IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 LA.App..No. 401 of 2006(A) -------------------------- LAR.110/2003 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): 2ND CLAIMANT: -------------------------------------------------- PRESIDENT, NSS PERUNNA, CHANGANASSERY. BY ADV. SRI.K.R.MOHANAN RESPONDENT(S): CLAIMANTS 1 & 3 AND RESPONDENT: ------------------------------------------------------------------------------------ 1. ROY ABRAHAM, S/O.ABRAHAM, AGED 53, EDASSERI POTTAKUZHI CROSS ROAD, PACHALAM, COCHIN-682 012. 2. NEENA ROY, W/O.ROY ABRAHAM, AGED ABOUT 47, EDASSERI KOTTEKANAL ROAD, POTTAKUZHI CROSS ROAD, PACHALAM. 3. STATE OF KERALA. R1 & R2 BY ADVS. SRI.MANUEL THOMAS, SRI.V.SANKARA RAJA. R3 BY GOVERNMENT PLEADER SMT. LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1380/2006 IN LAA NO.401/2006 DISMISSED 22/07/2010 SD/- PIUS C. KURIAKOSE, JUDGE SD/- K.SURENDRA MOHAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------- LAA No.401 of 2006 ------------------------------------------- Dated this the 22nd July, 2010 JUDGMENT Surendra Mohan, J. This is an appeal filed by the second claimant in LAR No.110 of 2003 challenging the judgment and decree passed therein by the IIIrd Additional Sub Court, Ernakulam. The reference was made under Section 31(2) of the Land Acquisition Act (the 'Act' for short). 2. An extent of 9.35 Ares of land in Sy.No.144/5A of Edappally South Village of Kanayannur Taluk, Ernakulam District was acquired for the Adhoc Augmentation to Kochi Water Supply Scheme by the Special Tahsildar (L.A.), Ernakulam. An award No.281/99 dated 25.11.1999 in LAC No.402/98 was passed by the Land Acquisition Officer. Out of the 9.35 Ares of land that was acquired, compensation for an extent of 5.83 Ares of land was awarded to the appellant/second claimant. There is no dispute with regard to the above extent. However, respondents 1 and 2 who are the first and third claimants claimed that they were the owners of 1.12 Ares of land in the same survey number. According to them, they had LAA No.401/2006 2 acquired title to the property as per Exts.A11 to A13 documents. 3. Apart from respondents 1 and 2, one Madhavan had also claimed rights over the acquired property. According to him, an extent of 2.49 Ares of land in the same survey number belonged to him. The said dispute was also referred to the Sub Court. However, Madhavan did not contest the matter or produce any document to support his claim. Therefore, his claim has been negatived by the Sub Court and the compensation for the said portion of acquired land has been directed to be paid to the appellant/second claimant. Therefore, the surviving dispute is with regard to the extent of 1.12 Ares in Sy.No.144/5A of Edappally South Village. 4. The Land Acquisition Officer has awarded an amount of Rs.2,45,106/- as compensation. Since the dispute was referred to the Sub Court, Ernakulam under Section 31(2) of the Act, the amount was deposited in Court. The present case was numbered as LAR No.110 of 2002 and was tried along with the other case, LAR No.109 of 2003 and have been disposed of by the common judgment. However, this appeal relates only to the LAA No.401/2006 3 judgment and decree in LAR No.110 of 2003. 5. According to the appellant, the entire extent of 9.35 Ares of land comprised in Sy.No.144/5A of Edappally South Village belongs to the NSS, Perunna, Changanassery, having obtained the same as per Document No.4235/76 dated 10.12.1976 of the Edappally Sub Registry. The total extent of the land that was available in Sy.No.144/5A was 1 Acre 64 cents. Out of the said property, an extent of 34.500 cents was acquired for the water supply scheme during 1961. The remaining extent of 1 acre and 29.500 cents was assigned to the appellant by the previous owner as per Ext.B2 document No.4235/1976. Therefore, the appellant contended that no other person has any right in respect of the property and that the NSS was entitled to the entire amount of compensation deposited in court. 6. Respondents 1 and 2 contended that an extent of 2.77 Ares in Sy.No.144/5A of Edappally South Village belonged absolutely to them, they having purchased the property as per Sale Deed Nos.5455 of 1994 and 5456 of 1994, Exts.A10 and A11 respectively. According to them, there was a residential building in the property which was LAA No.401/2006 4 numbered as Building No.48/264 and building tax was also paid to the Corporation of Cochin by their predecessor in interest. They contended that the property purchased by them was lying as a single plot and that they were in joint possession thereof. The Jenmam rights of the acquired land was purchased by one Madhavan as per Purchase Certificate dated 26.10.1971 in O.A.No.3948 of 1970 of the Special Tahsildar, Land Tribunal, Ernakulam. Subsequently, Madhavan sold away the property as per Document No.1459/1974. There was a series of transactions thereafter with respect to the property and ultimately, the same was purchased by respondents 1 and 2. It is further contended by the respondents that they have been in continuous possession of the properties ever since the purchase of the same. Before them, their predecessors in interest were in possession and thus, their possession relates back to more than 80 years. Therefore, they claimed that they were entitled to receive the entire amount of compensation that has been deposited. 7. The evidence in the case consists of Exts.A1 to A24 documents and the oral testimony of AW1 on the side of respondents 1 and 2 and Exts.B1 to B12 documents and LAA No.401/2006 5 the oral testimony of BW1 on the side of the appellant. After the close of evidence, the court below considered the rival contentions and as per the judgment and decree under appeal, found that respondents 1 and 2 were entitled to the compensation for the acquired land. As noted above, LAR No.109 of 2003 was decreed in favour of the appellant. 8. The counsel for the appellant attacks the findings of the court below pointing out that the alleged documents relied upon by respondents 1 and 2 as their documents of title are not executed by the real title holder. Therefore, the said documents could not confer any rights on respondents 1 and 2. It is submitted that the Devaswom properties were covered by Thandaper No.752 and that the acquired properties being part thereof could not have been assigned by anyone other than the Devaswom itself. Therefore, it is contended that the documents relied upon by respondents 1 and 2 are of no consequence. According to the counsel, a total extent of 9.35 Ares was acquired from the appellant. Out of which, the present dispute is with respect to 1.12 Ares alone. The rest of the property was admittedly in the possession of the appellant. The LAA No.401/2006 6 award of the court below shows that an extent of 6.95 Ares have been surrendered by the NSS leaving the disputed extent of 1.12 Ares. Further, all the properties belonged to one Narayanan Battathirippad to whom all the properties originally belonged. The personal properties of the said Narayanan Battathirippad were comprised in Thandaper Account No.8 while the Devaswom properties were in Thandaper Account No.752. As per Ext.B3, the personal property of Narayanan Battathirippad is in Sy.No.144/3 while the property in Sy.No.144/5A is in Thandaper No.752. Therefore, it is contended that no one else other than the appellant could convey the title in respect of the said property to anyone. Consequently, the court below should have found that the appellant was the title holder of the acquired property and the proper person entitled to claim compensation for the acquired property. 9. The contentions of the counsel for the appellant are stoutly opposed by the counsel for respondents 1 and 2. According to the counsel, one Sri.Madhavan, S/o Vaironi, Manakkaparambil was the cultivating tenant under Sri.Narayanan Battathirippadu of Kizhakke Kuroor Mana, Padivattom. He claimed fixity of tenure on the LAA No.401/2006 7 coming into force of the Land Reforms Act and filed a case before the Land Tribunal. As per Order dated 26.10.1971 in O.A.No.3948/1970, the said Madhavan was given assignment of the landlord's rights that had vested in the Government on 1.1.1970. The assignment was with respect to 89 cents of land comprised in Sy.Nos.144/2, 144/4 and 144/5A of Edappally South Village. The Purchase Certificate issued in favour of Sri.Madhavan is Ext.A2. The order that preceded Ext.A2 is Ext.A1. Ext.A3 is the application submitted by Sri.Madhavan before the Land Tribunal, Ernakulam. Ext.A4 is the receipt for payment of fair rent issued by the Land Tribunal, Palluruthy. Madhavan thus became the absolute owner of the property. 10. Later on, Madhavan sold a portion of the property, 7 cents in Sy.No.144/5A in favour of one Vasavan and his wife Thankamani as per Ext.A5 sale deed. Subsequently, as per Sale Deed No.5009/1980, Sri.Vasavan and Thankamani sold the property to Smt.Rosa and her children. The property was again sold as per Ext.A7, Sale Deed No.426/1983 to one Mr.Ramachandran. Sri.Ramachandran sold the property LAA No.401/2006 8 to one Mr.Raghavan as per Ext.A8 Sale Deed and Mr.Raghavan sold the property to one Mr.Chandradas as per Ext.A9 Sale Deed. It is from Chandradas that respondents 1 and 2 have purchased the property as per Exts.A10 and A11 Sale Deeds. According to respondents 1 and 2, the property is lying within the well defined boundaries and has been continuously in the possession of their predecessors-in-interest and themselves for the past many years. The appellant has never had any right or possession in respect of any portion thereof. It is further contended that the appellant is not entitled to claim compensation for the acquired land. 11. As per Order dated 7.8.2009, this Court had directed Sri.Narayanan Battathirippad to be present in Court on 11.8.2009, with a view to ascertaining the actual facts relating to the dispute in this case. However, he was not in a position to appear before court due to old age and ill-health. Therefore, as per Order dated 11.8.2009, he was permitted to file an affidavit so as to provide assistance to the Court in resolving the disputes in the present case. Accordingly, Sri.Narayanan Battathirippad has filed an affidavit dated 14.8.2009 in this case. LAA No.401/2006 9 12. According to Sri.Narayanan Battathirippad, Pokkalam Devaswom situated in Padivattom Kara, Edappally South Village was a private Devaswom absolutely belonging to the Kurumoor Mana. Both the family properties as well as properties of the Devaswom were being managed by Mr.Narayanan Battathirippad. The only distinction was that the Devaswom properties were having a separate Thandaper Number which was No.752. The family properties were in Thandaper No.8. He has admitted that Madhavan had filed an O.A. soon after the Land Reforms Act came into force. He re- collected that some portions of the property in the same Survey Number that was the subject matter of the O.A. before the Land Tribunal was also included in the Thandaper Devaswom as belonging to it. He has admitted that he cannot clearly state whether the property mentioned in the O.A. belonged to his family or to the Devaswom. He has stated that the transfer of the properties of the Devaswom to the NSS Karayogam, Palarivattom was while the O.A. was pending before the Land Tribunal. However, the fact of conveyance of the temple and its properties to the Devaswom was never LAA No.401/2006 10 mentioned in the O.A. proceedings. 13. We have heard Mr.K.R.Mohanan for the appellant, Mr.Manual Thomas for respondents 1 and 2 and the learned Government Pleader Smt.Latha T.Thankappan for the third respondent. We have been taken through the records of the case and the evidence, both oral and documentary in detail. We have given our anxious consideration to the contentions of the rival parties. 14. It is admitted by both parties that Sri.Narayanan Battathiripad is the predecessor-in-title of both the appellant as well as respondents 1 and 2. He was also the owner of the Pokkalam Devaswom and was in administration of both his personal properties as well as the properties of the said Devaswom. Though he had executed Ext.B1 agreement with the President of the NSS, no property has been conveyed to the Devaswom as per the said agreement. Ext.B1 is only an agreement for managing the property. Subsequently, Ext.B2 agreement had also been executed. The entire properties of the Devaswom were handed over to the NSS, Perunna. The above document is of the year 1976. Neither Ext.B1 nor Ext.B2 document shows that the title to the property was LAA No.401/2006 11 conveyed to the Devaswom by Sri.Narayanan Battathirippad. Therefore, he continued to be the title holder of the properties, in spite of Exts.B1 and B2 documents. It is also worth noticing that as per Order dated 26.10.1971 of the Land Tribunal, Ernakulam in O.A.No.3948/1970, an extent of 89 cents of land was assigned to Sri.M.V.Madhavan. The said property included 45 cents of land comprised in Sy.No.144/5A. Sri.Narayanan Battathirippad had no case that any portion of the said property included Devaswom properties. Nor did Sri.Narayanan Battathirippad challenge Ext.A1 order of the Land Tribunal before any authority. Since Sri.Narayanan Battathirippad was the title holder in respect of both the Devaswom properties as well as the properties of the family, it was not necessary to make Pokkalam Devaswom a party to the proceedings before the Land Tribunal. As a result, Ext.A1 order of the Land Tribunal became final and Sri.Madhavan became vested with the absolute title and possession of the properties. The absolute title and possession of Madhavan continued without being challenged by anyone. Thereafter, he sold the property to Mr.Vasavan and his wife Thankamani as LAA No.401/2006 12 per Ext.A5 Sale Deed. Exts.A6, A7, A8 and A9 are the successive documents executed by the predecessors-in- title of respondents 1 and 2 conveying the properties successively to various persons including the vendor of respondents 1 and 2. Exts.A10 and A11 are the title deeds of respondents 1 and 2. The title deeds relate to 8 cents of land comprised in Sy.No.144/5A of Edappally South Village. Ext.A23 Encumbrance Certificate covering the period from 1.1.1956 to 13.6.1986 shows Exts.A5 to A8 sale deeds. 15. It is further seen from Exts.A16 to A19 Property Tax Receipts that there existed a building in the property bearing Door No.48/267 of the Corporation of Cochin and that building tax was remitted in respect of the said building. Exts.A20 and A21 are the Basic Tax Receipts evidencing payment of tax by respondents 1 and 2. Ext.A22 is the Land Tax Receipt in respect of the property dated 9.2.1983, remitted by Rosa and others. The above documents clearly prove the title of respondents 1 and 2 in respect of an extent of 8 cents of land comprised in Sy.No.144/5A of Edappally South Village. It is also worth noticing that Exts.A7 and A8 documents show the LAA No.401/2006 13 existence of a residential house in the property. However, in Ext.A9, the building is not seen, which shows that the building was later on demolished. A perusal of the above documents clearly show that the successive purchasers had obtained title and possession of the property and that they were exercising acts of possession in respect thereof. Though the counsel for the appellant has taken considerable strain to point out that since the disputed property was in the Thandaper account of the Devaswom, the appellant was entitled to claim the compensation, the said contention cannot be countenanced in the face of the clinching evidence referred to above. Therefore, the court below was right in negativing the claim of the appellant. 16. The counsel for the appellant has relied on the decision in Kumaran Krishan v Ulahannan Mathai (1957 KLT 42), Devan Krishnan Kartha v Kochu Mohamed Pariathu (1955 KLT 647) and Chumar v Narayanan Nair (AIR 1986 Kerala 236) to support his contention that when there is discrepancy in the Survey Number of a property, it is the boundaries that should prevail. However, since the said question does not arise in the present case, the said decisions are not necessary to LAA No.401/2006 14 be discussed in any detail. The counsel for the appellant has relied on the decision in Savithri Ammal v Padmavathi Amma (1990(1) KLT 187 (D.B.) to contend that from the proved circumstances if it is clear that the intention of the parties was only to convey the extent mentioned in the document, even if the boundaries would take in a larger area, the intention of the parties would have to be given an effect. The above proposition also does not have any application to the facts of the present case. 17. The counsel for respondents 1 and 2 has relied on the decision in Cochin Devaswom Board v George (1995(1) KLT 506 (S.C.), Lakshmi v Viswanathan (1999 (2) KLT 621) and Ahmmed Kutty v. Mariakutty Umma (2001 KLT 829) (S.C.) to support his contention that the Purchase Certificate granted under Section 72K of the Land Reforms Act, 1964 is conclusive proof of title of the property. Since apart from the above legal proposition, which is beyond dispute, in view of the finding on facts that Sri.Madhavan the predecessor in title of respondents 1 and 2 was the absolute owner of the properties, we refrain from considering the decisions referred to above LAA No.401/2006 15 also in any detail. 18. For the foregoing reasons, we do not find any grounds to interfere with the judgment and decree appealed against. This appeal is, accordingly, dismissed confirming the judgment and decree dated 25.6.2005 in LAR No.110 of 2003. In the circumstances of the case, there will be no order as to costs. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE css/