IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 AS.No. 59 of 2000 & CROSS OBJECTION ----------------------------------------------------------------- OS.32/1996 of SUB COURT, VADAKARA .................... APPELLANT/2nd PLAINTIFF: O.MUHAMMED ALI, S/O O.MUHAMMED KUTTY HAJEE, OLAKKARA HOUSE, CHEEKKOTTUR DESOM, P.O. MANNAZHI, MALAPPURAM DIST. REP. BY POWER OF ATTORNEY HOLDER C.K.MUHAMMED SHEREEF, S/O DR.C.K.BEERAN KUTTY, RESIDING AT SHAHEEDA MANZIL, P.O. THENHIPALAM, THENHIPALAM AMSOM DESOM, TIRURANGADI TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/DEFENDANTS: 1. THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION, KOZHIKODE. 2. THE TAHSILDAR, VADAKARA TLUK, TALUK OFFICE, VADAKARA AMSOM DESOM. BY GOVT. PLEADER SRI.SHYSON P.MANGHUZHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED TH FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- A.S.No.59 of 2000 & Cross Objection -------------------------- JUDGMENT Second plaintiff in O.S.No.32/1996 on the file of Sub Court, Vadakara is the appellant. Respondents are defendants in the suit. Suit was originally instituted by the first plaintiff Greeshmam Resorts Private Limited, a Company, registered under Indian Companies Act through its Director Sri.P.Ramankutty Menon. Later, appellant purchased the rights of the first plaintiff under Exhibit A1 assignment deed dated 22.8.1998 and got himself impleaded as second plaintiff. Suit was instituted for permanent prohibitory injunction. 2. Plaint schedule property is 7.96 acres in R.S.No.183/2 of Vadakara Village of Vadakara Taluk, Kozhikode District. After submission of the report and plan by the Commissioner, the description of the plaint schedule property was amended to the AS 59/00 2 effect that it is plot ABCDEFGHA, as marked by the Commissioner in Exhibit C2 plan. The plaint claim is that as per Exhibit A6 kuzhikanam deed, Kannan obtained the properties, including the plaint schedule property, on kanam right and while he has been in possession of the property, he executed a will on 6.9.1932, bequeathing the properties in favour of his son Kunhiraman. On the death of Kannan, the properties devolved on Kunhiraman and on the death of Kunhiraman, the properties devolved on his widow and children, who, in turn, assigned the properties in favour of the first plaintiff under Exhibit A7 assignment deed dated 19.7.1995. It is contended that while the assignors were in possession of the property, some persons trespassed into the property and O.S.No.6/1976 was instituted before Sub Court, Vadakara for recovery of possession. Property was identified and Exhibit X1 plan was submitted. Under Exhibit X3 judgment and Exhibit X2 decree, the suit was decreed, which was confirmed by this Court in Exhibits X4 and X5 AS 59/00 3 judgments. In execution of the decree, delivery was taken, evidenced by Exhibits X6 to X8 from court and it is, thereafter, the property was assigned in favour of first plaintiff. 3. When first plaintiff, with a view to start the resort, approached the District Collector, objection was raised in granting permission on the ground that the property is in R.S.No.185 and is a Government land. It is alleged that, on enquiry, it was found that Government is attempting to claim that property and hence, the suit was instituted paying court fee under Section 27(a) of Kerala Court Fees Act seeking a decree for permanent prohibitory injunction restraining respondents from entering into the plaint schedule property and from taking the usufructs or transferring the property. 4. Respondents resisted the suit by filing a written statement contending that the plaint schedule property is not in R.S.No.183/2 but in R.S.No.185 and appellants have no title or possession over the property. Though there was AS 59/00 4 trespass, the trespassers were evicted under Kerala Land Conservancy Act and about forty five years back, the course of river was changed forming a fertile delta having 4.75 acres, which is a Government land and plaintiffs have no right, title or possession over the property and therefore, they are not entitled to the decree for injunction. 5. Learned Sub Judge framed necessary issues. On the side of the plaintiffs, PWs 1 and 2 were examined and Exhibits A1 to A13 were marked. On the side of the respondents, DWs 1 and 2 were examined and Exhibits B1 and B2 were marked. Exhibits X1 to X12 and C1 to C5 were also marked. 6. Learned Sub Judge, on the evidence, found that appellants are claiming only right in R.S.No. 183/2 and the report and plan submitted by the Commissioner show that the course of the river was changed and a delta was formed and the disputed property is the said delta, which is not in R.S.No. 183/2, but in R.S.No.185, which is a puramboke land and therefore, appellants have no title over the AS 59/00 5 property. But, the learned Sub Judge found that though plaintiffs or the defendants could not prove their respective cases satisfactorily, plaintiffs are entitled to get a decree restraining respondents from selling the present usufructs alone, as appellants came with the suit apprehending sale of usufructs. Therefore, the suit was partly decreed granting prohibitory injunction restraining respondents from selling the existing usufructs. Aggrieved by the non granting of the decree as sought for, second plaintiff filed this appeal. Being aggrieved by the decree of injunction granted, respondents filed a Cross Objection. 7. Learned counsel appearing for the appellant and learned Government Pleader appearing for the respondents were heard. 8. Appellant is raising claim over the plaint schedule property on the ground that it is part of the property obtained by Kannan under Exhibit A6, who, in turn, bequeathed the property in favour of his son Kunhiraman and on his death, first AS 59/00 6 plaintiff purchased it from his legal heirs under Exhibit A7 and therefore, appellant has title and possession over the property. 9. Case of the respondents is that the disputed property is not the property covered by Exhibits A6 and A7. Instead, it is the Government puramboke land, being a delta formed subsequently when the river changed its course and therefore, appellant is not entitled to the decree as sought for. 10. It is seen from the records that the Commissioner was appointed to identify the property with reference to the title deeds. Commissioner submitted Exhibit C1 report and Exhibits C2 to C4 plans. Later, on the objections raised by the appellant and at his instance, the reports were remitted back to the Commissioner to file a further report. It is seen from the records that though a further report was submitted, it was not marked by the learned Sub Judge. 11. Learned Sub Judge found that a portion of the disputed property was not there originally and AS 59/00 7 it came into existence only due to the change of the course of the river and formation of a delta and in such circumstances, when the property is in R.S.No.185, which is a puramboke land, appellant is not entitled to claim right over the delta. Still, on equitable principles, a decree for permanent prohibitory injunction was granted restraining the respondents from selling the existing usufructs. The question is whether the finding based on the fact that the disputed property is not in R.S.No. 183/2, but in R.S.No.185, is sustainable, if the properties are not properly identified. 12. On going through the records, it is clear that properties were not properly identified. It is the case of the appellant that Commissioner did not properly identify the properties. Learned Government Pleader appearing for the respondents also submitted that properties were not properly identified. In such circumstances, to resolve the dispute between the parties, it is absolutely necessary that the property claimed by the AS 59/00 8 appellant is to be identified properly and demarcated separately so as to decide the question whether appellant has right, title and possession over the said property and whether he is entitled to a decree for injunction. 13. As seen from Exhibit A6 kuzhikkanam deed of 1907, even at that time, the western boundary of the property was Arabian Sea and the eastern boundary is the river. Property covered by the said document is the land sandwiched between the sea and the river. It is the case of the respondents and the findings of the learned Sub Judge that the sea had eroded and taken away R.S.No.183/2 and what is now available is not the property in R.S.No.183/2, but the river delta subsequently formed inside the river in R.S.No.185. The crucial question is whether the property is in R.S.No.183/2 or in R.S. No.185. 14. Though the Commissioner reported in the subsequent report, which is not seen marked, that there was proper identification of the property, AS 59/00 9 there is no sufficient data to uphold the said claim. According to the respondents, a combined plan of R.S.No.183/2 and R.S.No.185 would establish that the disputed property now available is not in R.S.No.183/2, but in R.S.No.185. But, no such combined survey plan was produced. Similarly, the reports submitted by the Commissioner do not satisfactorily establish that there was proper identification of the properties. In such circumstances, without identifying the properties and specifically finding whether the disputed property is the property or a portion of the property obtained by Kannan under Exhibit A6 kuzhikanam deed, which was later transferred under Exhibit A7 and whether it is the very same property, which was the subject matter of O.S.No. 6/1976, evidenced by Exhibits X2 to X7, the decree, the judgments, the plan and the delivery receipt in O.S.No.6/1976, the disputes cannot be settled. In such circumstances, the judgment and decree are to be set aside and the case is to be remanded back to AS 59/00 10 the Sub Judge for proper disposal in accordance with law, after proper identification of the properties. Appeal and Cross Objection are allowed to that extent. Judgment and decree in O.S.No.32/1996 on the file of Sub Court, Vadakara are set aside. O.S.No.32/1996 is remanded to the Sub Judge for fresh disposal in accordance with law. Learned Sub Judge shall remit the reports and plans back to the Commissioner, who originally submitted them, if he is available or appoint an experienced Commissioner to identify the plaint schedule property with the assistance of Survey Superintendent. Commissioner shall identify the property covered by Exhibits A6 and A7 and find out whether the property now available, which the appellant would claim, is in R.S.No.183/2 and respondents would claim as a new delta formed in the river in R.S.No.185, is part of the said property. Naturally, Commissioner has to identify the original property in R.S.No.183/2 and R.S.No.185 to fix the property covered by Exhibits AS 59/00 11 A6 and A7. Learned Sub Judge to decide whether appellant has title and possession to the said property and dispose the suit in accordance with law. Refund the court fee paid on the appeal memorandum. Parties are directed to appear before Sub Court, Vadakara on 03.03.2010. Send back the records immediately. 28th January, 2010 (M.Sasidharan Nambiar, Judge) tkv AS 59/00 12 M.Sasidharan Nambiar, J. -------------------------- A.S.No.59 of 2000 -------------------------- JUDGMENT 28th January, 2010