IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 SA.No. 622 of 1996(G) ----------------------------------- AS.32/1994 of PRL.S.C., THALASSERY OS.89/1989 of PRL.M.C., KANNUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: *1. PATTUVAKKADAN KANNOTH PADMAVATHY AMMA, D/O NANI @ SREEDEVI AMMA, RETIRED SCHOOL TEACHER, VILIANNOOR AMSOM DESOM, POST VARAM, DIST. KANNUR. 2. PATTUVAKKADAN KANNOTH THANKAMANI AMMA, D/O PADMAVATHY AMMA, DO. DO. 3. PATTUVAKKADAN MANNOTH RAMACHANDRAN, S/O DO. BUSINESS, DO. DO. *1st appellant died and it is recorded that 2nd and 3rd appellants are the LRs of deceased 1st appellant as per order dated 3.6.99 on SA. BY ADV. SMT.VIDHYA. A.C SRI.C.KRISHNAN SRI.A.C.VENUGOPAL RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. GOVT. OF KERALA REP. BY DISTRICT COLLECTOR, KANNUR. 2. SPECIAL TAHSILDAR (LA), PAZHASSI IRRIGATION PROJECT, KOODALI, KANNUR. 3. PATTUVAKKADAN KANNOTH DAMODARA KURUP, S/O NANI @ SREEDEVI AMMA, SCHOOL TEACHER, VALIANNOOR AMSOM DESOM, POST VARAM, DIST. KANNUR. 4. PATTUVAKKADAN MANNOTH KAUSALLYA AMMA, D/O CHANDU NAMBIAR RESIDING AT PRAKASH NILAYAM, DO. DO. BY ADV. SRI.V.N.RAMESAN NAMBISAN FOR R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.622 of 1996 -------------------------- JUDGMENT Plaintiffs in O.S.No.89/1989 on the file of Munsiff's Court, Kannur are the appellants. Respondents are the defendants in the suit. On the death of the first appellant, the other appellants were recorded as her legal heirs. The suit was originally instituted as against respondents 1 to 3 alone for a decree “directing defendants 1 and 2 to restore possession of the excess land, having an extent of ten cents, unauthorisedly taken possession from the plaintiffs under the Land Acquisition Act and in the alternative to pass a decree against defendants 1 and 2 to pay a sum of Rs.8,000/- with interest as damages”. Third respondent was impleaded alleging that “he has received more than the compensation he is entitled to receive from defendants 1 and 2”. Appellants contended that the plaint schedule property is 10 SA 622/96 2 cents of 1.42 acres is in R.S.No.62/4 (O.S.14) of Valiyannur Village of Kannur Taluk. Their case was that plaint schedule property, along with the rest, originally belonged to their thavazhy and as per Exhibit A1 partition deed dated 6.6.1962, the property was divided among the appellants, respondents 3 and 4 and their mother Nani @ Sreedevi Amma. Appellants were jointly allotted 24 cents, 48 cents was allotted to Nani @ Sreedevi Amma, 26 cents was allotted to third respondent and 43 cents was allotted to fourth respondent as Item Nos.3, 1 and 5 thereunder. Nani @ Sreedevi Amma gifted her property in favour of appellants 2 and 3 as per Gift Deed dated 13.7.1962 and second respondent, Special Tahsildar (Land Acquisition), Pazhassi Irrigation Project acquired 45.34 cents from 72 cents of property belonging to the appellants for excavation of Azhikkal Branch of Pazhassi Canal. While so, when the property was measured later, after acquisition, it was found SA 622/96 3 that instead of 45.34 cents, Government have already acquired 55 cents from the properties of the appellants, leaving only a balance of 17 cents. Even though possession was taken earlier, the excavation work was finished only recently and on a measurement, a larger extent of the properties of the appellants were found taken and as per the award, extent of the property taken from the third respondent was 13 cents, 24 cents was taken from appellants 2 and 3 and 21 cents was taken from the first appellant. It is contended that on a measurement, it was found that only three cents from the property of the third respondent was taken, leaving 23 cents out of 26 cents allotted to her and the balance 10 cents was acquired from the properties of the appellants and not from the third respondent and still, compensation was granted only for 45.34 cents and therefore, appellants are entitled to get recovery of possession of 9.66 cents from respondents 1 and 2. Contending that in SA 622/96 4 spite of notice, the property was not restored, suit was instituted. 2. Respondents 1 and 2 contended that for the purpose of Azhikkal Branch of Pazhassi Irrigation Project, properties were acquired and Award No. 27/1979 was passed and during the award enquiry, before passing the award, appellants objected that 1½ cents of property belonging to them had been in the possession of the third respondent, which forms part of the acquired property and they claimed compensation for that extent and in view of the objection, third respondent had agreed to pay the amount to settle the dispute and granted Rs.311/-, being the value for 1½ cents, to the appellants and hence, they are not entitled to get the decree sought for, as the Government did not acquire any excess extent as contended. 3. Third respondent, in his written statement, contended that as per the partition, plaintiffs were allotted 24 cents and later, 48 cents to Nani SA 622/96 5 @ Sreedevi Amma. Sreedevi Amma gifted that to appellants 2 and 3 and he is not in possession of any excess extent. 4. The suit was originally dismissed by the trial court and appellants filed A.S.No.129/1991. Learned Sub Judge set aside the decree and remanded the suit. Thereafter, a commission was taken out to identify the property and appellants impleaded the fourth respondent, as it is alleged that a portion of the property is in his possession, though no relief was sought against him. 5. Learned Munsiff, thereafter, as per judgment dated 9.12.2003, dismissed the suit. Appellants challenged the judgment before Sub Court Thalassery in A.S.No.32/1994. Learned Sub Judge, on re- appreciation of the evidence, found that Government had taken possession of 48½ cents from the properties in the possession of the appellants instead of 45½ cents as shown in the award and therefore, there is an excess of three cents. SA 622/96 6 Learned Sub Judge, therefore, partly allowed the appeal and granted a decree directing respondents 1 and 2 to pay Rs.1,200/- with the statutory benefits available to them under the Land Acquisition Act. Though appellants sought a decree for recovery of possession of the property, found in the possession of respondents 3 and 4, learned Sub Judge rejected the claim holding that no such relief was sought for in the plaint. Second appeal is filed challenging that portion of the judgment of the learned Sub Judge in A.S.No.32/1994, denying recovery of possession of the property from respondents 3 and 4. 6. Though appeal was admitted on 12.9.1996, no substantial question of law was formulated. 7. Learned counsel appearing for the appellants and respondents 3 and 4 and learned Government Pleader were heard. 8. As no substantial question of law was formulated, it is to be considered whether any SA 622/96 7 substantial question of law is involved in the appeal. The substantial questions of law projected in the appeal memorandum are : 1. In a suit for recovery of possession on the strength of title is not the court bound to grant decree for recovery of possession against those defendants who are found to be in wrongful possession of the property of the plaintiffs? 2. Whether courts below were legally correct in holding that as no recovery of possession was sought for from respondents 3 and 4, appellants are not entitled to the decree sought for? 3. Having found that Government have taken possession of three cents in excess of the land covered by the land acquisition award, is the court justified in not granting a decree for recovery of possession of the said extent from respondents 1 and 2? 9. Though third respondent was originally impleaded and fourth respondent was subsequently impleaded, no relief was sought for against either of them in the plaint. As is clear from paragraph 2 of the plaint, third respondent was impleaded only for the reason that he had received the compensation amount, which should have been paid to SA 622/96 8 the appellants. In such circumstances, the question is whether learned Sub Judge was justified in not granting a decree for recovery of possession of the land in the possession of respondents 3 and 4, for the reason that there was no such prayer. 10. Argument of the learned counsel appearing for the appellants is that when the suit is for recovery of possession of the plaint schedule property and the evidence establishes that 9.66 cents of property is in the possession of respondents 3 and 4, whether denial of a decree for recovery of possession as against respondents 3 and 4 is legal? Though learned counsel argued that it is for the court to mould the relief and even a decree, which was not sought for, could be granted by the court, if the court finds that plaintiffs are entitled to the said decree and therefore, for the reason that there was no prayer for recovery of possession of the property from respondents 3 and 4, denial of recovery of possession is illegal and SA 622/96 9 is to be set aside. 11. A court is always competent to mould the relief and shall not be cabined by the reliefs sought for in the plaint. But the reliefs so granted cannot be in excess of the reliefs sought for. If a larger relief was sought for, the court was not justified in not granting the necessary relief for the reason that a lesser relief was not sought for. But, when, only a lesser relief was sought for, court cannot grant a larger relief. So also, when no relief was sought for at all against some of the defendants, the court, under the guise of moulding the relief, cannot grant a relief against those defendants against whom the plaintiffs have not sought for any decree. That exactly is the position herein. Though third respondent was originally impleaded, it is for the reason that third respondent had received excess compensation, as it is alleged that part of that property, for which compensation was granted to the SA 622/96 10 third respondent, belongs to the appellant. There was no allegation with regard to any excess land in the possession of the third respondent or that appellants have title to that property and therefore, third respondent is liable to surrender vacant possession of that property. So also, though fourth respondent was subsequently impleaded, no relief was sought for against him. The plaint only discloses that he was made a party as the Commissioner reported that she is in possession of the excess land. Even if fourth respondent was impleaded on the basis that she was allegedly in possession of excess land, no relief was sought for against the fourth respondent. When no relief was sought for against respondents 3 and 4, the court could not have granted a decree against them, thereby, denying an opportunity to those respondents to raise whatever plea available to them. Though learned counsel appearing for the appellants vehemently argued that they cannot raise SA 622/96 11 any plea, as a plea of adverse possession will not lie and there cannot be a lease, it is not for this Court to consider whether a plea of adverse possession, if raised, would stand or not. 12. Then the question is whether without granting an opportunity to those respondents, recovery of possession of the property from them could be directed as canvassed by the appellants. When the appellants did not seek a relief for recovery of possession and thereby respondents 3 and 4 have no opportunity to raise whatever plea available for them, a decree for recovery of possession as against them cannot be granted. Therefore, I find that no illegality is committed by the learned Sub Judge as canvassed by the appellant. 13. Then the only question is whether appellants are entitled to get recovery of possession of three cents from the Government as excess of three cents acquired. The only case is SA 622/96 12 that out of the acquired property, apart from the property shown in the award, three cents of property is also found part of the property of the appellants. It is not that Government cannot acquire the said property. The only case is that though the extent of land shown in the award is less, in fact, more extent was acquired from the appellants. It is for that reason learned Sub Judge, instead of granting a decree for recovery of possession, granted the land value and the statutory benefits provided under the Land Acquisition Act. In such circumstances, appellants are not entitled to get a decree for recovery of possession and instead, are only entitled to get the damages granted by the learned Sub Judge. I find no substantial question of law is involved in the appeal. Appeal is dismissed, but without costs. 5th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 622/96 13 M.Sasidharan Nambiar, J. -------------------------- S.A.No.622 of 1996 -------------------------- JUDGMENT 5th February, 2010