IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 SA.NO. 807 OF 1998(D) ----------------------------------- AS.81/1994 OF PRL.SUB COURT,KOTTAYAM OS.129/1991 OF MUNSIFF COURT, VAIKOM .................... APPELLANT(S) - APPELLANT - 2ND DEFENDANT: ---------------------------------------------------------- AYYAPPAN GOPALAN, PUTHENTHARAYIL, MAKKARAKARA, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY RESPONDENT(S) RESPONDENTS - PLAINTIFF & 1ST DEFENDANT: ---------------------------------------------------------------------------------- 1. BHARGAVI, W/O. VELAYUDHAN, PADINJARA ITTIKUNNATH VEEDU, ARUKUTTY VILLAGE, CHERTHALA TALUK, FROM PUTHENTHARAYIL MEKKARA KARA, KULASEKHARAMANGALM VILLAGE, VAIKOM TALUK. 2. KOCHU NARAYANAN KOUSALYA, PUTHENPARAMBU VEEDU, KUTTANCHALUKARA, THAIKKATTUSERI VILLAGE, CHERTHALA TALUK FROM MEKKARA DO VILLAGE, DO TALUK. BY ADVOCATES SHRI BABU CHERUKARA FOR R1,2 SHRI ISAAC GEORGE FOR R1,2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.807 of 1998 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2009 J U D G M E N T ---------------------- Defendant No.2 in O.S. No.129 of 1991 of the Munsiff's Court, Vaikom having been unsuccessful in the first appeal has preferred this Second Appeal challenging the identity of the suit property and raising the following substantial questions of law: “(a) In the facts and circumstances of the case when the boundaries of the plaint schedule property and the property claimed by the 2nd defendant are identical is it not illegal foro the courts below to enter a finding that the plaint schedule property obtained by Ayyappa Panicka under Ext.A1 purchase certificate is different as the survey number in Ext.A1 is different from that in Ext.B1. (b) In the facts and circumstances of the case when by an earlier document of 1983 the 2nd defendant has obtained right in respect of 31 cents, is it not illegal to hold that by Exhibit A1 document of 1988 a right in favour of another person with regard to a portion of that property covered by the earlier document can be issued by the Land Tribunal without the S.A. No.807 of 1998 -: 2 :- knowledge of the earlier patta holder. (c) In the facts and circumstances of the case when the survey numbers of the property claimed by the plaintiff and defendants are different and the boundary description are identical and the 2nd defendant says that there is no property with such survey number exists in that locality is it not illegal to say that they are two separate properties. (d) Is it not illegal for the courts below to find that a purchase certificate issued by the Land Tribunal in 1988 in relation to a portion of a property with respect to which a purchase certificate has already been issued in favour of another person in 1983 and that person is holding the same under the earlier purchase certificate, without amending or modifying the earlier purchase certificate”. 2. Property prescribed in the plaint schedule is 22 cents in Sy.No.133/1AB stated to be lying within the boundaries mentioned therein. According to the respondents (plaintiff and defendant No.1) that property was acquired by their father, Ayyappa Panicka who got Ext.A1, purchase certificate No.82/1988 from the Land Tribunal Vaikom. Their father died on 18.7.1990 (Ext.A2 is the death S.A. No.807 of 1998 -: 3 :- certificate) and on his death that property devolved on them jointly and they are in joint possession and enjoyment of the suit property. Respondent No.1 brought the suit for partition and separate possession of her half share alleging that the appellant, brother of Ayyappa Panicka under instigation of the second respondent is trying to commit waste in the suit property. Respondent No.2 is sailing with respondent No.1. Appellant contended that the survey number, extent and details of the suit property stated in the plaint schedule are not correct and that the property has to be identified with the assistance of the Taluk Surveyor. He also contended that he got purchase certificate in respect of 31 cents in Sy.No.133/39 (Ext.B1 dated 8.4.1983) from the Land Tribunal, Vaikom. In paragraph 4 of the written statement appellant contended that suit property and other properties belonged to Mankavil Mana and the suit property is the one allotted to the share of one Kesava Panicker under whom appellant was holding the property in lease arrangement which culminated in Ext.B1. Trial court after considering the evidence adduced by both sides rejected the contention of the appellant and ordered partition as prayed for. Appellate Court concurred with that finding. 3. It is contended by the learned counsel for appellant that S.A. No.807 of 1998 -: 4 :- in a suit of this nature when both sides are claiming title as per purchase certificates issued in their respective names and with more or less similar boundary descriptions, the trial court ought not have passed a preliminary decree without proper identification of the suit property with the assistance of the Taluk Surveyor. The very fact that the appellant was impleaded in the suit indicated lack of bona fides of the respondents. Though respondent No.1 impleaded the appellant alleging that at the instance of respondent No.2 the appellant is attempting to trespass into the property and commit waste, the conduct of respondent No.2 in supporting respondent No.1 was not taken into account by the courts below. Counsel for the respondents supported the findings of the courts below. 4. Learned counsel for the appellant contended that in a suit of this nature the respondents ought to have prayed for declaration of the right claimed by them over the suit property. But even going by Section 34 of the Specific Relief Act, it is not as if whenever title is denied intervention of court by declaration is required. That depends on the nature of the contentions raised and in the circumstance of each case. In this case it is true that appellant is claiming right, title and interest of the suit property as per Ext.B1, purchase certificate dated 8.4.1983. Respondents are also claiming S.A. No.807 of 1998 -: 5 :- the suit property as per Ext.A1 dated 10.12.1988. Learned counsel invited my attention to the boundary descriptions in Exts.A1 and B1 to show that it is almost identical. But as per the contention raised by the appellant, he got 31 cents of land in Sy.No.133/39 and his wife got 10 cents on its west, she having purchased it from Kochupennu Kunjamma and Kochupennu Bhavani and produced Ext.B2, purchase certificate dated 29.10.1977 allegedly issued in the name of the wife of the appellant. But it is seen from Ext.B2 that it is concerning wet land in Sy.No.133/16 said to be bounded on the east by nilam belonging to Kanda. If one were to accept the contention of the appellant, the eastern boundary description of the property covered by Ext.B2 should have been the suit property and not nilam belonging to Kanda. When the appellant was confronted with the boundary description in Ext.B2, he claimed that property on the east of the property referred in Ext.B2 is kudikidappu. There is however, no evidence in that line. On the other hand, what is reported by the Advocate Commissioner is that on the west of the suit property it is water logged area. Therefore the eastern boundary description in Ext.B2 itself would defeat the contention raised by the appellant. Moreover, the assignment deed said to be executed in favour of the wife of the appellant concerning Ext.B2 land is also not produced. S.A. No.807 of 1998 -: 6 :- 5. Though it was contended by the appellant that the respondents are not the daughters of Ayyappa Panicka and Ayyappa Panicka had not even got married, courts below accepted the case of the respondents that they are the legal representatives of Ayyappa Panicka. According to the appellant, Ayyappa Panicka was staying with him until his death on 18.7.1990. But Ext.A5, ration card produced by respondent No.1 would show that in the house referred to therein only Ayyappa Panicka was residing. Therefore that contention of the appellant also was not accepted. Though appellant contended in the written statement how he derived title, it is seen from his evidence in cross-examination that he has given a go by to all those contentions raised in the written statement. It is also seen from the evidence that he has no idea about the boundary description of the property he claimed as per Ext.B1. Moreover, respondents are claiming right, title and interest only in respect of the property comprised in Sy.No.133/1AB while the claim made by the appellant is in respect of the property comprised in Sy.No.133/39. Though at the stage of final decree, the Advocate Commissioner inspected the property and measured the same with the help of a private surveyor the survey number of the property has been correctly stated in that plain (That plan and report are available in the case records). S.A. No.807 of 1998 -: 7 :- Learned counsel for the appellant contended that there is nothing to show that the measurement effected was correct or that survey records were made use of for the measurement. But it is pertinent to note that the appellant was not contesting the final decree proceedings and there is the report of the Advocate Commissioner that he had made use of the assistance of a private surveyor. It is seen from the report and plan that the property was found to be comprised in Sy.No.133/1AB. On a consideration of the evidence on record, I do not find any justifiable reason to interfere with the finding entered by the courts below that the respondents are entitled to partition and separate possession of the suit property. Second Appeal fails. It is dismissed. No costs. Civil Miscellaneous Petition No.2374 of 1998 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.807 OF 1998 =================== J U D G M E N T 25TH FEBRUARY, 2009