IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 SA.No. 967 of 1991(F) ------------------------------ AS.186/1987 OF DISTRICT COURT, KOTTAYAM, OS.523/1983 OF PRINCIPAL SUB COURT, KOTTAYAM. .................... APPELLANT/ (IST RESPONDENT BEFORE THE LOWER APPELLATE COURT - IST PLAINTIFF BEFORE THE TRIAL COURT): -------------------------------------------------------------------------------------------------------------- 1. S. NAVAMANY AMMAL, W/O. SAMUEL, N.V. BAZZAR, MUNNAR, IDUKKI DISTRICT, (NOW RESIDING AT HOUSE NO. 477, POTHENMEDU, MUNNAR P.O., PIN - 685 612. *(DIED). *ADDL.APPELLANT : ALICE PONNIAH, W/O. LATE PONNIAH, MUTHANMUDI HARIJAN SETTLEMENT COLONY, PALLIVASAL VILLAGE, MUNNAR.P.O., DEVIKULAM. BY ADV. SRI.T.R.RAVI. RESPONDENTS/ APPELLANTS 2 TO 7 AND RESPONDENTS 2 TO 4 BEFORE THE LOWER APPELLATE COURT - 2ND PLAINTIFF AND DEFENDANTS 1 AND 2 BEFORE THE TRIAL COURT: ----------------------------------------------------------------------------------------------------------------------- 1. PRAKASH CHITTOOR, S/O. K.S. CHITTOOR, KIZHAKKEKALAPURACKAL HOUSE, MANAKKADU VILLAGE, THODUPUZHA TALUK. 2. CHITTOOR RAJAMANNAR, DO. DO. 3. DILEEP CHITTOOR OF DO. DO. 4. RANI B. CHITTOOR, D/O. DO. DO. **5. CHITTOOR SHATHIAMORTHY, S/O. DO. DO. *(DIED) 6. RESMI B., CHITTOOR, D/O. DO. DO. 7. FRANCIS, S/O. NARAYANASWAMY, THEVARKATTU HOUSE, ATTUKADU, PALLIVASAL, IDUKKI DISTRICT. S.A. NO. 967/1991: 8. N. GANAPATHY, S/O. NARAYANASWAMY, GANESH BHAVAN, MUNNAR, IDUKKI. 9. NESSAMMAL GANAPATHY, W/O. GANAPATHY, GANESH BHAVAN, MUNNAR. *ADDL. RESPONDENTS 10 TO 13 IMPLEADED: 10. CHELLAMMAL, W/O. LATE VELLAYAPPAN, S/O. SUSEELA KANAKARAJ, DOOR NO.10, MANGAYARKARASI NAGAR, NANGANELLOOR.P.O., MADRAS - 600061. 11. HENRY GEORGE, A. DORAIRAJ, S/O. SAMUEL, CHAMPATHY P.O, DINDIKAL, TAMIL NADU. 12. JAMES FRANCIS, S/O. LATE SAMUEL, ELANJI WEST, ELANJI P.O., THENKASSY TALUK, TIRUNALVELI, TAMILNADU. 13. S. RAJAN, S/O. LATE SAMUEL, C/O. JAMES FRANCIS, ELANJI WEST, ELANJI.P.O., THENKASSY TALUK, TIRUNALVELI, TAMILNADU. *ADDL. APPELLANT & RESPONDENTS 10 TO 13 ARE IMPLEADED AS PER ORDER DATED 14/02/2008 IN C.M.P. NO. 1447/2000. **ADDL. RESPONDENTS 14 & 15 IMPLEADED: 14. LEENA, W/O. CHITTOOR SATHIAMOORTHY, PANAMPILI HOUSE, MELOORKARA, CHALAKKUDY, THRISSUR DISTRICT. 15. KARTHIKEYAN, AGED 3 YEARS (MINOR), S/O. LATE CHITTOOR SATHIAMOORTHY, -DO- -DO-, REPRESENTED BY HIS MOTHER LEENA. **ADDL. RESPONDENTS 14 & 15 IMPLEADED AS THE LRs OF THE DECEASED 5TH RESPONDENT VIDE ORDER DATED 30/11/2007 IN I.A. 1720/2007. BY SRI.CHITTOOR RAJAMANNAR (PARTY-IN-PERSON - R2), ADV. SRI.V.N.ACHUTHA KURUP - R7 & 8, ADV. B.S.SWATHI KUMAR, ADV. SRI. JOHNSON P. JOHN - R1, 3, 4, 6, ADDL.R.14 & 15. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 1888/1991 IN S.A. NO. 967/1991 DISMISSED 14/02/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// prv. M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 967 OF 1991 ............................................ DATED THIS THE 14th DAY OF FEBRUARY, 2008 JUDGMENT First plaintiff in O.S.523 of 1983 on the file of Sub Court, Kottayam is the appellant. Respondents are the defendants. Appellant, along with her Manager, second plaintiff instituted the suit for a declaration of her possessory title and for permanent prohibitory injunction. Second respondent is her daughter. First respondent is the husband of second respondent. Third defendant is an Advocate, who was admittedly appearing for appellant in her Agricultural Income tax cases. Legal heirs of third defendant are the other respondents. Plaint schedule property is admittedly originally a kuthakapattom land comprised in survey No.569, 570 and 572 of Pallivasal village. It is admitted case that the said property was originally leased to Cheriyan George for a period of 12 years in 1123 M.E. Subsequently, the lease was renewed for 20 years under Cardamom Lease Rules, 1961. George later transferred his interest in favour of K.M.Kumar. Appellant claimed that the property was transferred by Kumar in her favour on 10.4.1963 and since then she has been in possession and enjoyment of the SA 967/1991 2 property and respondents 1 and 2, her daughter and son in law, have no right or possession over the property. It was contended that Mrs.Thankamma George, wife of the original grantee Cheriyan George applied before the Cardamom Settlement Officer for transfer of kuthakapattom right in favour of appellant and the matter is pending and respondents 1 and 2 later became on enimical terms with appellant and it appears that they, colluding with deceased 3rd defendant, attempted to defraud appellant. When she came to know about it, she put second plaintiff in charge of property for its management as she was residing 14 kms away from the plaint schedule property. There is a building in the property, apart from cultivation like pepper wines, coffee plants and some coconut trees. It was alleged that defendants have no manner of right or title or possession to the property and with the aid of first respondent, an Ex-MLA, after cooking up certain documents, third defendant attempted to trespass into the plaint schedule property and he has no right to dispossess appellant and therefore appellant is entitled to a decree for declaration of her possessory title and possession and also a decree for injunction restraining defendants from trespassing into the plaint schedule property. Respondents 1 SA 967/1991 3 and 2 remained exparte. Deceased third defendant resisted the suit contending that the property was obtained in the name of Kumar binami for respondents 1 and 2 and subsequently property was got transferred in the name of appellant also binami for respondents 1 and 2 and respondents 1 and 2 were in possession of the property and Thankamma George had not applied to the Cardamom Settlement Officer to transfer kuthakapattom lease in favour of appellant and respondents 1 and 2 were never on enimical terms with appellant and third defendant never colluded with respondents 1 and 2 and case of attempted trespass are all false. It was contended that appellant has no possessory title or possession to the plaint schedule property and third defendant has been in possession of the property from 1.4.1970 and the right, if any of appellant is lost by adverse possession. It was contended that I.C.George, the original grantee is no more and he was in possession of the property till 1960 and it was purchased binami in the name of Kumar and subsequently in the name of appellant, respondents 1 and 2 continued in possession of the property to screen possession of respondents 1 and 2 before the authorities, and first respondent was an Ex-MLA and he manipulated records in SA 967/1991 4 the name of Kumar as well as appellant and while respondents 1 and 2 were in possession, second respondent, in consultation with first respondent, transferred the right and possession to third defendant orally for consideration on 1.4.1970 and subsequently evidencing the transfer, executed Ext.B1 agreement on 4.2.1971 and since 1.4.1970, third defendant has been in possession of the property and he effected improvements like planting of pepper wines, coffee plants, and from 1975 onwards, third defendant is assessed to plantation tax and paid plantation tax, building tax and agricultural tax and while he was enjoying the property, respondents 1 and 2 fell out with him and they attempted to trespass into the plaint schedule property in December 1982 and third defendant was compelled to institute O.S.1 of 1983 before Munsiff Court, Devikulam and the present suit was instituted as a counter blast to that suit and appellant is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of PWs 1 to 3, Dws 1 to 4, Exts.A1 to A11 and B1 to B43, found that Ext.A1 petition was filed before Agricultural Income tax Officer for and on behalf of appellant by third defendant and it shows that in September 1970, appellant has been in possession of the SA 967/1991 5 property and if that be so, third defendant could not have obtained possession of the property under Ext.B1 in 1970. Learned Munsiff, on appreciation of the entire evidence found that appellant obtained possession of the property as a transferee from the assignee grantee Kumar and therefore granted a decree, declaring her possessory title and restraining defendants from trespassing into the plaint schedule property. 3. Third defendant challenged that judgment before District Court, Kottayam in A.S.186 of 1987. On his death pending appeal, other respondents were impleaded as additional appellants 2 to 7. Before the first appellate court, legal heirs of third defendant, additional appellants therein, produced documents with a prayer to receive them as additional evidence. Learned District Judge received the additional evidence finding that they are necessary for pronouncing the judgment as provided under clause (b) of Rule 27 of Order XLI of Code of Civil Procedure. A commission was also taken before the first appellate court and that report was marked Ext.C1. Learned District Judge on reappreciation of evidence found that trial court has not appreciated the evidence in the proper perspective or appreciated the case in the light of the pleadings and SA 967/1991 6 evidence on record. Finding that the suit was based on possessory title, learned District Judge found that case of appellant that respondents 1 and 2 were on enimical terms with appellant is not correct. Learned District Judge also found that execution of Ext.B1 whereunder third defendant claimed possession of the property was proved by the evidence of first respondent who was examined as DW3. It was also found that appellant was not in possession of the property as claimed by her and held that appellant is not entitled to the decree for injunction granted by the trial court. Appeal was allowed and the suit was dismissed. It is challenged in the second appeal. 4. Though appeal was admitted, no substantial question of law were formulated as mandated under Section 100 of Code of Civil Procedure. After hearing the learned counsel appearing for appellant and contesting respondents, the following substantial questions of law are formulated. 1) Whether first appellate court was justified in not upholding the possessory title when the transfer of the plaint schedule property by Kumar the assignee grantee in favour of appellant is admitted and the claim that it was binami in favour of respondents 1 and 2 was not established. SA 967/1991 7 2)When the evidence show that third defendant did not obtain possession of the property on 1.4.1970 as claimed by him, whether first appellate court was justified in interfering with the decree granted by trial court. 5. There is no dispute on certain facts. Plaint schedule property having an extent of 18.89 cents was originally part of kuthakapattom land. As seen from Ext.B24, the letter addressed by the Cardamom Settlement Officer, Devikulam to the Secretary of Board of Revenue dated 28.6.1979, plaint schedule property was originally granted on lease to Cheriyan George, a contractor of Munnar for a period of 12 years in 1123 ME under kuthakapattom lease. Subsequently the grantee offered a lease for a period of 20 years under Cardamom Lease Rules, 1961. The Special Officer, Cardamom Settlement, Devikulam directed him to remit Rs.1,150.58 towards the premium and arrears of Rs.961.68 for the previous pattom and Rs.188.9 towards the subsequent pattom on or before 10.2.1960. He remitted the amount on 12.12.1960 before the Sub Treasury Office, Devikulam. But no lease order was issued in his name. Subsequently, he transferred possession of the said property to K.M.Kumar, a merchant of Munnar. Kumar was in possession of SA 967/1991 8 the property. While so, he transferred the property in favour of appellant Smt. Navamany Ammal, as per an agreement dated 13.3.1963. Appellant is claiming possessory title under that transfer. Though third defendant contended that transfer was binami in favour of respondents 1 and 2, no evidence was adduced to establish the binami nature of the transfer. It is on that basis, appellant claimed title to the property. The title claimed is the possessory title. 6. In a suit for declaration of possessory title, appellant can succeed in the suit only if she continued to be in possession of the property. Though appellant contended that she continued to be in possession of the property till the filing of the suit and she was on enimical terms with her daughter second respondent and son in law first respondent, who is none other than an Ex-MLA, on appreciation of evidence, first appellate court found that the said case is not correct. Appellant had filed O.P.9609 of 1988 before this court under Article 226 and 227 of Constitution of India seeking adequate police protection. Ext.B44 is the copy of the petition which contains the exhibits annexed to the said O.P. Ext.P6 marked therein is the copy of a complaint filed by appellant before Sub Inspector of Police, Vellathooval. It was SA 967/1991 9 unambiguously stated by appellant that she has been residing with her daughter at Munnar. The evidence of DW3, first respondent, son in law, also establish that the case of enimity between appellant and first respondent is not correct. 7. Learned District Judge, on appreciation of evidence, found that appellant has not been in possession of the property as claimed by her. That factual finding was arrived at on proper appreciation of evidence. The argument of learned counsel is that Ext.B1 shows that third defendant obtained possession of the property on 1.4.1970 and it is thereafter as the Advocate appearing for appellant, third defendant filed Ext.A1 application before the Agricultural Income tax Officer asserting the possession of appellant in September 1970 and requesting for a local inspection and therefore third defendant could not have obtained possession earlier as seen in Ext.B1. It was also argued that when it is admitted by third defendant that plaint schedule property was obtained by appellant and plea of binami was not established, third defendant could not have obtained the property from respondents 1 and 2 and as third defendant has no case that he obtained the property from appellant, and so case of appellant that she continued to be in possession of the property SA 967/1991 10 is to be upheld. It was argued that Ext.A2 to A9 establish that appellant was assessed for agricultural income tax for the plaint schedule property even subsequently and therefore possession of appellant is to be established. As rightly argued by learned counsel appearing for respondents, Ext.B24 is crucial to decide the question of possession. Ext.B24 letter referred to earlier establish that subsequently the grantee assignee K.M.Kumar transferred possession of the property to appellant in 1963 and thereafter in 1971, second respondent, the daughter of appellant gave possession of the property to third defendant and third defendant has been in possession of the property. Under Ext.B24, the Cardamom Settlement Officer has requested the Secretary, Board of Revenue to take action for taking back possession from third defendant who is in unauthorised possession of the property. Ext.B24 shows that as per the Village records kuthakapattom upto 1969-70 was remitted and from 1969-70 it was remitted by third defendant on behalf of Cheriyan George and thereafter third defendant obtained possession in 1971 and his sons and brother claimed to be in possession of the property, though there are no records. In the light of Ext.B24, the factual finding of first appellate court that SA 967/1991 11 appellant is not in possession of the property is perfectly correct. As stated earlier, even though appellant obtained transfer of the property from K.M.Kumar and respondents 1 and 2 cannot claim title to the property under Ext.B1, they in fact transferred possession of the property to third defendant. True, possession of third defendant cannot be termed illegal as respondents 1 and 2 have no right to transfer the property. But at the same time, evidence establish that third defendant continued his possession of the property. In the absence of any other evidence to prove that appellant has been in possession of the property at least within a period of 12 years prior to the institution of the suit is not entitled to a decree for declaration of possessory title. Therefore appellate court rightly dismissed the suit. 8. But before parting with the case, records reveal that as per Ext.B24 letter dated 28.6.1979, Cardamom Settlement Officer, Devikulam had requested the Secretary, Board of Revenue to take necessary action as provided under Cardamom Rules for unauthorised occupation of the plaint schedule property. Under Ext.B24, it was reported that transfer of the property by the grantee Cheriyan George in favour of K.M.Kumar is in violation of the kuthakapattom lease which does SA 967/1991 12 not permit alienation of the property. It was also pointed out that under the Cardamom Rules, the property cannot be transferred or used for any other cultivation and the rules were violated, and government is entitled to resume possession of the land. It was also reported that third defendant who is in unauthorised occupation of the land is to be evicted from the land or an offer of lease is to be made to him under the Cardamom Lease Rules. Unfortunately, Secretary to the Board of Revenue has not acted on Ext.B24 request. Under the Rules for lease of Government lands for cardamom cultivation, after confirmation of the lease, an order of lease shall be issued to the lessee in the form in Appendix II of the Rules. Ext.B24 shows that no such order of lease was issued. Appendix II shows that under clause (9) there is a specific provision prohibiting any transfer of the lease. Clause 9 reads:- “ Lessee shall not assign or underlet the benefits arising under the lease or a part thereof without the prior sanction of the District Collector”. 9. In view of this specific provision under the rules government, when informed about the violation of the rules under Ext.B24, which entitles government to resume possession SA 967/1991 13 of the land from the unauthorised occupation, should have acted without wasting time. In spite of the fact that more than 35 years elapsed from the date of Ext.B24, no action was taken. In such circumstances, Commissioner of Land Revenue, Thiruvananthapuram is directed to take appropriate action pursuant to Ext.B24 letter in accordance with law. Registrar (Judicial) is directed to send a copy of this judgment to the Chief Secretary, State of Kerala, along with a copy of Ext.B24 to take appropriate action without further delay. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-