schedule property with reference to plaintiff's document and commissioner's report.” 6. Learned counsel appearing for the appellant would contend that the courts below have misdirected themselves both on facts and in law. The suit was one for injunction simplicitor. There was no necessity to go into the title of the parties. The courts below were also not justified in coming to the conclusion that the boundaries in the S.A.690/1996. 5 various documents produced by the plaintiff are shown differently. There has not been an effective consideration of the documents produced by the plaintiff. According to learned counsel, there were no reasons to reject the evidence of P.W.2, which would clearly show that the plaint schedule property was in the possession of the plaintiff. Finally, it is contended that the order granting purchase certificates has been set aside and the matter is pending before the Land Tribunal. Therefore, no reliance could have been placed on the purchase certificates said to have been obtained by the defendant. Finally, learned counsel contended that if this court is of the view that the lower appellate court was justified in its findings, an opportunity may be given to the plaintiff to convert the suit into one based on title and the plaintiff may not be driven to file another suit. 7. Learned counsel appearing for the respondent on the other hand pointed out that both the courts below have independently considered the evidence on record and S.A.690/1996. 6 has come to the conclusion that the documents produced by the plaintiff are of no help to identify the property. Attention was drawn to the fact that the plaintiff obtained property as per Ext.A1 only on 7.12.1988. The suit has been laid soon thereafter. That shows that the plaintiff could not have effected much of the improvements in the property as claimed by him. This is sufficient to show that the case put forward by the plaintiff is false. According to learned counsel, even though the orders granting purchase certificates have been set aside, that does not mean that the plaintiff is in possession of the property and the possession continued with the defendant and the suit has been rightly dismissed by the courts below. If as a matter of fact, the plaintiff wants to convert the suit into one based on title, he had ample opportunities earlier and he may not be allowed to do so now. 8. While the plaintiff claims title and possession over the suit property as per Ext.A1 document, the defendant relies on oral lease of the year 1950. There are S.A.690/1996. 7 two items shown in the plaint schedule. Item No.1 has an extent of 27 ¼ cents comprised in Sy. No.314/5 of Cheruthazham amsom desom. Item No.2 is comprised in Sy. No.314/2C having an extent of 8 ½ cents. According to the plaintiff, these items lie contiguously and are not separated by visible boundaries. The commissioner has identified the suit properties. There is no dispute regarding the fact that initially the defendant had obtained purchase certificate with respect to these two items. It is also not in dispute that the orders which culminated in the issue of purchase certificates have been set aside and the matter is pending before the Land Tribunal. 9. As regards item No.1, the defendant set up an oral lease from Sreekrishnapuram Devaswom. As regards item No.2, he sets up a lease from Abdul Rahiman and Raman. It is significant to notice that it is not discernible from the document produced by the defendant that how Raman and Abdul Rahiman obtained the property. As already noticed, the commissioner has identified the S.A.690/1996. 8 properties. Ext.C1 is the plan prepared after measurement of the property. Plot A is item No.1 and plot B is item No.2. The commissioner has also noticed that plots shown as C and C1, according to the defendant, form part of plaint schedule property. Plots A and B lie on the southern side of plot C and C1. 10. According to the plaintiff, there was a partition deed executed in the family in the year 1958 and in that partition deed plaint schedule property was set apart to Lakshmi Amma. After the death of Lakshmi amma the property devolved on her legal heirs and they assigned it to the plaintiff as per Ext.A1. Ext.A3 is the said partition deed. The recital in Ext.A3 shows that several persons pooled together their properties. 11. It is pointed out that going by the boundaries in various documents, namely Exts.A1 to A5, it can be seen that the plaint schedule property belongs to the plaintiff. On the other hand the courts below have found that going by the boundaries it is not possible to identify the plaint S.A.690/1996. 9 schedule property and there is nothing to show that the plaint schedule property is that take in by the documents relied on by the plaintiff. It is also found that the plaintiff was unable to prove his possession. 12. The lower appellate court also considered the question of title and possession of the plaintiff. The lower appellate court also placed reliance on the boundaries in the various document and has come to the conclusion that it is not possible to say that the plaint schedule property was obtained by the plaintiff. The specific finding is that the boundaries of Exts. A1 and A4 did not tally. 13. It is to be noticed that the extent involved in Ext.A4 is 47 cents. It has also to be noticed that Ext.A2 refers to a house in the property. The courts below have also found that some of the documents summoned by the defendant, which were executed by the predecessor in interest of the plaintiff shows that the claim made by the plaintiff cannot be true. The lower appellate court also S.A.690/1996. 10 refers to the reason given to disbelieve P.W.2 on the sole ground that she had outstanding disputes with the defendant. 14. The contention advanced on behalf of the defendant is that both the courts have gone wrong in coming to the conclusion that going by the boundaries in the various documents, it is not possible to locate the property and the boundaries varies from document to document. It is also stressed that the suit being one for injunction, only possession is relevant. 15. The main fact which weighed with the lower courts is that there is different boundaries in Exts.A1 and A4. The lower appellate court was also of the view that the property involved in the suit was not covered by Exts.A1 and A4. Going by Ext.A3, according to both the courts, though show only a single item, whereas in the plaint there are two items. S.A.690/1996. 11 16. Ext.A1 is the document of title of the plaintiff. It is executed by Janaki Amma, Karthiyani Amma, Gopalan Nambiar and Dakshayani Amma. It takes in 28 cents of property. The vendors of Ext.A1 traced title to Ext.A3, which is a partition deed of 1958. It is clearly recited in Ext.A1 that the plaint schedule property was set apart to Lakshmi Amma in Ext.A3 partition deed. Ext.A3 partition deed of 1958 is seen to have been entered into between Narayanan Nambiar, Raghavan Nambiar, Kunjikannan Nambiar, Govindan Nambiar, Anandan Nambiar, Lakshmi Amma, Sreedevi Amma and minors Mangala Devi and Prabhakan who were represented by their guardian. One may notice one relevant recital in Ext.A3, which reads as follows: S.A.690/1996. 12 Lakshmi Amma is executant No.6 in the document. She gets B schedule property as per the partition deed. Item No.7 in B schedule is plot 1, which is shown to have an extent of 30 cents. Interestingly enough the boundaries are mentioned as that is found in document No.2067/40. The courts below were of the opinion that absence of mentioning Exts.A2 and A3 documents would indicate that the property included in Ext.A2 was not the subject matter of the partition. 17. The above observation is taken strong objection to by the learned counsel for the appellant. It was pointed out that in Ext.A4 the property involved is shown as item No.36. That is comprised in Sy. No.314/5. The recital is The measurement of the property is shown as 26 x 22 (six feet koles). The eastern boundary is shown as the property belonging to the Illom, and the southern boundary is shown as the paddy land belonging to the Illom. If the claim of the S.A.690/1996. 13 plaintiff is true, then the boundaries shown in Exts.A1 and A4 should be the same. But both the courts below found that it is not so. According to the lower appellate court the more crucial boundary is the southern boundary and in Ext.A1 it is shown as the tank belonging to Krishnapuram Devaswom and in Ext.A4 it is shown as the paddy land belonging to the Illom. 18. As already noticed, both the courts below have gone by the earlier set of documents involved in the case and found that as time passed, there may be change in ownership of the property surrounding the plaint schedule property. 19. Learned counsel appearing for the appellant pointed out that Ext.A2 of the year 1950 shows that Raghavan Nambiar was shown as the.................................... The lower appellate court taken objection to the same finding that the said person was not the senior most member of the tavazhy and holds against the plaintiff. Learned counsel for the appellant tried to point out that S.A.690/1996. 14 plaint items 1 and 2 involved in the suit are shown as comprised in document No.1548/1929 and 2849/1929. It can be seen from a reading of Ext.A3 that the individual properties were brought to common pool, may be at the relevant time Raghavan Nambiar was not the karanavan of the thavazhy. But that by itself is not a ground to disbelieve the document. Whatever that be, the fact remains that the plaintiff has not been able to show his possession over the suit property. In a suit for injunction that alone is relevant. To that extent, it cannot be said that the lower courts have erred in law. 20. Now the question remains is as to whether the prayer of the plaintiff for remand should be allowed. There is no finding that the defendants had title to the suit property. It is true that they initially relied on two purchase certificates obtained from the Land Tribunal. But those orders have been set aside and the matter is pending before the Land Tribunal. There was a real dispute regarding the identity of the property in this suit. One of the main S.A.690/1996. 15 question is who is the jenmy of the property claimed by the plaintiff and defendant. This has to be resolved first. Both the parties will have to establish their respective title and to drive the plaintiff to file a separate suit is unkind and unjust. It is felt that the relief sought for by the learned counsel for the appellant to remand the matter to the trial court and allow him to amend the suit is just and proper. In the result, this appeal is allowed, the judgment and decree of the courts below are set aside and the matter is remanded to the trial court allowing the plaintiff to seek appropriate amendments in accordance with law and granting permission to the defendant to file additional written statement and also giving liberty to the trial court to refer to the Land Tribunal the issue regarding tenancy, if occasion so arises. Both the parties will be at liberty to adduce further evidence in the matter and the court below shall dispose of the matter in accordance with law and in the light of what has been stated by this court and untamelled by any of the observations made by this court while S.A.690/1996. 16 disposing of this appeal. The parties shall appear before the trial court on 26.7.2010. The trial court may make every endeavour to dispose of the suit within ten months from the date of appearance of the parties. The office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.