IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 RSA.No. 444 of 2006() --------------------- AS.95/2005 of SUB COURT,THODUPUZHA OS.165/2002 of MUNSIFF COURT, DEVIKULAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ----------------------------------------- 1. C.SUBBIAH, SON OF CHELLIAH, FACTORY DIVISION, GRAHAMS LAND ESTATE, K.D.H.VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. 2. VEERIAH, SON OF CHELLIAH, MATTUPETTY ROAD, MUNNAR, P.O., K.D.H. VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS RESPONDENT(S)/RESPONDENT/DEFENDANT ------------------------ PAPPACHAN.K.ELENJICKAL, SON OF LATE KURIPPE, ELENJICKAL HOUSE, KOTHAMANGALAM, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.444 of 2006 --------------------------------------- Dated this 05th day of April, 2010 JUDGMENT The following substantial questions of law are framed for a decision: (i)When a suit or counter claim is made seeking a declaration of title and recovery of possession is not the plaintiff/counter claimant bound to establish his title. (ii)Without producing the original title deed and without having any valid explanation for non production of original title deed was the Court justified in relying on the copies produced which are inadmissible in evidence to declare title. (iii)When identity of the property claimed by the plaintiff is not disputed and that admittedly the defendants documents have no clear boundary descriptions of the property claimed can the counter claim be allowed? (iv)Can the patta issued by the Tahsildar be valid as a valid title deed in respect of a property in the Kannan Devan Hills Village in the light of provisions in Kannan Devan Hills (Resumption of Possession of lands) Act? R.S.A. No.444 of 2006 -: 2 :- These questions arise in this second appeal preferred by appellants/plaintiffs challenging concurrent finding entered by the courts below, consequent dismissal of the suit and decree in the counter claim. The dispute concerns about a cent of land situated towards the southern portion of the property admittedly belonging to the respondents, both items comprised in survey No.62/28A of Kannan Devan Hills Village. Appellants claimed that they are in possession of the suit property since the last 35 years where appellant No.2 is running a petty shop since 1975 onwards. The suit property has been assessed by the Panchayath for building/professional tax purposes. Appellant No.2 has another shed in the suit property to store firewood. On the east of the suit property is the soil cutting and wire fencing. On the further east, it is the R.S.A. No.444 of 2006 -: 3 :- property of Central Government. Alleging that respondent tried to trespass into the suit property and open up a pathway, appellants filed the suit for a decree for prohibitory injunction. Respondent while resisting the suit made a counter claim. He claimed that he has right, title, interest and possession over 12.830 cents in survey No.62/28A (counter claim A schedule property) as per gift deed No.1809 of 1985 executed by his father who in turn got it from the KDH Private Limited Company in the year 1977 and that the suit property (counter claim B schedule property) forms its southern portion. The suit property and the rest of the property belonging to the respondent on the north lie contiguously. Respondent obtained patta issued by the Tahsildar on 09-10-1995. The southern portion of the said 12.830 cents was left by the respondent to be used as car R.S.A. No.444 of 2006 -: 4 :- parking area for the multi storied building constructed by him. It is not true that appellants are in possession of the suit property. Respondent's father had constructed a tin shed in the suit property in the year 1977 and the eastern portion of that shed was given into the possession of one Shanmughan as per license arrangement to run a barber shop. The western portion was given to appellant No.1 on a similar arrangement on payment of license fee of Rs.1.20 per day for conducting business which he carried on till 1985. While so, one Udayan trespassed into the counter claim B schedule property (suit property) in the year 1990 and he was evicted in the year 1997. Appellant No.1 influenced the local revenue authorities and obtained certain documents in his name as if he is in possession of counter claim B schedule property (suit property) but, those documents were R.S.A. No.444 of 2006 -: 5 :- canceled by the Tahsildar on a complaint preferred by the respondent. In the counter claim, respondent prayed for a declaration of his title over counter claim A and B schedule property and for recovery of possession of the said B schedule property (suit property). Trial court found the issues in favour of the respondent and dismissed the suit while, counter claim was decreed in part declaring title of respondent in the counter claim B schedule property and directing appellants to remove the unauthorised constructions in the counter claim B schedule property within one month from the date of the judgment. That was confirmed by the first appellate court. Hence this appeal. It is argued by learned counsel for appellants that counter claim of the respondent being based on the absolute title claimed by him over the suit property, burden lay on the respondent R.S.A. No.444 of 2006 -: 6 :- to prove the title which has not been done in this case. According to the learned counsel, even an admissible copy of the patta relied on by the respondent is not produced and what is produced is only a copy attested by the counsel concerned as a true copy which is not admissible as secondary evidence. It is also contended that the order granting patta in favour of respondent is invalid since it is issued in accordance with the provisions of the Kannan Devan Hills (Resumption of Lands) Act 1971 (for short, “the Act”). According to the learned counsel, at any rate Ext.B18 would show that appellant is a co-owner of the suit property and hence no declaration or mandatory injunction as prayed for could be granted. Learned counsel for respondent would contend that title of the respondent is proved by sufficient evidence and that appellants cannot challenge R.S.A. No.444 of 2006 -: 7 :- title of the respondent. It is also contended by learned counsel that the claim of appellants that at any rate they are co-owners of the suit property cannot stand in so far as there is neither plea nor evidence in that line. Alternatively, it is argued that even the documents of title relied by appellants show that appellants have no right to use the suit property and hence courts below are justified in granting relief on the counter claim. 2. Going by the averments in the plaint and contentions raised in the replication, appellants have no claim of title over the suit property and instead what is pleaded is possessory right. It is of course stated that appellants are awaiting issue of patta in their favour in respect of the suit property but concededly, no such patta has been issued to the appellants. Exts.A1 to A5 series are produced R.S.A. No.444 of 2006 -: 8 :- by the appellants to prove their possessory right over the suit property. Ext.A1 is the certificate issued by the Village Officer on 28.05.1997 certifying that appellants are in possession of the suit property. Exts.A2 to A4 are documents based on Ext.A1. It has come in evidence that on a complaint of respondent Ext.A1 was revoked which PW1, Village Officer who issued Ext.A1 has admitted. Hence based on Exts.A1 to A5 series, appellants cannot claim any possession over the suit property. 3. So far as entitlement of respondent over the suit property is concerned, his case is that it formed part of the 12.830 cents in survey No.62/28A belonging to him as per Ext.B10, gift deed No.1809 of 1985 executed by his father, the late Kuri Iype. In Ext.B10 it is stated that the donor got that property for consideration R.S.A. No.444 of 2006 -: 9 :- from the KDH (Private Limited) company. In Ext.B10 the southern boundary stated is post office road. Ext.B11 is the proceedings of District Collector, dated 09-10-1995. In Ext.B11 the subject referred is the Act and states that as per award dated 29-03-1974 issued by the Land Board of Kerala, 226.69.440 acres of land was either leased out, sold or gifted to outsiders by KDH (Private Limited) company which has to be examined by the District Collector and appropriate action taken in the matter to regularise occupation. There is reference to the request of respondent for assignment of 12.830 cents which was got enquired by the District Collector through the Tahsildar concerned. It is also stated in Ext.B11 that as per the award of Land Board of Kerala respondent has right over 12.830 cents with the old building situated thereon purchased by his father R.S.A. No.444 of 2006 -: 10 :- from the KDH (private limited) company. Accordingly, District Collector accorded sanction for assignment of 12.830 cents in survey No.62/28A as per the Kerala Land Assignments Rules 1964 (for short, “KLA Rules”) and directed the Tahsildar to issue patta. It is accordingly that the Tahsildar issued patta in favour of respondent concerning the said 12.830cents in survey No.62/28A. Ext.B13 is the photocopy of that patta signed by the advocate concerned as a true copy. That patta is issued under the KLA Rules, 1964. 4. The argument of learned counsel for appellants is that while in Ext.B11, reference is made to the Act the patta issued is not in accordance with the rules framed under that Act but under provisions of the Kerala Land Assignment Act (for short, “the KLA Act”) and the Rules. Learned counsel would contend that it was not R.S.A. No.444 of 2006 -: 11 :- possible for the District Collector to issue patta under the KLA Act and Rules in respect of land covered by the Act. Section 3 of the KLA Act refers to vesting of possession of certain lands and sub section 2 (b) exempted “buildings, other than buildings belonging to trespassers, and lands appurtenant to”. According to the learned counsel for respondent the 12.830 cents is the land appurtenant to the old building situated thereon, exempted from vesting under subsection 2(b) of Section 3 of the KLA Act and hence there was nothing illegal in the issue of patta in favour of the respondent under the provisions of the Kerala Land Assignment Act and the Rules, 1964. 5. Though, not produced in evidence learned counsel for respondent has given for my perusal a certified copy of proceeding of R.S.A. No.444 of 2006 -: 12 :- the Land Board dated 28-03-1974 where, in paragraph 35 it is stated that 226.69.440 acres have been either leased out, sold or gifted to outsiders by the KDH (private limited) company and that in respect of the said area the District Collector, Idukki has to conduct appropriate enquiry and take necessary further action (to regularise occupation). The District Collector was directed to take further action to grant patta. In the case of outright sale or gift a list of areas continued to vest with the Government was also annexed to the order. In that list item “C” is the area leased out, gifted or sold for which claims were relinquished or in the possession of others but, not deducted form the total holdings of KDH (private limited) company. Serial No.7 relates to “building and land handed over to Mr. E K Kuri Iype – 0.1283 acres (i.e., the 12.830 cents in survey No.62/28A which respondent's R.S.A. No.444 of 2006 -: 13 :- father claimed by way of assignment from the KDH private limited). Thus the old building and land appurtenant to it which the KDH company had assigned to the father of respondent was exempted from vesting under section 3(2)(b) of the KLA Act and hence it was within the power of the District Collector to take action to issue patta to in respect of such lands. It is accordingly that by authority of the provisions of the Kerala Land Assignment Rules, District Collector has sanctioned issue of patta to the respondent as per Ext.B11 order. In the circumstance, the contention that patta issued under the KLA Rules is invalid cannot be sustained. 6. The next argument is that Ext.B13 is not an admissible copy of the patta. No doubt, Ext.B13 cannot be classified as secondary evidence as it is only a true copy signed by the Advocate. R.S.A. No.444 of 2006 -: 14 :- But no objection was raised at the time that document was introduced in evidence and hence in the light of the decision in Krishnan Nair. S. Vs. S. Jayakumari (2009 (4) KHC 692) appellant cannot at this stage raise objection regarding admissibility or acceptability of Ext.B13. 7. Now the question is whether disputed property formed part of the 12.830 cents covered by Exts.B10, B11 and B13. Burden of proof in the nature of counter claim is on the respondent. In Ext.B10 southern boundary of the 12.830 cents stated is post office road. It has come in evidence that on the south of disputed property, it is a post office (link) road. There is no case or evidence that in between the suit property and property admittedly belonging to the respondent there is any such road. Therefore it is clear from R.S.A. No.444 of 2006 -: 15 :- Ext.B10 that the 12.830 cents in survey No.62/28A extends up to the post office road on the south. Respondent has produced Ext.B3, plan for construction of building in the 12.830 cents where also the southern boundary of the said property is shown as the road. The Advocate commissioner in Ext.C3(a) has shown the actual extent available as 12.464 cents bounded by road on the south and the extent of counter claim B schedule property as 1.112 cents. In Ext.B18, copy of assignment deed on which appellants now rely, southern boundary of the 12.830 cents is shown as post office (link) road. The Advocate commissioner who measured the property with the assistance of surveyor has also reported that disputed property (suit property, i.e., the counter claim B schedule property) is part of counter claim A schedule property. Finding of the courts below in R.S.A. No.444 of 2006 -: 16 :- that regard requires no interference. 8. A contention is raised by learned counsel that there is no proper identification of the suit property. But in the light of Exts.C3 and C3(a), that contention also cannot stand. Thus courts below basing on the evidence on record rightly found that disputed property formed part of 12.830 cents covered by Exts.B10 and B13. 9. A contention is now advanced by learned counsel for appellant that Ext.B18, copy of assignment deed in favour of respondent would show that appellants are co-owners of the suit property along with the respondent. According to the learned counsel if Ext.B18 is accepted, then there is no escape from the conclusion that appellants have right over the suit property in which case declaration and mandatory injunction prayed for cannot be R.S.A. No.444 of 2006 -: 17 :- granted against the appellants they being co-owners along with the respondent. Learned counsel for respondent would contend that there is no claim of title based on Ext.B18 made by the appellants and instead, their contention is that the suit property did not form part of 12.830 cents, no such contention was raised in any of the courts below and hence at this stage that contention cannot be allowed to thrive. 10. I have gone through Ext.B18, certified copy of assignment deed No.2164 of 2001 dated 05-11-2001 executed by the assignee of respondent purportedly conveying his 976/35000 undivided share in the A schedule property mentioned therein in favour of appellants. According to the learned counsel for appellants, A schedule stated in Ext.B18 is the 12.830 cents and hence fractional interest of the R.S.A. No.444 of 2006 -: 18 :- assignor under Ext.B18 i.e., 976/35000 undivided shares must take in his fractional interest in the disputed property as well. But I must bear in mind that such a contention was not advanced by the appellants in any of the courts below, not to say about lack of pleading in that regard. On the other hand contention raised by the appellants is that suit property does not formed part of the 12.830 cents belonging to the respondent. Therefore it is not necessary for me to go into that question in this appeal but having regard to the contention raised by the appellants, I make it clear that it will be open to them to establish co-ownership right claimed by them over the disputed property as per Ext.B18 if they are otherwise entitled to that course. That need not result in interference with the decree granted by the courts below on the counter claim. Decree in the R.S.A. No.444 of 2006 -: 19 :- counter claim only declares right of respondent as per Ext.B10, B11 and B13. So far as the decree for mandatory injunction is concerned, even clause 5 of Ext.B18 would say that so far as the car parking area (disputed property) is concerned, appellants will have no right of enjoyment. If that be so, even if Ext.B18 is accepted as conferring title on appellants, they cannot put up any structure in the disputed property. Hence appellants are bound to remove the structures from the suit property. Trial court has only granted a mandatory injunction for removal of structures in the suit property (counter claim B schedule property. That even in the light of clause 5 in Ext.B18 has to stand. The substantial questions of law are answered in the above lines. I make it clear that the title of respondent declared over the counter claim B schedule property will not prevent appellants from R.S.A. No.444 of 2006 -: 20 :- establishing the claim made by them on the strength of Ext.B18, if they are otherwise entitled to other course. Resultantly with the observation that dismissal of the suit or decree on the counter claim declaring title of respondent over the suit property will not prevent appellants from establishing their claim on the strength of Ext.B18 if there are otherwise entitled to that course, the second appeal is dismissed. No costs. Interlocutory Application No.444 of 2006 shall stand dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-