IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 SA.No. 420 of 1997(G) --------------------- AS.12/1993 of SUB COURT, QUILANDY OS.195/1984 of MUNSIFF COURT, QUILANDY .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------- B.N.KESAVAN NAMBOODIRIPPAD, MADATHIL ILLAM, AVALA AMSOM, KULLOTH DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT SATHYASHREE PRIYA RESPONDENT/APPELLANTS/DEFENDANTS: -------------------- 1. PUVVATHUMKANDI DAMODARAN, SIVAPURAM AMSOM, KARUMALA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. 2. PUVVATHUMKANDI MADHAVAN, -DO- -DO- 3. PUVVATHUMKANDI ASOKAN, -DO- -DO- SUPPL4.PUVVATHUMKANDI RAGHVAN, SIVAPURAM AMSOM, KARUMALA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. '' 5.PUVVATHUMKANDI LEELA, -DO- -DO- '' 6. PUVVATHUMKANDI KAMALAKSHI, -DO- -DO- '' 7. PUVVTHUMKANDI SOBHANA, -DO- -DO- '' 8. PUVVATHUMKANDI JANAK, -DO- -DO-(DIED) (8TH RESPONDENT DIED AND R1 TO R7 ARE RCORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 8TH RESPONDENT AS PER ORDER DATED 17/3/2009 IN MEMO BEARING C.F. NO.1512/09. ADV. SRI.R.K.MURALEEDHARAN FOR R1TOR7 SRI.R.PARTHASARATHY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:, HARUN-UL-RASHID,J. ------------------------------ S.A.NO.420 OF 1997 ------------------------------- DATED THIS THE 11TH DAY OF AUGUST, 2010 JUDGMENT The 2nd plaintiff in O.S.No.195/84 on the file of the Munsiff's Court, Koyilandy is the appellant. The appeal is directed against the judgment and decree in A.S.No.12/93 on the file of the Sub Court, Quilandy. The suit was filed for permanent prohibitory injunction with an alternative prayer for recovery of possession on the strength of title. The trial court decreed the suit. It is decreed that the plaintiff is entitled to recover possession of property shown as plot C in Ext.C1 plan from the defendants. The Appellate Court set aside the judgment and decree passed by the trial court and allowed the appeal. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaintiff's case is that the suit property -2- S.A.No.420/97 belonged in jenm to Nellippatta Banathur Illom and was in possession and enjoyment of the Illom. The property lying on the north of the suit property was leased to the father of defendants and after his death, the property is now in the possession of the defendants. It is also pleaded that the plaint schedule property and the property on the south and east of it are part of Karumalkunnu and is full of aged trees. The suit was filed apprehending trespass by the defendants. Subsequently, the plaint was amended adding a prayer for recovery of the plaint schedule property, alternatively if the court finds that any portion of the plaint schedule property is in the possession of the defendants. It is alleged that the amendment was necessitated due to the action of the defendants, who have planted some kuzhikoors in the plaint schedule property. 3. Written statement was filed by the defendants 1 to 3 disputed the measurements, boundary and survey number of the plaint schedule property. According to them, there is no -3- S.A.No.420/97 property as shown in the plaint schedule. They denied the averments in the plaint that they have destroyed the boundary demarcating the plaint schedule property from the property lying on either side. According to the contesting defendants, the property on the west of the suit property is in the possession of one Kanaran Nair, that the property lying on the eastern and northern sides of Krishnan Namboodiri's property lies as one plot and it covers an area of 2 ½ acres and that property was leased to the father of the defendants about 50 years ago, that their father was holding the property as a tenant under Nellipatta Banahoor Illom and he was residing in that property. After his death, the property devolved upon the defendants along with their brothers and sisters. It is also contended that the defendants have obtained purchase certificate for 2 ½ acres of land possessed by their father. They further contended that since they are in actual possession and enjoyment of the entire 2 ½ acres of land, the plaintiffs are not entitled to get any decree relating to that -4- S.A.No.420/97 property as claimed in the plaint. According to them, the property in their possession are the properties shown as plot A, B and C in the plan submitted by the Commissioner. They also contended that since they are in exclusive possession of the property, the right of the plaintiffs, if any, is lost by adverse possession and limitation. They also requested the trial court to refer the question of tenancy right to the Land Tribunal for decision. 4. The trial court referred the case to the Land Tribunal, Balussery under Section 125(3) of the Kerala Land Reforms Act. The suit property is 1 acre and 35 cents comprised in R.S. No.90. The plaintiffs' case is that Illom has never leased any land from R.S.No.90 to late Kanaran, the predecessor-in- interest of the defendants from whom the defendants claim tenancy right over the plaint property. They also contended that the tenancy is in respect of the property lying on the north of the plaint schedule property which is comprised in R.S.No.89. -5- S.A.No.420/97 5. The defendants did not file any statement before the Land Tribunal, though the matter was referred on their request. None of the defendants was also examined in support of the claim for tenancy right. The counsel for the defendants contended before the Land Tribunal that patta was issued for 2 ½ acres of land in the name of the defendants' father. Plaintiffs filed Ext.A1 and A9. Exts. B1 and B11 were filed by the defendants. The Land Tribunal noticed that 2 ½ acres of land in R.S.No.89 of Karumala desom were assigned in favour of Kanaran as per the order of the Land Tribunal dated 5/4/1977 in O.A.No.3588/76 and subsequently issued a purchase certificate on 27/6/1977. The Land Tribunal found that the defendants have no right to claim the property in R.S.No.90, which is not included in the 2 ½ acres of land assigned in favour of their father. The Land Tribunal held that the documents produced will not show that 2 ½ acres of land claimed under the earlier patta is inclusive of the property in Sy.No.90. The Land Tribunal also -6- S.A.No.420/97 held that the defendants are not entitled to tenancy right over the suit property. Reference is answered and sent back to the trial court. 6. On the side of the plaintiff PW1 was examined and Exts.A1 to A9 were marked. Exts.B1 to B29 were marked on the side of the defendants. Exts.C1 to C5 were marked as court exhibits. None of the defendants has mounted the box and tendered evidence in terms of their pleadings. 7. It is an admitted case that the plaint schedule property belonged in jenm of Nellippatta Banathur Illom and the plaintiffs are the members of that Illom. Defendants has disputed the identity of the suit property. The plaintiffs have taken out a Commission to demarcate the suit property. The Commissioner submitted Exts.C1 to C5 reports and plans. The reports show that the Commissioner identified the plaint schedule property as plot C and D1 in Ext.C1 plan. The trial court found that the measurements, boundries and survey number of the plaint -7- S.A.No.420/97 schedule property tallies with that of plots C and D. The trial court observed that no serious objections are raised by both sides regarding the identification of the properties made by the Commissioner. The trial court also observed that the dispute involved in this case is whether plot C in Ext.C1 is included in the lease granted to the defendants' father or not. In the light of the contentions raised by the defendants disputing the identity of the property, the Commissioner has identified the plaint schedule properties as plots C and D in Ext.C1 plan. 8. According to the plaintiffs, plots C and D in Ext.C1 plan belongs in jenmom to the Illom and the defendants' father was given the property shown as plot A in Ext.C1 on lease and the defendants have got lease hold right only over the property shown as plot A in Ext.C1 plan. The defendants also admit that the plaint schedule property belonged in jenmom to the plaintiffs' Illom. But according to them, their father got leasehold right over plots A, B and C schedules shown in Ext.C1 on lease -8- S.A.No.420/97 and their father had obtained purchase certificate from the Land Tribunal. Taking into account the contentions of the rival parties, the trial court observed that the dispute involved in the case is regarding the right over the property shown as plot C in Ext.C1. The trial court also observed that regarding the property shown as plot D in Ext.C1, the defendants are not claiming right or possession. The trial court proceeded further and enquired into the question as to whether plot C in Ext.C1 is included in the lease granted in favour of the father of the defendants. The trial court rightly observed that since the defendants set up a leasehold right under plaintiffs' Illom, they have admitted the title of the plaintiffs' Illom over the suit property. The trial court also held that the burden of proving the fact that the defendants have got leasehold right over the property shown as plot C in Ext.C1 and also that plot C is included in the lease granted in favour of the father of defendants, is upon the defendants. 9. Since the defendants claimed tenancy right over -9- S.A.No.420/97 the suit property, the trial court referred the question of tenancy right to the Land Tribunal. The Land Tribunal answered the reference and held that the defendants are not entitled to tenancy right. The learned counsel for the plaintiffs has pointed out that the defendants have not claimed tenancy right over any portion of the property in R.S.No.90. 10. Ext.A3 is the application submitted by the father of the defendants for purchase of tenancy right. In the application it is stated that he is the lessee in respect of 2 ½ acres in R.S.No.89 and that he applied for issuance of patta for the said property. The Land Tribual allowed the application and granted assignment in respect of 2 ½ acres of land in R.S.No.89. Ext.B28 is the purchase certificate issued in the name of the defendants' father, which also shows that their father Kanaran got assignment of 2.50 acres in R.S.No.89. The assignment order was issued based on Ext.A3 application submitted by their father. The defendants' father has no case that he has tenancy right over any -10- S.A.No.420/97 portion of the property in R.S.No.90. Going by Ext.A3, the suit property, which is comprised in R.S.No.90, is not the subject matter of the lease, according to the father of the defendants. Ext.A3 application shows that the father of the defendants have not claimed any right over any property other than the property in R.S.No.89. Ext.B28 purchase certificate also shows that the defendants' father has no right over any property other than the property in R.S.No.89. 11. In Ext.B28 purchase certificate, the southern boundary of the leasehold property is Karumalakunnu. The plaint schedule property described as Karumala is lying on the southern side of the defendants' property. The Commissioner has reported in Exts.C3 and C5 that very old trees having age at a range of 15 to 300 years which are not yielding trees, are seen in plot C. He also reported that some coconut trees and arecanut trees having age of 1 year to 6 years are seen in plot C in Ext.C1. The trial court observed that the age of the coconut plants and -11- S.A.No.420/97 arecanut plants reported by the Commissioner in 1985 reveals that they are not planted in 1976. The trial court also observed that at the time of filing Ext.A3 application by the father of the defendants, plot C can never be a garden land and it can only be a property full of non-yielding old trees. It is stated in column 10 of Ext.A3 that there are no trees in the property for which Ext.A3 application was filed. The trial court considered the evidence on record and found that the suit property belongs to the plaintiffs and that the defendants have no manner of right, title or interest over the property. The trial court, therefore decreed the suit allowing the plaintiffs to recover possession of plot C in Ext.C1 plan. 12. The Lower Appellate after appreciating the evidence on record, found that Ext.B28 certificate covers an extent of 2 ½ acres of land in R.S.No.89. The Commissioner reported that plot A in Ext.C1 is the property of the defendants. The extent of plot A is 1 acre and 35 cents. On the finding that -12- S.A.No.420/97 2½ acres of land was assigned in favour of the defendants' father, the learned Judge took the view that 2 ½ acres of land includes the suit property. I have already stated that Ext.B28 purchase certificate relates to the property in R.S. No.89 only. The claim of the father, as can be seen from Ext.A3 application filed by him, is in respect of the property in R.S.No.89 only. The Land Tribunal issued purchase certificate in respect of 2 ½ acres mentioned in ExtA3 application. That does not mean that the defendants' father was holding tenancy right in respect of the property in other survey numbers. It is not known whether he has shown the correct extent in Ext.A3 application. The Commissioner found that the defendants are in possession of 1.35 acres in R.S.No.89. The Lower Appellate Court observed that there is no plea challenging the genuineness of Ext.B28, that the jenmi has received purchase price for 2 ½ acres of land and therefore the claim of Kanaran has been conceded by the jenmi. The findings recorded by the Lower Appellate Court is against -13- S.A.No.420/97 the pleadings and material evidence adduced by the parties. The Lower Appellate Court also misunderstood and misread the documents especially Exts.A3, B28 and other related documents. From the facts and circumstances discussed above, I find that there is no justification for the Lower Appellate Court to set aside the judgment and decree passed by the trial court. The trial court considered the facts, evidence and also the order passed by the Land Tribunal and found that the plaintiffs are entitled to the relief sought for in the plaint. The Lower Appellate Court misread the evidence and reversed the findings of the trial court.. The reasons stated by the lower Appellate Court for reversing the findings are faulty and illegal. The Lower Appellate Court failed to consider the relevant documents in the proper perspective. Therefore, by invoking the jurisdiction under Section 100 of the Code of Civil Procedure, this Court finds that the findings recorded by the Lower Appellate Court require interference. On the basis of the facts and evidence, the plaintiffs -14- S.A.No.420/97 are entitled to the relief sought for in the plaint. In the result, the appeal is allowed. The judgment and decree passed by the Appellate Court are set aside and the judgment and decree passed by the trial court are restored. No order as to costs. Sd/- HARUN-UL-RASHID, JUDGE. kcv