IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 SA.NO. 665 OF 1997() --------------------------------- AS.45/1994 OF ADDL. DISTRICT COURT, PARAVUR OS.523/1987 OF MUNSIFF COURT, N. PARAVUR .................... APPELLANT(S) - APPELLANT - PLAINTIFF: --------------------------------------------------- KRISHNA PILLAI SEKHARAN NAIR OF AMBALATHINGAL RESIDING AT MADATHIL, KUTTIKKATTUKARA, KADUNGALLUR VILLAGE, N. PARAVUR TALUK. BY ADVOCATE SRI.T.R.RAJEEV SRI.P.VISWANATHAN SRI.S.VIDYASAGAR RESPONDENT(S) - RESPONDENTS - 2ND DEFENDANT - LRS OF FIRST DEFENDANT: -------------------------------------------------------------------------------------------- 1. MARIYAM, WIFE OF KUNJAYYAPPAN, ALUNGAPARAMBIL KUTTIKKATTUKARA, KADUNGALLUR VILLAGE, N. PARAVUR TALUK. 2. KARTHU, WIFE OF THEVAN, MUNDAYIL, KUTTIKKATTUKARA DOD. O. 3. OMANA, WIFE OF KRISHNANKUTTY, KEERAPPILLY VEEDU, MUPPATHADAM, DO. DO. 4. VELU, SON OF THEVAN, KAROTHUKUNNU VEEDU, DO. DO. 5. VENU, SON THEVAN, DO. DO. 6. SANTHA, WIFE OF SOMAN, MUNDAYIL, KUTTIKKATTUKARA, DO. DO. 7. SALI AMBIKA, DO. DO. ADV. SRI.M.C.NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.665 of 1997 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of March, 2009 J U D G M E N T ---------------------- Appellant/plaintiff against whom concurrent findings have been entered by the courts below has come up in Second Appeal raising the following substantial questions of law: (i) whether when a property covered by a transaction of sale is identifiable with reference to the survey numbers, extent and boundaries given in the sale deed it is legal or proper to exclude any portion of it on the ground that the property is described in the sale deed as paddy land (nilam) and some portion of it is at present not usable for actual growing of paddy? and (ii) whether the plaintiff's claim to a registered holding is established by a sale deed executed in his favour by the tenant of the property and a certificate of purchase issued under the Kerala Land Reforms Act, can that claim be rejected on the basis of the defendant's plea that he has taken possession of adjacent poramboke land and developed it? 2. A schedule property as described in the plaint is 1.68.500 acres of land in Sy.No.11/8-A,B&C. Appellant alleged that the said property originally belonged to Madathil family and as per partition S.A. No.665 of 1997 -: 2 :- deed No.1439/1099 M.E. it was allotted to the sakha of one Narayana Panicker. There was a mortgage over that property which was redeemed in the year 1124 M.E. That property was then given on varam arrangement to one Bhaskara Panicker as per document No.1586/1124 M.E. At that time towards the eastern portion of the A schedule property about 4 cents was raised and coconut seedlings were planted. Kunjayyappan, father of the respondents was allowed to put up a house on that raised portion. Madathil family continued to take the yield from the coconut trees thereon. Plaint B schedule property as originally stated in the plaint is 20 cents (amended as 24.250 cents as per Advocate Commissioner's report and plan), claimed to be forming part of plaint A schedule and situated towards its eastern side. Appellant claimed that he got the entire plaint schedule property on varom arrangement as per Ext.A1, document No.913/1972 dated 29.3.1972. Appellant obtained purchase certificate, Ext.A2 in the year 1976 and thus became the absolute owner in possession of plaint A schedule property. He sold about 25 cents towards the northern side of plaint A schedule. While so, one Ahamed Marakkar instituted O.S. No.192 of 1973 against the appellant seeking prohibitory injunction in respect of plaint A schedule property. That S.A. No.665 of 1997 -: 3 :- suit was dismissed. On 4.1.1983 appellant asked Kunjayyappan to remove the house situated in the B schedule. He refused claiming that the entire B schedule property and adjoining puramboke land are in his possession and denying the title of the appellant. Appellant filed O.S. No.35 of 1983 against Kunjayyappan seeking injunction against trespass into plaint A schedule property. That suit was ultimately dismissed with observation that appellant can seek recovery of possession. After dismissal of O.S. No.35 of 1983 respondents trespassed into the entire B schedule property. Hence the present suit for recovery of possession on the strength of title and for fixation of boundary of entire A schedule property. Kunjayyappan who was impleaded in the suit died pending suit and his legal representatives were impleaded as additional defendants 3 to 8 (respondents herein). Their contention is that Madathil family had no right, title or interest over the plaint schedule properties. Instead, predecessor of respondents filled soil on the land and planted trees in the entire plaint B schedule which was puramboke land and converted the same into dry land. Plaint B schedule is not part of the plaint A schedule. It is also contended that the extent of plaint B schedule is around 25 cents and title if any of the appellant over it is lost by adverse possession S.A. No.665 of 1997 -: 4 :- and limitation. Learned Munsiff found that the appellant did not establish title over the disputed property and dismissed the suit. Learned Additional District Judge concurred with that finding. 3. It is contended by the learned counsel for appellant that findings of the courts below regarding title rested purely on the assumption that the land belonging to the appellant as per Exts.A1 and A2 is paddy lands but the disputed plaint B schedule is not of that nature, but is a dry land. Learned counsel contended that the said finding is unsustainable since Exts.A1 and A2 and Exts.C2 and C2(a) proved title of the appellant. Learned counsel also referred to me the finding in O.S. No.192 of 1973. 4. This being a suit for recovery of possession on the strength of title, appellant has to win on the strength of his title. The burden is on the appellant to prove that he has got title over the entire plaint A schedule including plaint B schedule since that is denied by the respondents. In Ext.A1 the property described is 1.93.500 acres of nilam consisting of 8 cents in Sy.No.11/8A, 7 cents in Sy.No.11/8B, 1.53.500 acres in Sy.No.11/8C and 25 cents in Sy.No.11/4A. Eastern and southern boundaries are stated to be river. ln Ext.A2 also the said 1.93.500 acres is stated to be comprised in Sy.Nos. 11/8A, 11/8B and S.A. No.665 of 1997 -: 5 :- 11/8C and 11/14A. Original suit No.192 of 1973 is one filed by Ahamed Marakar against the appellant seeking injunction. Exhibit A3 is the copy of the judgment in that case. Respondents or their predecessor are not parties in that suit and hence the finding therein cannot bind the respondents or their predecessor. On the other hand, respondents produced Ext.B4, copy of the report of the Receiver and Ext.B5 and B5(a), copy of the Commission report and plan in O.S. No.192 of 1973. Receiver was examined as D.W.8 in that case. Though the Receiver claimed that he took possession of the entire property referred to in O.S. No.192 of 1973, the court found basing on Exts.B5 and B5(a) that what the Receiver took possession in that case and later handed over to the appellant is only 1.29.250 acres of paddy land (excluding 25 cents claimed to have sold by the appellant and situated towards north of the plaint A schedule). But in Exts.C2 and C2(a) Commissioner has shown the disputed B schedule in red shade as 24.250 cents in Sy.No.11/8C. The report of the Commissioner is as if it formed part of the suit property. Learned counsel for the appellant submits that the courts below were not justified in acting upon Exts.B5 and B5(a) and instead, should have accepted Exts.C2 and C2(a). 5. No doubt, courts below should not have acted upon S.A. No.665 of 1997 -: 6 :- Exts.B5 and B5(a) which are certified copies of report and plan in O.S. No.192 of 1973 without examining the Commissioner and Surveyor who prepared the same. The Apex Court in J.J. Lal Pvt. Ltd. v. M.R. Murali (AIR 2002 SC 1061) held and a learned Single Judge of this Court in Selin Joseph V. Vijayan (1999(3) KLT 898) held that copies of records taken from other cases even if between the parties can be accepted only on examining the persons concerned. Hence I am not inclined to place reliance on Exts.B5 and B5(a). 6. Still, the burden of proving title over the plaint B schedule rested with the appellant. It is seen from Exts.C2 and C2(a) that the extent of the properties comprised in Sy.No.11/8A, B & C is not stated by the Advocate Commissioner. Instead, only the extent of plaint B schedule falling in Sy.No.11/8C, 24.250 cents is given. Respondents have a contention that the appellant never got title or possession over 1.93.500 acres of land as claimed by him. In such a situation it was necessary to measure the entire property belonging to the appellant and ascertain whether the disputed B schedule formed part of plaint A schedule allegedly belonging to the appellant. Even as regards Sy.No.11/8C measuring 24.250 cents stated to be B schedule, it is seen that the total extent of the property belonging to the appellant in S.A. No.665 of 1997 -: 7 :- that survey number is not stated in Ext.C2. 7. In spite of the respondents denying the title of Madathil Family and sakha of Narayana Panicker over plaint A schedule, appellant made no effort to produce the prior documents of title. The partition deed No.1439/1099 M.E. or document of 1124 M.E. as per which the mortgage over the property was allegedly redeemed or document No.1586/1124 M.E. as per which Bhaskara Panicker is stated to have taken the property on varom arrangement are not produced. Appellant in his evidence stated that he got the property from Moideen and Varghese who got it on varom arrangement. The documents as per which Moideen and Varghese are stated to have got possession of the property are also not produced. In a suit of this nature measurement of the property with reference to the prior documents of title was absolutely necessary. 8. There is also no convincing evidence to show that the appellant in fact got possession of 1.93.500 acres of land as per Ext.A1. Appellant himself admitted that at the time of Ext.A1, property was not measured. Though Exts.B5 and B5(a) cannot be pressed into service for the reasons which I have already stated above, Ext.B2 copy of the judgment in O.S. No.35 of 1983 and Ext.B6, copy of judgment in S.A. No.665 of 1997 -: 8 :- A.S. No.72 of 1986 show that from the Receiver appointed in that case, appellant got possession only over 1.29.250 acres of paddy land. Going by the evidence of appellant, even at that time there was yielding improvements in the disputed plaint B schedule property. If that be so, those improvements had been effected much prior to the institution of O.S. No.35 of 1983. Thus Exts.B2 and B6 support the contention of the respondents that appellant never got possession of 1.93.500 acres of land. This along with the admission of the appellant as P.W.1 that the property referred to in Ext.A1 was not measured at the time of that document assume much importance. Exhibit B2, copy of the judgment in O.S. No.35 of 1983 shows entitlement of the appellant only of 1.29.250 acres of land which was paddy land. In these circumstances, merely based on Exts.A1 and A2 and C2 and C2 (a) title of the appellant over the entire 1.93.500 acres of land cannot be upheld. Courts below therefore were justified in holding that the appellant has not proved title over the plaint B schedule property. It follows that the appellant is not entitled to the recovery of plaint B schedule. Since the disputed B schedule is in the possession of the respondents the prayer of fixation of eastern boundary of the entire property including B schedule cannot be allowed. S.A. No.665 of 1997 -: 9 :- Second Appeal fails. It is dismissed. No costs. Civil Miscellaneous Petition No.1705 of 1997 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.665 OF 1997 =================== J U D G M E N T 6TH MARCH, 2009