IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 AS.No. 109 of 1995() -------------------- OS.121/1988 of SUB COURT, MANJERI .................... APPELLANTS: ----------- 1.KUNDUKULI MUHAMMED'S SON ABDUL KAREEM, AGED 32 YEARS, AGRICULTURIST, MAMPAD AMSOM, ERNAD TALUK. 2.ABDUL AZEEZ, S/O. MOHAMMED, AGRICULTURIST, MAMPAD AMSOM, ERNAD TALUK. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.K.R.BALASUBRAMANIAN SRI.N.MADHAVAN RESPONDENTS: ------------- PUSHPA LATHA, AGED 21 YEARS, RESIDING AT PALLIPADAM, MAMBAD DESOM, ERNAD. BY ADV. SRI.P.V.SURENDRANATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NO REPRESENTTION TODAY ALSO. APPEAL IS DISMISSED FOR DEFAULT. 12.6.2008 SD/- PIUS C.KURIAKOSE, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE, J. ------------------------ A.S.109 OF 1995 JUDGMENT 13TH JUNE 2008 M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 109 OF 1995 = = = = = = = = = = = = = = = Dated this the 23rd day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Manjeri in O.S.121/88. The suit is one for recovery of possession with mesne profits and return of plaint C schedule movable or value of the same. The Court below granted a decree for recovery of possession with mesne profits and refused the relief with respect to 'C' schedule. It is against that decision the defendants have come up in appeal. 2. Heard the learned counsel for the appellant as well as respondent. The brief facts are as follows. The property described in the plaint schedule is comprised in R.S.No.9 having an extent of 1.3 acres. It is the case A.S. 109 OF 1995 -2- of the plaintiff that the said property was leased in favour of Kadar Haji by virtue of a lease deed dated 30th Midhunam 1069 M.E. and legal representatives of this person had assigned the property in favour of one Marakkar in 1947. On the death of Marakkar the property devolved upon his six children and by virtue of Exts.A2 to A4 one of the children namely Mariyumma obtained surrender of the rights of property of the other co-sharers. Subsequently this property along with the properties obtained by Mariyumma on other partition were divided and as per division the plaint schedule property had been set apart to the share of one Biyyathumma. It is the case of the plaintiff that Biyyathumma had entrusted this property to her and thereafter she had obtained an assignment deed from her on 13.3.87 and therefore she has become A.S. 109 OF 1995 -3- the owner in possession of the property on that date onwards. There was a trespass by the defendants and hence the suit for recovery of possession. On the other hand defendants would contend that the property belonged to Thrikkalayoor Devaswom and from there one Choyi orally took lease of the property in the year 1955 and subsequently by virtue of an assignment deed Ext.B1 in 1982 had assigned it in favour of the first defendant and he had obtained a certificate of purchase and thereafter corrected the same and now he is the person in possession having title to the property and therefore the plaintiff is not entitled to any relief. 3. The learned trial judge on an exhaustive consideration of the entire materials found the title in favour of the plaintiff and granted a decree in favour of her. The points that arise A.S. 109 OF 1995 -4- for determination are regarding the correctness of the decision of the trial court and the title of the plaintiff over the property. 4. At the out set it has to be stated that in a suit for recovery of possession on the strength of title the plaintiff has to succeed or fail on the basis of her case and she cannot succeed on the loopholes pointed out in the case of the defendants. So let me first analyze about the plaintiff's case. It is the case of the plaintiff that the plaint schedule property was leased in favour of one Kadar Haji in 1069 M.E. and his legal representatives assigned the property by virtue of Ext.A1 in favour of one Marikkar in 1947. On the death of Marikkar there were six legal representatives and one of the legal representatives namely Mariyumma obtained release of the property from the other A.S. 109 OF 1995 -5- co-sharers and thereby became the absolute owner of the property. The property obtained from Marikkar plus the property received under a partition were the subject matter of division and by virtue of the same it was set apart to the share of Biyyathumma and from Biyyathumma the plaintiff took an oral entrustment and later by an assignment deed on 13.3.87 thereby conferring the title on her. A Commissioner was appointed in this case and he had visited the property and he found that the plaint schedule property and the property described in the document of title deeds relied upon by the plaintiff tallies perfectly and exactly and thereby it is found by the Commissioner that the plaint schedule property is the property covered by document Exts.A1 to A6. So the plaintiff title remains proved to be correct. A.S. 109 OF 1995 -6- 5. Now I will consider the case of the defendants. According to the defendants the property belonged to Thrikkalayoor Devaswom and one Choyi had taken oral lease of the property in the year 1955 and thereafter the defendant had obtained assignment of the said right under Ext.B1 and thereafter had obtained a certificate of purchase from the Deputy Collector of Land Tribunal, Malappuram as per Ext.B2. The property shown in Ext.B1 and the original of the certificate of purchase is comprised in R.S.8 having an extent of 1.50 acres and also with the boundaries as Vazhi on west and south and thodu on north and south. If we go by the survey number, description, extent and boundaries the property claimed by the plaintiff and the property obtained by the defendants are different. One can understand when there is A.S. 109 OF 1995 -7- discrepancy between the survey number and the extent then the boundaries will prevail. It has been held by this Court that the correct methodology to be adopted is to adopt the most palpable method to identify the property. Now going by Exts.B1 and B2 and the document of the plaintiffs it cannot be held that the property claimed by the defendants is the property claimed by the plaintiff. Now when confronted with such a difficult situation first defendant moved an application for amendment of the certificate of purchase and obtained the same. As per the amended certificate of purchase it tallies with the plaint schedule property. How far Ext.B2 as amended would prove the case of the defendant is the next question. 6. It is under Ext.B1 the first defendant obtained the property. Ext.B1 still remains in A.S. 109 OF 1995 -8- tact with R.S.No.8 extent of 1.50 acres and the boundaries as shown above. It is seen from the judgment of the trial court that on moving an application for amendment the Revenue Inspector comes to the property and the first defendant points out the property and the Revenue Inspector submits a report saying that this is the survey number and boundaries. It is not a document which is backed up by any proper identification or any materials and therefore the said document cannot be considered as a valid piece of evidence to substantiate the case of the defendant. Further such a document cannot have any binding effect on the plaintiff for the reason the plaintiff is not a party to the proceedings and therefore it is not binding on her unless and until a personal notice u/s 72F of the Kerala Land Reforms Act is served on A.S. 109 OF 1995 -9- her. This is supported by a decision of this Court reported in Kochu Lakshmi v. Velayudhan (1981 KLT 639). 7. The other circumstances which the learned counsel for the appellant has pointed out are that there was an agreement for the purchase of the property by the plaintiff from the defendant and an agreement has been entered into. It has to be stated that the agreement for sale related to the property covered under Ext.B1 and not the plaint schedule property. So at the inception of the agreement the property was comprised in R.S.8 and now the property claimed is under R.S.9. So just because an agreement is entered into it will not defeat the case of the plaintiff. Now on a comparison of the entire materials supplied and available before Court there is a steady consistent series of documents in favour of the A.S. 109 OF 1995 -10- plaintiff and his predecessors-in-interest title also is established whereas so far as the defendant is concerned it emanates from the oral lease and later by an amended certificate of purchase which are inconsistent. Therefore those documents cannot deny the interest of the plaintiff who is having valid title to the property. Therefore from these discussions I hold that the plaintiff has succeeded in proving his title to the plaint schedule property and therefore she is entitled to recovery of possession on the strength of her title. As contemplated under Order 20 Rule 12 mesne profit is to be ascertained by separate application as contemplated under the rule and therefore the finding of the Court below fixing the mesne profit at the rate of Rs.1,500/- per year is set aside. Similarly the finding regarding rejecting the A.S. 109 OF 1995 -11- prayer for return of movables is confirmed. The cost ordered by the Court below in the trial stage is accepted. In appeal parties are directed to bear their respective costs. 8. In the result the Appeal is dismissed with the only modification that the plaintiff has to move an application under Order 20 Rule 12 of Code of Civil Procedure for ascertainment of the mesne profits and it has to be decided in accordance with law. The parties are also directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 109 OF 1995 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 109 OF 1995 = = = = = = = = = = = J U D G M E N T 23rd June, 2010.