IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 RFA.No. 154 of 2005() -------------------------------- OS.NO.215/1996 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/PLAINTIFFS. ------------------------------------------ 1. SAMBHASIVAN, S/O.VALSAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 2. KARTHYAYANI, D/O. VALSALAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKUALAM DISTRICT. 3. UNNIKRISHNAN, S/O.VALSAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 4. SHEELA, D/O.VALSAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 5. SAJI, D/O.VALSAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 6. P.K.RAJAMMA, W/O.KAILASAN, ARAYASSERYPARAMBIL HOUSE, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT. 7. P.K.KANJANA, W/O.KALADHARAN, PANDARAPARAMBIL, MULAVUKADU DESOM, ERNAKULAM DISTRICT. 8. SULJANA, W/O.RAJENDRAN, PANDARAPARAMBIL, MULAVKADU DESOM, ERNAKULAM DISTRICT. 9. SREEREKHA, D/O.RAJENDRAN, MINOR REPRESENTED BY HER MOTHER, SULJANA, W/O.RAJENDRAN, PANDARAPARAMBIL, MULAVUKADU DESOM, ERNAKULAM DISTRICT. 10. P.K.BALACHANDRAN, S/O.KRISHNAN, PANDARAPARAMBIL, MULAVUKADU DESOM, ERNAKULAM DISTRICT. sts 2/- -2- R.F.A.NO.154/2005 11. SURESH KUMAR, S/O.KRISHNAN, PANDARAPARAMBIL, MULAVUKADU DESOM, ERNAKULAM DISTRICT. BY ADVS. SRI.T.B.THANKAPPAN SRI.R.GIRISH SMT.ALICE THOMAS SMT.P.V.RADHAMANI RESPONDENT(S): DEFENDANTS. -------------------------------------------------- 1. PRABHA, D/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, ERNAKULAM DISTRICT. 2. BHARGAVI, W/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 3. PRAKASHAN, S/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADOM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 4. PRASAD, S/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 5. PRASSANAN, S/O.VISWAMBHARAN, CHAKKALCKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 6. BABU, S/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 7. PRAMEELA, D/O.VISWAMBHARAN, CHAKKALACKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 8. SAJI, S/O.VISWAMBHARAN, CHAKKALACKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 9. PRIYA, D/O.VISWAMBHARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 10. ALLY, W/O.DINAKARAN, CHAKKALACKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 11. SABU, S/O.DINAKARAN, CHAKKALACKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 3/- -3- R.F.A.NO.154/2005 12. MANJU, D/O.DINAKARAN, CHAKKALACKAL, JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 13. RAJITHAN, S/O.DINAKARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM. DISTRICT. 14. SELVARAJ, S/O.DINAKARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 15. AMBILY, D/O.DINAKARAN, CHAKKALACKAL, JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTIRCT. 16. AROMAL, S/O.DINAKARAN, CHAKKALACKAL, JUNDANDAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 17. RAJEEV, S/O.DINAKARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 18. RESHMA D/O.DINAKARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKUALAM DISTRICT. 19. SHERIYA, D/O.DINAKARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 20. NINMANI, W/O.DIVAKARAN, CHAKKALACKAL JUNDANADAPPIL VALLARPADAM DESOM, MULAVUKADU VILLAGE, ERNAKULAM DISTRICT. 21. SUSMITHA. D/O.DIVAKARAN, CHAKKALACKAL, JUNDANDAPPIL, VALLARPADAM DESOM, MULAVUKADU VILLAG ERNAKULAM DISTRICT. 22. SUDHARMA, D/O.DIVAKARAN, CHAKKALACKAL JUNDANADAPPIL, VALLARPADAM DESOM, MULAVUKAD VILLAGE, ERNAKULAM DISTRICT. R1 TO R12,R14 TO 18,R20 TO R22 BY ADV. SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - R.F.A..No. 154 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2011 J U D G M E N T The plaintiffs who were non-suited by the court below are the appellants. 2. The suit was for one recovery of possession on the strength of title. The facts absolutely necessary for the disposal of the appeal are as follows:- Property admittedly belonged to one Valan Kochappan. Valan Kochanppan had three sons, namely Sekharan, Krishnan and Kumaran. By Ext.A1 partition deed, the three sons after the death of Kochappan partitioned the property among themselves and each of them were given definite share. The claim of the plaintiffs is that since Krishnan and Kumaran were of very young age, Sekharan was looking after the properties and given income to them also. Even after the death of Sekharan, his legal heirs continued to be in the management of the property and they used to give income due to the plaintiffs from the respective properties. Since -:2:- R.F.A..No. 154 of 2005 the plaintiffs did not wish to continue the management under the legal heirs of Sekharan, they filed a suit for partition as O.S.No.95 of 1984. One of the daughters of Krishnan also filed a suit as O.S.No.449 of 1984. Both the suits were jointly trialled and disposed of by a common judgment. Both the suits were dismissed. O.S.No.95 of 1984 was dismissed, holding that since there had already been a partition, there is no question of repartition in the property and the remedy of the appellants lies somewhere else. Therefore they had instituted another suit for recovery of possession on the strength of title. 3. The suit was resisted by the defendants. They disputed that the plaintiffs had any manner of rights over the suit property. They denied the arrangement regarding the management of the property stated in the plaint. According to them the decision in O.S.No.95 of 1984 concludes the issue. They would contend that in 1122M.E. -:3:- R.F.A..No. 154 of 2005 the properties which were held by Kochappan were sold in auction for realisation of rent arrears to the jenmi Paliyam and that were purchased in auction by Dinakaran, the predecessor in interest of defendants 10 to 19 as well as Viswambharan. Since then they have been in possession of the property and a partition was effected in the year 1953 which is evidenced by Ext.B21. At no point of time, the plaintiffs were given their shares as claimed by them. Ever since 1122 M.E., the property has been treated as the absolute property of Dinakaran and Viswambharan and the plaintiffs have no manner of right over the suit property. It is also contended that the sale held under Cochin Revenue Recovery Act is conclusive and the defendants have also obtained purchase certificates in respect of the suit property and therefore the plaintiffs cannot claim that have any manner of right over the suit property. Finally they contended by way of abundant caution that, if at all the -:4:- R.F.A..No. 154 of 2005 plaintiffs had any manner of right over the suit property, that was lost by adverse possession and limitation. 4. On the basis of the above pleadings issues were raised. The evidence consists of the testimony of PWs 1to 4 and the documents marked and Ext.A1 to A3 from the side of the plaintiff. The defendants had DW1 examined and Ext.B1 to B42 marked. 5. On a consideration of the materials before it, the court below came to the conclusion that the claim of the plaintiffs is barred by adverse possession and limitation and dismissed the suit. It is the said judgment and decree that are assailed in this appeal. 5. The question that arises for consideration is whether the finding of the court below is justified? 6. The learned counsel appearing for the appellants pointed out that, there is no definite finding regarding any of the issues involved in the suit and the finding regarding -:5:- R.F.A..No. 154 of 2005 the adverse possession and limitation is clearly unsustainable in law. The case put forward by the plaintiffs, according to the learned counsel was that at time of partition in the year 1101, Krishnan and Kumaran were of young age and therefore Sekharan took over the management of the property set apart to all the three of them in the partition. That arrangement continued. Since they did not wish to continue the management and the suit has been laid. The learned counsel drew attention of this Court to the fact that the finding of the court below that the suit is barred by resjudicata cannot be sustained for the simple reason that an earlier suit namely O.S.No.95 of 1984 was one for partition, while the present suit is one for the recovery of possession on the strength of title. The learned counsel also drew the attention of this Court to the fact that the finding on the basis of Exts.B5 and B6 is neither conclusive nor definite. The finding is that the plaintiffs -:6:- R.F.A..No. 154 of 2005 have lost their title by adverse possession and limitation. One inconsistent and contradictory finding cannot be sustained. Therefore the learned counsel pointed out that the decree has to be set aside. 7. Per contra, the learned counsel appearing for the respondents pointed out that the defendants had produced number of documents to show that the plaintiffs had no subsisting title to the suit property. Even assuming that there was a partition in the year 1101 and their properties were set apart to the three sons of Kochappan. In the year 1122 by the revenue sale Dinakaran and Viswambharan obtained the property and they have obtained sales certificates in their names. Going by the provisions of the Cochin Revenue Recovery Act, the issuance of the sales certificates is the conclusive of the sale and right of the person in whose name it is issued. There are enumerable documents produced by the defendants to show that from -:7:- R.F.A..No. 154 of 2005 1122 onwards they had been enjoying the property as if it belonged exclusively to them and they had obtained purchase certificates also. These documents would clearly show, according to the learned counsel that the plaintiffs had no title to the suit property and therefore the suit was rightly dismissed. 8. If for the reasons mentioned by the counsel appearing the respondents, the suit had been dismissed that would have formed formidable basis for the decree. The finding of the court below is that the suit is barred by resjudicata cannot be sustained. True, the plaintiffs had filed an earlier suit as O.S.No.95 of 1984, seeking partition of the property. That suit was dismissed on the ground that the properties had already been partitioned and there cannot be a re-partition in the same property. And the plaintiffs in the said suit was the plaintiffs herein also, were left to pursue the remedy available to them under law. -:8:- R.F.A..No. 154 of 2005 That had driven them to file the present suit. One fails to understand that how the principle of resjudicata can be applied to the facts of the case. That finding has necessarily to be set aside. 9. The learned counsel appearing for the respondents took this Court through the various documents produced by the defendants and pointed out that it is clear that from 1122M.E. onwards the defendants had been exercising absolute right and possession over the property and that the plaintiffs had no title to the suit property. The learned counsel referred to Exts.B1,B2,B3,B4,B5 and B21 and the provisions of Cochin Revenue Recovery Act also. 10. It could not be said that the contentions are without force. The lower court has not considered any of these aspects. The court had neither held that the plaintiffs had lost their title if any by revenue sale nor that the plaintiffs have subsisting title. The finding in that regard is -:9:- R.F.A..No. 154 of 2005 incomplete and inconsistent. If as a matter of fact, by virtue of the revenue sale, the plaintiffs have lost their title, then the suit had to be dismissed on that ground. There is no positive finding in that regard at all. In fact it is not discernible from the judgment of the lower court whether the court below had accepted the claim put forward by the defendants that by virtue of Exts.B4 and B5 sales annex and by subsequent purchase certificates obtained by them, the plaintiffs have lost their title. 11. At this point of time, one aspect needs to be noticed. It is pointed out by the learned counsel for the appellants that on the previous occasion when the partition suit was considered these aspects came up for consideration namely the sale certificate obtained in the revenue recovery sale. The court had then occasion to hold that since the notice was issued to a dead person, the sale may not be binding on the plaintiff. -:10:- R.F.A..No. 154 of 2005 12. It is true that in the said suit there was such a finding but in appeal when cross objections were filed by the plaintiffs against the defendants in the said suit, the observations regarding Exts.B1 and B2 in the said suit which corresponds to Exts.B4 and B5 in the present suit was set aside and the question was left open to be decided in the appropriate proceedings. 13. There is no discussions about Exts.B1,B2,B3,B4 andB5 or to the conclusive nature of the sale certificates obtained by the defendants nor the evidenciary value of the purchase certificates said to have been obtained by the defendants in respect of the suit properties. Of course, if it is found that the purchase certificates are obtained by fraud or coercion, it could be a different issue. There has to be finding in that regard and the consideration of the documents produced by both sides are absolutely necessary for arriving at a definite conclusion. -:11:- R.F.A..No. 154 of 2005 14. Above all, the findings of the court below that the plaintiffs have lost their title by adverse possession and limitation would indicate that the plaintiffs had title to the suit property and if that be so the burden is on the defendants to show that they had perfected title by adverse possession and limitation. If as a matter of fact, if defendants have obtained a title by virtue of a revenue sale and also by the purchase certificates, the question of adverse possession and limitation does not arise for consideration at all. Therefore the court below has not considered the evidence in the proper perspective and has entered into inconsistent and contradictory findings. The documents produced by the defendants have not been properly considered. 15. In such unsatisfactory state of affairs, the only option available before this Court is to allow the appeal and the remand the suit to the trial court for fresh consideration -:12:- R.F.A..No. 154 of 2005 in accordance with law and in the light of what has been stated above. Accordingly this appeal is allowed, the impugned judgment and decree of the trial court are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence if they so choose. The parties shall appear before the court below on 21.12.2011. The court below may make every endeavour to dispose of the matter as expeditiously as possible. P.BHAVADASAN, JUDGE KKJ