IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 SA.No. 576 of 1995(B) --------------------- AS.214/1993 of ADL.SUB COURT, THALASSERY OS.566/1988 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------- ELAMBACHERIYAN VALSALAN, S/O.DEVU, SPINNER, CANNANORE SPINNING & WEAVING MILLS, PUZHATHI AMSOM, DESOM, THALASSERY, KAKKAD, KANNUR-5. BY ADV. SRI.K.V.SOHAN RESPONDENTS/LR'S OF APPELLANT/DEFENDANT: ----------------------------------------------------- 1. YASHODA.A D/O. A.RAJAN, RESIDING AT PUZHATHI AMSOM, DESOM, KAKKAD, THALASSERY. SINCE DIED. LR'S RECORDED AND IMPLEADED. 2. A. SUSHEELA, W/O.ARINGALAYAM RAJAN, RESIDING AT PUZHATHI AMSOM DESOM, KAKKAD, THALASSERY. 3. A.K.REKHA, D/O.RAJAN.A -DO- 4. RAJISH, S/O.RAJAN, REP. BY HIS MOTHER SUSHEELA. ADDL.RESPONDENT NO.5 ARINGALAN SUNANDA, W/O.VELLAKODIYAN KUNHAMBU, NEAR CHOVVA SIVA TEMPLE, AMBALAKULAM, P.O.CHOVVA, KANNUR – 670006. ADDITIONAL RESPONDENT NO.5 IMPLEADED AS THE LEGAL HEIRS OF DECEASED RESPONDENT NO.1 VIDE ORDER DATED 29/2/08 IN I.A.136/2008 AND RESPONDENTS 2 TO 4 ARE RECORDED AS THE OTHER LEGAL HEIRS OF DECEASED RESPONDENT NO.1 VIDE ORDER DATED 29/2/08 IN I.A.135/2008. SA.No. 576 of 1995(B) 2 ADV. SRI.K.S.MADHUSOODANAN SRI.N.M.VARGHESE FOR SRI.C.P.PEETHAMBARAN E.S.SATHEESH SRI.C.P.PEETHAMBARAN FOR R2 & 3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- S.A.No.576 OF 1995 ------------------------------------- Dated this the 27th day of July, 2009 JUDGMENT The plaintiff in O.S.No.566 of 1988 on the file of the Munsiff Court, Kannur is the appellant. The appeal is directed against the judgment and decree in A.S.No.214/1993 and Cross Objection on the file of the Sub Court, Thalassery. The suit was filed for recovery of possession and for injunction. The trial court decreed the suit and directed the defendants to surrender possession of the B schedule property excluding GHIC in Ext.C4 plan after removing the unauthorised constructions. The plaintiff filed cross-objection for excluding GHIC portion and the defendant filed appeal against the decree permitting the plaintiff to recover possession of B schedule excluding GHIC. The appellate court considered the appeal and cross objection by the impugned decree and judgment. The appellate court allowed the appeal filed by the defendant reversing the decree for recovery of possession passed by the trial court. The cross objection filed was dismissed. Thus, the plaintiff has gone up in the second appeal. 2. It is the plaintiff's case that his mother a S.A.No.576 OF 1995 2 kudikidappukari was enjoining the 10 cents of property scheduled in the plaint. The mother filed O.A.12474/1976 on the file of the Land Tribunal, Kannur for purchase of kudikidappu of the 10 cents scheduled in the plaint. The southern portion of the property of the 10 cents schedule is B schedule. It is averred in the plaint that the defendant trespassed into the plaint B schedule property and put up a pit latrin with cudgan leaves. 3. In the written statement filed by the defendant it is contended interalia that the plaintiff is not in possession of the 10 cents of property as alleged in the plaint, that 4 cents of land out of 10 cents is in the possession and enjoyment of the defendant. Out of the 4 cents ½ cents of land was obtained by the mother of the defendant as per lease deed No.1239/1945. The said deed is marked as Ext.B1. Further the case of the defendant is that 0.4 cents is not enough for the construction and enjoyment of the house. The jenmy leased out 3 ½ cents in 1951. The defendant being the successor of his mother is enjoying thus a total extent of 4 cents. It is also contented that the plaintiff's mother has got 7 cents only as kudikidappu in her possession. Therefore, the defendant prayed for dismissal of the S.A.No.576 OF 1995 3 suit claiming recovery of B schedule property. The trial court considered the question elaborately on merits on the basis of oral and documentary evidence adduced by the parties and the court Exhibits namely C1, C2, C3 and C4. The trial court held that mother of the plaintiff is a kudikidappukari of the plaintiff and that she obtained Ext.A2 pattayam and on that basis she is in possession and enjoyment of the property covered by the purchase certificate obtained from the land tribunal. 4. The trial court also examined the documents produced by the defendant. Ext.B1 shows that the area of 0.4 cents of land is given in possession to mother of the defendant by Kannan Nambiar. Ext.B1 shows that the defendant is having 0.4 cents in B schedule property. The further case of the defendant is that he is in possession of 3 ½ land on oral entrustment given by Shri.Kannan Nambiar to the defendant’s mother was also examined. The trial court observed that apart from oral interested testimony of the defendant, there is no evidence in support of his case that he obtained the property by way of oral lease. The trial court also observed that the defendant could have examined the legal representative of Kannan Nambiar or S.A.No.576 OF 1995 4 independent witnesses who are residing nearby the plaint B schedule property to prove that 3 ½ cents of land in the B schedule property is in the possession of the defendant. The trial court held that since the defendant has not proved that his mother and he is in possession of 3 ½ cents of land, as per the oral entrustment given by Shri.Kannan Nambiar, rejected the contention of the defendant that he is having right over an area of 3 ½ cents of land in the B schedule property. The defendant has no case that he has perfected title by adverse possession and limitation. 5. The only question to be examined is whether the defendant has got any right over any portion of the property. From the documents adduced by the defendant, the trial court rightly held that 0.4 cents of land out of the B schedule property which the defendant has got title by Ext.B1 registered deed and therefore the plaintiff is not entitled to any relief in respect of that portion. The other portion covered by the purchase certificate claimed by the defendant was negatived by the court finding that he has failed to substantiate his case. Therefore, the trial court passed a decree as stated above excluding 0.4 cents. S.A.No.576 OF 1995 5 6. The appellate court reversed the judgment and decree. The appellate court observed that the purchase certificate issued from the land tribunal or the order of assignment preceding the issuance of purchase certificate does not show the actual measurement of 10 cents of property or the 4 boundaries of the said property. It is also observed by the appellate court that we do not know from where the plaintiff got 4 boundaries of the property. The survey plan produced by the plaintiff which was prepared in connection with the issuance of purchase certificate was doubted by the appellate court and that it is doubtful whether the said survey plan is the plan of the property of 10 cents which the plaintiff's mother obtained as kudikidappu. Except the survey number, there is nothing to suggest that this plan relates to this 10 cents. The appellate court also observed that the plaintiff has not examined anybody to prove that survey plan actually relates to the 10 cents described in the purchase certificate and that it is a well accepted rule that the purchase certificate issued from the land tribunal has not at all a conclusive document of title. I cannot agree with the reasonings of lower appellate court. The S.A.No.576 OF 1995 6 purchase certificate issued by the land tribunal is the competent authority to examine as to whether a party is entitled to purchase kudikidappu right or not. The civil court has the duty to examine whether the applicant as the case may be, obtains the purchase certificate or kudikidappu certificate by practicing fraud or collusion in a case where fraud or collusion is alleged. Until it is established that a purchase certificate was obtained by practicing fraud or collusion, the certificate is a conclusive document of title. This is a well-settled legal position, settled by the High Court and Supreme Court in a catena of cases. 7. The lower appellate court rightly held that in the plot GHIC marked in Ext.C4 plan is the property covered by Ext.B1 document. The finding of the trial court in that regard was rightly upheld by the appellate court. But the reasoning stated by the appellate court for non-suiting plaintiff in respect of his title over the plot EFDIHG is not supported by any legal or factual basis. Other reasons are also stated like the difference in age of improvements in the A & B schedule and that there is no clear cut evidence to prove that the defendant trespassed into B schedule property on 15/11/1988 etc also are unsustainable so S.A.No.576 OF 1995 7 long as the defendant has no case that he perfected title by his continued, uninterrupted hostile possession. The lower appellate court is not expected to reverse the findings of the trial court on the basis of rejecting Ext.A1 purchase certificate. In the result the decree and judgment passed by the appellate court reversing the prayer for recovery of possession is set aside. Accordingly, the appeal is allowed and the decree passed by the trial court is restored. No order as to costs. HARUN-UL-RASHID, JUDGE skj.