IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 RSA.No. 672 of 2004() --------------------- AS.268/2000 of I ADDL. DISTRICT COURT, PALAKKAD OS.251/1993 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF. -------------------------------------------------- K.V.SANKARANARAYANAN EMBRANTHIRI, S/O.VENKITARAMANAN EMBRANTHIRI, AGED 67, YEARS, KARUMARI MANA, P.O. THENKURISSI, PALAKKAD DIST(DIED). * 2. K.SAVITHRI, W/O. K.V.SANKARANARAYANAN EMBRANTHIRI, AGED 68, THAYANKAVU MADOM, THENKURISSI P.O, PALAKKAD. *3. K.GOPINATHAN, AGED 49 YEARS, S/O. KV. SANKARANARAYANAN EMBRANTHIRI BHAGAVATHI PRASADOM, THAMARAKKULAM VADAKKANTHARA P.O. *4. K.SAVITHRI, AGED 47 YEARS, D/O. K.V.SANKARANARAYANAN EMBRANTHIRI, PATTAJE HOUSE, KUMBALAKKOD, ELEVENCHERRY P.O, KOLLENGODE. *5. VIJAYAN.K, AGED 45 YEARS, S/O. K.V.SANKARANARAYANAN EMBRANTHIRI, THAYANKAVU MADOM, THENKURISSI P.O. PALAKKAD. *6. RAJU K, AGED 43 YEARS, S/O K.V.SANKARANARAYANAN EMBRANTHIRI, THAYANKAVU MADOM THENKURISSI P.O PALAKKAD. *7. JALAJA K, AGED 40 YEARS, K.V.SANKARANARAYANAN EMBRANTHIRI, PUTHILLAM, ANCHERY P.O. THRISSUR. *8. JAYANTHI K, AGED 38 YEARS, D/O. K.V.SANKARANARAYANAN EMBRANTHIRI THODICHIL HOUSE, BELLA PO. KASARGOD. *9. LATHA K, D/O. K.V.SANKARANARAYANAN EMBRANTHIRI LAKSHMI NIVAS, KOLLANGARA P.O. KASARGOD. *10. UNNI KS, AGED 34 YEARS, S/O. K.V.SANKARANARAYANAN EMBRANTHIRI THAYANKAVU MADOM THENKURISSI P.O. PALAKKAD. RSA 672/2004 * ADDL APPELLANTS 2 TO 10 ARE IMPLEADED AS LRS OR DECEASED SOLE APPELLANT AS PER ORDER DATED 18.6.2010 ON I.A.1353 OF 2010. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENTS.DEFENDANTS. -------------------------------------- 1. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, PALAKKAD. 2. THE TAHSILDAR, ALATHUR. 3. THE VILLAGE OFFICER, THENKURISSI - I, THENKURISSI. BY GOVERNMENT PLEADER SRI M A ABDUL SHUKOOR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.672 of 2004 ............................................ DATED THIS THE 25th DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.251 of 1993 on the file of Sub Court, Palakkad is the appellant. Defendants, the State, Tahsildar and Village Officer are the respondents. Suit was filed seeking declaration of title in respect of two items of property. Both the properties are in survey No.411/1 of Thenkurussi Village. Item No.1 is having an extent of 30 cents and item No.2, 33 cents. As per the plaint allegations, item No.2 lies to the east of item No.1. Admittedly, ceiling case was pending before Taluk Land Board against Cherukutty as SM 1/1975. Taluk Land Board found that the declarant has been in possession of 13.06 acres of surplus land. It was directed to be surrendered. Appellant then filed a petition before Taluk Land Board claiming 30 cents based on an unregistered sale deed. Claim was rejected. Appellant challenged that order before this court in CRP No.2202 of 1988. This court set aside the order of the Land Board and remanded the claim petition for re-consideration. Taluk Land Board thereafter, by RSA 672/2004 2 Ext.A1 order upheld the claim petition and excluded 30 cents in survey No.411/1 from the property directed to be surrendered by the declarant. Learned Sub Judge upheld the claim of the appellant over item No.1 of the plaint schedule properties. Respondents did not file any appeal. Hence it has become final. 2. Item No.2 was claimed by the appellant based on Ext.A2 gift deed executed by the Receiver appointed by Sub Court, Ottapalam in O.S.34 of 1960. Ext.A2 gift deed shows that learned Sub Judge, by order dated 7.4.1976, in report No.71, permitted the Receiver to execute the gift deed and the gift deed was executed in respect of 33 cents in survey No.411/1. The description of the property shown in Ext.A2 is that it lies to the east of the property in the possession of the appellant, to the west of temple pond bund, to the north of Jnattupatta and south of road. Appellant would therefore contend that he has title to item No.2 also and respondents under the guise of taking possession of 20 cents, the extent directed to be surrendered by the declarant by Ext.B2 order, is attempting to claim 15 cents from the plaint schedule properties. Learned Sub Judge on the evidence found that though Ext.A2 shows that permission was RSA 672/2004 3 granted by the court to the Receiver, no such order granting of permission was produced and therefore under Ext.A2 appellant cannot claim title. The claim for item No.2 was rejected and decree was passed in respect of item No.1. Appellant challenged the decree before District Court, Palakkad in A.S.268 of 2000. Before the first appellate court, appellant produced the certified copies of the report No.1 and copy of report No.60 filed by the Receiver and copy of the affidavit filed by defendant No.105 in O.S.34 of 1960. Learned District Judge received them as additional evidence and marked them Ext.A3 to A5. Learned District Judge, on re-appreciation of the evidence found that even though Ext.A2 gift deed was executed by the Receiver, there is no document to prove that Kovilakom had title to that property and Ext.A3 to A5 do not show that Sub Court has permitted the Receiver to execute Ext.A2 and therefore, appellant cannot claim title. Appeal was dismissed. Second appeal is filed challenging the decree. 3. Second appeal was admitted formulating the following substantial questions of law. “1) Whether the courts below were justified in RSA 672/2004 4 holding that the gift deed was not valid when the same was executed by the receiver who had the right to execute the same ? 2) Is not the receiver of property appointed by the court which is custodia legis entitled to gift the property more so when he has obtained permission from the court ? 3) Whether the court below were right in dismissing the suit in view of the fact that the appellant has continued uninterrupted and peaceful possession of the property from 1963 onwards, is not the appellant entitled for the protection under the Kerala Land Reforms Act on the basis of the admitted pleadings and averments”. 4. Learned counsel appearing for appellant and learned Government Pleader were heard. 5. Learned counsel appearing for appellant submitted that Ext.A2 gift deed establishes that the Receiver obtained sanction from the court and thereafter executed the gift deed. Learned RSA 672/2004 5 counsel pointed out that first appellate court omitted to take note of the orders of the court seen in Ext.A2 report, especially the order dated 7.4.1976 which shows that the permission sought for by the Receiver to hand over vacant land to the appellant was granted. Learned counsel argued that Ext.A3 report shows that under Ext.A4 report, permission was sought for earlier to transfer the property and by Ext.A5, one of the defendants sought direction from the court to hand over possession to the appellant and in the light of Ext.A3 to A5, it is to be found that Ext.A2 was validly executed by the Receiver. Learned counsel argued that though respondents are claiming 20 cents, Ext.B2 order of the Taluk Land Board shows that out of 50 cents originally opted to be surrendered by the declarant Cherukutty, 30 cents claimed by appellant, which is item No.1 of the plaint schedule property, was excluded and only 20 cents was directed to be surrendered and that 20 cents is not the property which has been in possession of the Receiver and therefore respondents are not entitled to claim any portion of the property in the possession of appellant. Learned counsel submitted that even if there is any defect in the identification, an opportunity be granted to identify the RSA 672/2004 6 properties. 6. Learned Government Pleader pointed out that though appellant claimed 30 cents out of the properties directed to be surrendered in S.M.1/1975, that 30 cents was already excluded and therefore he cannot claim any portion of the property which was directed to be surrendered. Learned Government Pleader also argued that the property claimed by the appellant lies to the east of the property which was excluded under Ext.A1 order and the property which is claimed by respondents lies to the west of excluded 30 cents and therefore appellant cannot claim right or title to the property. 7. The claim for item No.1 of the plaint schedule property is finally settled by Ext.A1 order of Taluk Land Board and the decree passed by the learned Munsiff upholding the title in respect of item No.1 was not challenged by the respondents. The dispute is only with regard to item No.2. As per the description of item No.2 of plaint schedule properties, it lies to the east of item No.1. Ext.B3(a) is the plan prepared by the revenue officials at the time of taking possession of 20 cents, originally belonging to Cherukutty, which was directed to be RSA 672/2004 7 surrendered under Ext.B2 order. As per Ext.B3(a) plan, the said 20 cents lies to the west of the excluded 30 cents claimed by the appellant. Therefore, when the appellant is claiming 33 cents, which lies to the east of the excluded 30 cents, respondents are claiming that the property surrendered and taken possession viz, 20 cents lies to the west of the excluded 30 cents. Appellant, though took out a commission and identified item No.1 of the plaint schedule property, did not make any attempt to identify either the property originally directed to be surrendered, viz 50 cents in S.M.1/1975 and demarcate the 30 cents, which was excluded by Ext.A1 order or to show the 20 cents which is the balance to be surrendered by Cherukutty. Instead, attempt is to get a decree without proper identification of the property. In the light of the contentions raised by the parties, I do not find any reasonable cause for a fight in between the appellant and respondents. Thirty cents originally claimed by appellant based on an unregistered sale deed was upheld by Taluk Land Board by Ext.A1 order. The property which is claimed by the appellant under Ext.A2 gift deed lies to the east of the said 30 cents. Twenty cents claimed by the State lies to the west of the said 30 RSA 672/2004 8 cents. When appellant has already approached the Land Board claiming exclusion of 30 cents covered under the orders of Land Board, directing surrender of 50 cents in survey No.411/1, he did not raise any contention that in addition to the 30 cents, out of 50 cents directed to be surrendered, he is in possession of 33 cents also under Ext.A2 gift deed. Appellant cannot be heard to contend that respondents are not entitled to take possession of the 20 cents as directed in Ext.B2 order. 8. Therefore, the claim of appellant could only be in respect of the remaining extent of survey No.411/1 excluding the excluded 30 cents under Ext.A1 order and the 20 cents, which was directed to be surrendered out of the balance 50 cents. Even appellant is claiming only 33 cents which lies further to the east of the 30 cents. In such circumstances, when appellant did not identify the property, either 20 cents which was directed to be surrendered or 33 cents which lies to the east of 30 cents excluded under Ext.A1, he is not entitled to a decree for declaration of title or possession as sought for. But, in view of the contentions of the parties, it is made clear that the claim of appellant for 33 cents, covered under Ext.A2, cannot be disputed RSA 672/2004 9 by the respondents as their claim is only in respect of 20 cents, which lies to the west of 30 cents which is excluded under Ext.A1 order. If the claim of appellant is in respect of the said 20 cents, necessarily remedy is to approach the Taluk Land Board as provided under sub-section 8 of Section 85. Appeal is therefore dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk