IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 AS.No. 603 of 1996(B) --------------------- OS.108/1993 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): ------------------------- RAGHAVAN, S/O.RAMAKRISHNAN NADAR, CHELLAYYA ARAMAM, KANAKA NAGAR, KOWDIAR P.O, THIRUVANANTHAPURAM. BY ADV. SRI.S.JAMES VINCENT RESPONDENT(S): ------------------------------ 1. P.K.KUTTAN, S/O.KRISHNAN NADAR, LAL BHAVAN, KILACHAVILA, KOTTUKAL DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA. 2. P.K.KOCHUKRISHNAN, S/O.KRISHNAN, VATTAVILA MELE PUTHEN VEEDU, KOTTUKAL, NELLIMOODU P.O, NEYYATTINKARA. 3. P.K.BHARGAVAN ALIAS BHASKARAN, S/O.KRISHNAN NADAR, PANAVILA VEEDU, PAROTTUKONAM, THIRUVANANTHAPURAM. 4. P.K.CHANDRASEKHARAN, S/O.KRISHNAN NADAR, MEKKEKARA VEEDU, PERUMGOTTUKONAM, KOTTUKAL DESOM, NELLIMOODU P.O, NEYYATTINKARA. 2 5. GEORGE, S/O.SANKARAN NADAR, MEKKEKARA VEEDU, PERUMGOTTUKONAM, KOTTUKAL, NELLIMOODU P.O, NEYYATTINKARA. 6. SURENDRAN, S/O.GEORGE, MEKKEKARA VEEDU, PERUMGOTTUKONAM, KOTTUKAL, NELLIMOODU P.O, NEYYATTINKARA. 7. KUTTAPPAN, S/O.GOVINDAN, CHELLARIODE VEEDU, KOTTUKAL, NELLIMOODU P.O, NEYYATTINKARA. 8. WILSON, S/O.PONNAYYAN, THEKKEKARA VEEDU, KOTTUKAL, KUNJUKONAM, NELLIMOODU P.O, NEYYATTINKARA. 9. ASOKAN, S/O.RAGHAVAN, CHILLARICODE, MONTHIVILA VEEDU, NELLIMOODU P.O, NEYYATTINKARA. 10. ARJUNAN, S/O.RAGHAVAN, PERUMGOTTUKONAM, MEKKEKKARA PUTHEN VEEDU, NELLIMOODU P.O, NEYYATTINKARA. ADV. SRI.M.BALAGOVINDAN,D.KISHORE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/06/2009, ALONG WITH AS NO.72 OF 1998 , THE COURT ON 30/06/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR , J. = = = = = = = = = = = = = = = = = = = = A.S. Nos.603 of 1996 & 72 of 1998 = = = = = = = = = = = = = = = = = = = = Dated this the 30 th day of June, 2009. JUDGMENT The common appellant in these appeals is one Raghavan Nadar who was the plaintiff in O.S. No. 108 of 1993 on the file of the Sub Court, Neyyattinkara and the defendant in O.S. No. 60 of 1996 on the file of the Munsiff's Court, Neyyattinkara. A.S. No. 603 of 1996 arises out of O.S No. 108 of 1993 and A.S. No. 72 of 1998 arises out of O.S. No. 60 of 1996 referred to above. O.S. No. 108 of 1993 filed on 12.03.1993 originally before the Sub Court, Thiruvananthapuram was subsequently transferred to the Sub Court, Neyyattinkara. The said suit was for damages to the tune of Rs.55,000/- allegedly for the destruction caused by the ten defendants therein by cutting down the trees and by trespassing into the plaint schedule property consisting of 17.250 cents of land comprised in Survey 94/9A of A.S. Nos. 603 of 1996 & 72 of 1998 : 2 : Kottukal village in Neyyattinkara Taluk and for the forcible construction of a road by the defendants who were either trespassers or office bearers of a committee. 2. O.S. No. 60 of 1996 before the Munsiff's Court, Neyyattikara was filed on 19.01.1996 by Kamalamma (respondent in A.S. No. 72 of 1998) who is the wife of Kuttan, the 1st defendant in O.S. No. 108 of 1993 seeking a decree of declaration of her title and possession over the plaint schedule property and for a prohibitory injunction in respect of the plaint schedule property admeasuring 22 cents shown as comprised in Survey No. 94/10 of Kottukal village in Neyyattinkara taluk. 3. The case of the appellant/plaintiff in O.S. No. 108 of 1993 was as follows:- The plaint schedule property was obtained by the plaintiff as per Ext.A1 sale deed dated 29.06.1984 from his brother Sudhakaran who in turn had obtained the property by way of assignment from the Government under the A.S. Nos. 603 of 1996 & 72 of 1998 : 3 : Kerala Land Assignment Act as per Ext.B1 order of assignment dated 30.03.1977. On 03.07.1992, the ten defendants trespassed into the plaint schedule property and cut and removed six high yielding coconut trees, three coconut saplings and cropped 520 coconuts causing a total loss of Rs.94,520/- which was limited to Rs.55,000/-. 4. The ten defendants to O.S. No. 108 of 1993 resisted the suit contending inter alia as follows:- The suit is not maintainable either in law or on facts. The plaintiff is not the owner of 17.250 cents of land shown in the plaint schedule. The total extent of Survey 94/9A of Kottukal village is 94 cents which is a 'kulam puramboke'. All puramboke lands including the said 94 cents have vested in the Kottukal Panchayat which is in possession and control of those puramboke lands. The Panchayat committee used to auction the trees standing in the above property every year and the auction purchasers were taking the usufructs from the trees so auctioned. Sudhakaran, the brother of A.S. Nos. 603 of 1996 & 72 of 1998 : 4 : the plaintiff has not acquired any right in respect of the plaint schedule property. The plaintiff has created a false document in collusion with his brother. The property shown in Ext.B1 patta and Ext.A1 sale deed are different. The Government had no right over the property so as to assign the same to the plaintiff's brother. Ext.B1 order is void ab initio. It is not proved that there was only a three feet wide pathway passing through the plaint schedule property and the defendants were using the same with the consent of the plaintiff. This defendants have not attempted to cut down the trees and widen the pathway nor have they trespassed into the plaint schedule property on 05.07.1992 or any other day. The plaintiff has not suffered any damage and the suit is to be dismissed with compensatory cost. 5. On the side of the plaintiff, three witnesses were examined as PWs 1 to 3 of whom PW1 is the plaintiff himself and Exts.A1 to A11 were got marked. On the side of A.S. Nos. 603 of 1996 & 72 of 1998 : 5 : the defendants, six witnesses were examined as DWs 1 to 6 and Exts. B1 to B3 were marked. Exts. X1 and X2 survey plan and purmaboke register and Ext.C1 report of the Advocate Commissioner deputed by the trial court were marked. 6. The case of the plaintiff Kamalamma in O.S. No. 60 of 1996 filed against the appellant herein can be summarised as follows:- The plaint schedule property admeasuring 22 cents comprised in Survey 94/10 of Kottukal village in Neyyattinkara taluk devolved on the plaintiff as per Ext.A1 sale deed dated 10.12.1992. The plaintiff is in possession and enjoyment of the plaint schedule property ever since Ext.A1 sale deed. The property of the defendant is situated to the east of the plaint schedule property. The plaint schedule property was originally a paddy field which was re-claimed subsequently. The predecessor-in-interest of the plaintiff planted the coconut trees in the plaint schedule A.S. Nos. 603 of 1996 & 72 of 1998 : 6 : property and the trees are now yielding. The defendant is attempting to trespass into the suit property and trying to commit waste thereon. On 14.01.1996, the defendant attempted to take yield from the coconut trees in the suit property and the said attempt was foiled by the timely intervention of the plaintiff and the people of the locality. The defendant may repeat the attempt again to the detriment of the plaintiff. Hence the suit. 7. The suit was resisted by the appellant (in A.S. No. 72/1998) contending inter alia as follows:- The description of the plaint schedule property is not correct. It has been so described as to dishonestly include the property of the defendant. The northern and eastern portions of the plaint schedule property are the parts of the property of this defendant and are in the exclusive possession of this defendant. The northern portion of the plaint schedule property is a thottu varamba which is the southern part of the property of this defendant comprised in A.S. Nos. 603 of 1996 & 72 of 1998 : 7 : Survey No.94/9A. The aforesaid property of this defendant is having an extent of 17.250 cents and it devolved on this defendant as per Ext.B5 sale deed dated 29.6.84. It was executed by Sudhakaran, the brother of this defendant. The said Sudhakaran got the said property as per Ext.B4 Patta under the Kerala Land Assignment Act as L.A.II 1/77 issued by the Tahsildar, Neyyattinkara. The eastern portion of the plaint schedule property is the western part of 12 cents of property which devolved on this defendant as per Ext.B7 partition deed dated 1.02.1963. This defendant is in possession and enjoyment of the aforesaid properties . While so, the plaintiff's husband P.K.Kuttan who was the president of the Kottukal Panchayat during that period made an attempt to cut down coconut trees from the 17.250 cents of property referred to above and this defendant had filed O.S.No.177/91 against the Kottukal Panchayat, the president of the said Panchayat and another person by name Chandrasekharan for A.S. Nos. 603 of 1996 & 72 of 1998 : 8 : perpetual injunction. In the written statement filed by the Panchayat and the president of the Panchayat in the said suit, it was admitted that the property was a purampoke land and that the 17.250 cents of land belonging to this defendant who was the plaintiff in the said suit consisted of Marthandamkulavarambu and Thottuvarambu. Eventhough O.S.No.177/91 was initially dismissed, it was decreed in appeal by the District Court, Thiruvananthapuram in A.S.No.306 of 1992 . After the dismissal of O.S.No.177/91 and before the filing of the appeal by this defendant, the husband of the present plaintiff along with others trespassed into the property of this defendant and cut down 6 coconut trees. There was a case registered as Crime No.93/92 before the Kanjiramkulam Police Station. The Police, after investigation filed final report and it is now pending before the J.F.C.M-I, Neyyattinkara as C.C.No.465/92. An attempt by the Panchayat to auction the right to take usufructs from the coconut trees in the 17.250 A.S. Nos. 603 of 1996 & 72 of 1998 : 9 : cents of property was stayed by the District Collector. Against the patta issued in favour of Sudhakaran, the brother of this defendant, the Panchayat filed an appeal before the Assistant Collector, Thiruvananthapuram. The said appeal was dismissed. In order to wreak vengeance on this defendant the plaintiff's husband purchased some paddy field in Survey No.94/10 belonging to one Parameswaran situated near the property of this defendant. The vendor under the sale deed (Parameswaran) had no right or possession over the property held by this defendant. Mutation was wrongly effected in the name of the plaintiff. Against the false mutation effected in the name of the plaintiff, this defendant had filed an appeal before the Assistant Collector, Thiruvananthapuram and the same is pending now. It was after dishonestly effecting mutation of the property in the name of the plaintiff that the plaintiff's husband and another committed theft of 500 coconuts from the property of this defendant on 1.4.1996. A.S. Nos. 603 of 1996 & 72 of 1998 : 10 : This resulted in the Kanjiramkulam Police registering crime No.7/96 at the instance of this defendant. It is at that stage that the plaintiffs have instituted the present suit claiming rights over the property on the strength of Ext.A1 sale deed dated 10.12.92. The suit is only to be dismissed. 8. The learned Munsiff framed 7 issues for trial. On the side of the plaintiff in O.S.No.60/96 three witnesses were examined as PWs.1 to 3 of whom PW1 is the husband of the plaintiff. Exts.A1 to A4 were got marked. On the side of the defendants the appellant herein was examined as DW1. DWs.2 and 3 are the Advocate Commissioners. The appellant got marked Exts.B1 to B16. O.S.No.108/93 filed by the appellant herein was, after trial, dismissed by the Sub Judge as per judgment and decree dated 19.8.95. O.S.No.60/96 filed by Kamalamma against the appellant was decreed by the learned Munsiff as per judgment and decree dated 30.7.96. It is aggrieved by the decree passed in O.S.No.108/93 that the plaintiff therein has filed A.S. Nos. 603 of 1996 & 72 of 1998 : 11 : A.S.No.603/96 and it is aggrieved by the decree passed in O.S.No.60 of 1996 that the defendant therein has filed A.S.No.72/98. 9. I heard the learned counsel appearing on either side. 10. The learned counsel appearing for the common appellant in these two appeals made the following submissions before me in support of the appeals:- O.S.No.177/91 was a suit filed by the appellant against the Panchayat and the present 1st defendant and his brother (who is the present 4th defendant) seeking a perpetual injunction against cutting open a road through the property of the appellant. Eventhough the trial court had dismissed the said suit, on appeal preferred by the appellant as A.S.No.306/92 before the District Court, Thiruvananthapuram, the suit was decreed. In a Second Appeal filed as S.A.No.653/95 before this Court by the Kottukal Panchayat and by the President of Kottukal A.S. Nos. 603 of 1996 & 72 of 1998 : 12 : Panchayat who was the husband of the plaintiff in O.S.No.60 of 1996, this Court as per Ext.A10 judgment dated 1.6.1999 dismissed the second appeal holding that it was for the defendants to challenge the patta issued in favour of the appellant's brother and recover possession of the property in question from the plaintiff, if they had title over the property. The Kottukal Panchayat had attempted to cancel the patta issued in favour of the appellant's brother by filing an appeal before the Assistant Collector. The said appeal was dismissed on 22.2.1996. The trial court had dismissed O.S.No.108 of 1993 for the reason that O.S.No.177/91 filed by the appellant herein was dismissed by the trial court. The court below overlooked the fact that the said suit (O.S.No.177 of 1991) was decreed in appeal. Subsequently, and the appellate decree has been confirmed in second appeal. Another ground stated by the court below to dismiss O.S.No.108 of 1993 is that the plaintiff's title was not decided in O.S.No.177 of 1991. It is true that the said A.S. Nos. 603 of 1996 & 72 of 1998 : 13 : suit was one for injunction. But then, this Court in S.A.No.653 of 1995 had found that it was for the defendants 1 and 2 (in O.S.No.177 of 1991) who filed the second appeal to challenge the patta in favour of the present appellant's brother and recover possession if they had title. Yet another reason given by the trial court is that the description of the property is inconsistent. For arriving at the said finding the court below has compared the patta with Ext.A1 Sale deed dated 29.6.1984. The court below failed to see that patta issued under the Land Assignment Act need necessarily show the boundaries. Infact, the patta was not produced by the appellant. When the appellant produced a photocopy of the patta it was objected to by the defendants who themselves produced Ext.B1, which is also a photocopy which has been relied on by the court below for comparing the properties. As for the difference in the survey numbers the court below loss sight of the fact that the title deed of the appellant namely Ext.A1 sale deed A.S. Nos. 603 of 1996 & 72 of 1998 : 14 : dated 29.6.1984 had correctly shown the survey number as 94/9A. Eventhough the Survey number of the property claimed by Kamalamma as per Ext.A1 sale deed dated 10.12.1992 in O.S.No.60/96 was 94/10, it was really survey number 94/9A by fraudulently effecting mutation by including the property of the appellant. This was so found by the R.D.O in the order dated 29.12.1998. Eventhough aggrieved by the appellate order dated 22.2.1996 of the R.D.O the Panchayat filed a writ petition before this Court as O.P.4211/2000, the said writ petition was dismissed on 30.5.2006 noticing that as early as in 1977, land in dispute was ordered to be assigned to Sudhakaran the brother of the appellant and the appeal filed by the Panchayat challenging the assignment order was dismissed by the Assistant Collector. This means that the assignment given by the Government to Sudhakaran with regard to the plaint schedule property in O.S.No.108/93 was upheld. Parameswaran, the assignor of Kamalamma, the wife of the A.S. Nos. 603 of 1996 & 72 of 1998 : 15 : said Kuttan (the president of the Kottukal Panchayat) had executed Ext.A1 Sale deed dated 10.12.1992 in favour of the plaintiff in O.S.No.60/96 by including properties not belonging to him but belonging to the appellant. The order of the R.D.O dated 29.12.1998 in the appeal filed by the appellant alleging correction of thandaper by Kamalamma has become final. The said order operates as res judicata or at any rate the doctrine of issue of estoppel precludes the plaintiff in O.S.No.60/96 from re-agitating the said question. The appellant relied on the decisions reported in Hope Plantation Ltd v. Taluk Land Board (1999(1) KLT 331 SC), Iswar Dutt v. Land Acquisition Collector (2005 AIR SCW 3578) and R.C.Tiwari v. M.P.State Co-operative Marketing Federation Ltd (AIR 1997 SC 2652). In A.S.No.603/96, the appellant had filed CMP Nos.2237/96, 6840/2000, I.A.No.1810/2007 and I.A.No.3945 of 2008 for reception of additional evidence. In A.S.No.72/98, the appellant had filed CMP No.3577/999 for reception of A.S. Nos. 603 of 1996 & 72 of 1998 : 16 : additional evidence. The additional evidence produced by the appellant will substantiate the contentions of the appellant in both the appeals. 11. Advocate Sri.Balagovindan, the learned counsel for the contesting respondents in both the appeals opposed the appeals contending, inter alia, that the judgments under appeal do not call for any interference and that the additional documents sought to be produced in evidence in these appeals are not liable to be admitted in evidence by resort to Order 41 Rule 27 C.P.C. 12. After hearing both sides at length, I am of the view that it will be too early for this Court to consider whether the additional documents produced as per the aforesaid interlocutory applications are to be received in evidence or not. Many of the records in these appeals have been gutted by fire in an unfortunate occurrence that took place in the old High Court Building. 13. If as a matter of fact the order of assignment and A.S. Nos. 603 of 1996 & 72 of 1998 : 17 : the patta issued in favour of the plaintiff's brother had become final and had therefore become unassailable, then Ext.A1 Sale deed dated 29.6.1984 in O.S.No.108/93 may confer valid title to the plaintiff in respect of 17.250 cents of land comprised in 71/94A in Kottukal village. But then, certain proceedings were initiated for challenging the assignment orders issued in favour of the plaintiff's brother Sudhakaran. The court below did not have the advantage of perusing the entire records pertaining to those proceedings. If the order dated 22.2.1996 passed by the Assistant Collector has been upheld by this Court in O.P.No.4211/2000, then it may not be possible for the Panchayat to assail the patta granted in favour of the appellant's brother. Likewise, if the order dated 29.12.1998 of the RDO in the appeal filed by the appellant challenging the correction of thandaper etc. in favour of Kamalamma, the plaintiff in O.S.No.60/1996, has become final, then also certain legal consequences may follow. The trial court did A.S. Nos. 603 of 1996 & 72 of 1998 : 18 : not have the advantage of perusing the proceedings in those matters. The impact of the judgment in S.A.No.653 of 1994 also does not appear to have been considered by the learned Sub Judge. Even if it could be argued that the final verdict in O.S.No.177/1991 was not rendered in a litigation inter partes, it may not be totally irrelavant having regard to the dual capacity occupied by Sri.Kuttan. Eventhough the appellant has produced additional documents in this appeal, in the light of the objections raised and also having regard to the fact that those documents will have to be formally proved even if they are to be received in evidence, I am of the view that these cases should go back to the trial court for disposal afresh. In the fitness of things both suits should have been tried by the same court though not by way of joint trial. Having regard to the principles governing joint trial it may not be possible to order joint trial of these two suits. But at the same time, if the same court were to try both the cases in quick A.S. Nos. 603 of 1996 & 72 of 1998 : 19 : succession, then probably that court might be in a more advantageous position to appreciate the rival contentions of the parties. Since I am not admitting the additional evidence filed by the appellants in these appeals those petitions are dismissed with liberty to the appellant to take back those documents and produce additional evidence before the trial court. The fact that many of the records in these cases have been destroyed in the fire that occurred in the old High Court building, also cannot be lost sight of. 14. The judgments and decree passed in O.S.No.108/93 and O.S.No.60/96 are accordingly set aside. O.S.No.60/96 shall stand transferred to Sub Court, Neyyattinkara and shall be disposed of along with O.S.No.108/93 in quick succession but not by way of joint trial. Both sides shall be entitled to adduce further evidence, if so advised. The parties shall appear before the Sub Court, Neyyattinkara on 29.7.2009 without any further notice . The Sub Court, Neyyattinkara shall dispose of both A.S. Nos. 603 of 1996 & 72 of 1998 : 20 : the suits in quick succession expeditiously and at any rate within ten months of receipt of a copy of this judgment. In case that court is not able to adhere to the above time limit it shall send a report to this Court through proper channel explaining the reason as to why the aforesaid time limit could not be adhered to. In the result both these appeals are allowed and remanded to the Sub Court, Neyyattinkara for disposal of the two suits afresh. There shall be no order as to costs. The court fees paid on the memoranda of appeal shall be refunded to the appellant. Dated this the 30th day of June, 2009. V. RAMKUMAR, JUDGE. sj A.S. Nos. 603 of 1996 & 72 of 1998 : 21 :