IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 SA.NO. 545 OF 1997(F) ----------------------------------- AS.91/1990 OF ADDL.DISTRICT COURT, THRISSUR OS.221/1985 OF M.C.,VADAKKANCHERRY .................... APPELLANT(S) – APPELLANT – DEFENDANT : ------------------------------------------------------- K.A YUSEF, S/O. KUTTIHASSAN, ALIKKAPARAMBIL HOUSE, P.O. VETTIKKATIRI, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN RESPONDENT(S) – RESPONDENT - PLAINTIFF: -------------------------------------------------------- AMINA KUTTY UMMA, W/O.PARRAKKAL GIGGERI THANGEL, VETTIKIKATTIRI DESOM, NEDUPURA VILLAGE, TALAPPALLY TALUK (DIED) ADDITIONAL RESPONDENTS IMPLEADED: ------------------------------------------------- 2. FATHIMA NEEVI, D/O. PARAKKAL GIFFERI THANGAL, RESIDING AT VATTIKKATTIRI DESOM, NEDUPURA VILLAGE, TALAPPALLY TALUK. 3. AYSHA BEEVI, D/O. DO. DO. DO. 4. ZAINALABDEEN, S/O. DO. DO. DO. 5. HALEEMA BEEVI, D/O. DO. DO. DO. 6. MOHAMMED SHARAFI, S/O. DO. DO. DO. LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 6 VIDE ORDER DATED 9.2.2004 ON I.A. NO.786 OF 2003 ADV. SRI.SIBY MATHEW FOR R2TO6 SRI.WILSON URMESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.545 of 1997 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of October, 2009 J U D G M E N T --------------------- Second Appeal arises from the judgment and decree of learned Second Additional District Judge, Thrissur in A.S.No.91 of 1999 confirming judgment and decree passed by learned Munsiff, Wadakkancherry in O.S. No.221 of 1985 allowing recovery of possession of the suit property with mesne profits on the strength of title claimed by deceased respondent. She claimed that the suit property, described in the plaint schedule as four cents was in the possession of her late husband, Gefferi Thangal for more than thirty years and he effected improvements in the property constructing bund on the western side. After death of Gefferi Thangal deceased respondent continued in possession of the property. While so, she got assignment of the said property in L.A. Proceeding No.475/84/B7. There is a water chal on the east of the suit property. She used to take water from the said chal to her paddy fields on the south and west. She also used to have access through the suit property to the paddy field belonging to her. While so, appellant filled up the water chal on the eastern side and trespassed. Hence the suit. S.A. NO.545 of 1997 -: 2 :- 2. Appellant denied that deceased respondent or her husband had title or possession over the suit property. Respondent owned the paddy filed on the west of the suit property as per family partition of 1978 which respondent and others sold as per registered document in the year 1980. Property on the east of the bund was assigned by the Government to Kunhiraman as per Pattayam No.11 of 1971 and as per a Karar dated 1.12.1974 appellant got possession of the suit property from Kunhiraman. Thus he is in possession and enjoyment of the suit property. Appellant also contended that right if any of respondent is lost by adverse possession and law of limitation. 3. Trial court found that respondent has title over suit property and that even if it is assumed that there is no proof of title, she is entitled to recover possession on the strength of her previous possession in so far as appellant did not prove any better title. On the strength of title respondent was permitted to recover possession. First appellate court confirmed the finding of the trail court. Hence the Second Appeal. 4. The following substantial questions of law are framed for a decision. (i) Did not courts below err in S.A. NO.545 of 1997 -: 3 :- preferring subsequent pattayam to an anterior pattayam especially when subsequent pattayam does not even show any sub division of the survey number? (ii) Did not courts below go wrong in ignoring admission regarding appellant's title and possession in the sale deed of respondent? (iii) Were courts below justified in upholding respondent's title on suspicious and indefinite pattayam and without proper identification of the disputed plot by acceptable and better methods? (iv) Did not courts below err in negativing the plea of adverse possession and limitation? It is contended by learned counsel for appellant that deceased respondent was not able to prove the title claimed by her over the suit property and even going by Ext.B1, document executed by deceased respondent and others suit property belonged to and is in the possession of appellant. According to the learned counsel courts below went wrong in acting upon Ext.C1(b) plan prepared by the Advocate Commissioner. Further contention is that at any rate title S.A. NO.545 of 1997 -: 4 :- of respondent is lost by adverse possession and limitation. 5. Exhibit A1 is the purchase certificate issued in favour of respondent. It concerned 4 cents of dry land in Sy.No.1013/part. No sub division is mentioned, nor the boundaries in Ext.A1. In the plaint schedule the suit property is described as 4 cents in Sy.No.1013/part bounded by property belonging to appellant on the east, property of Karancherry on the north, paddy land on the west and lane on the south. Exhibit A3 is the copy of registry in favour of deceased respondent dated 21.11.1984. In Exhibit A3 also there is no mention of the boundaries of the property assigned but the property is described only by extent and survey number as above stated. Appellant produced Exts.B1 to B7. Exhibit B1 is the copy of sale deed dated 14.7.1980 executed by deceased respondent and others. In Ext.B1, eastern boundary of the property sold is stated as property in the possession of appellant. In the evidence of P.W.1 it is stated that property sold as per Ext.B1 is the plot on the western side of the disputed property. P.W.1, son of deceased respondent explained that deceased respondent and elder brother were not in station, deceased respondent's brother-in-law's brother-in-law was looking after the property and thus a wrong description was made in Ext.B1 regarding the eastern boundary. Exhibit B2 is the copy of document dated S.A. NO.545 of 1997 -: 5 :- 25.1.1983 as per which appellant claimed right over the property. But in Ext.B2, the western boundary given is not that of the assignee under Ext.B1. Exhibit B5 is the pattayam issued to the predecessor of appellant. That concerned 0.38.25 cents in Sy.No.1013/2, 0.15.75 cents in Sy.No.1013/3 and 0.16.50 cents in Sy.No.1013/5. Exhibit B5 also does not give the boundaries of the properties mentioned therein. 6. Advocate Commissioner appointed from the trial court inspected the properties and measured the same with the assistance of Village Officer and revenue records. P.W.3 is the Village Officer. Exhibit X1 is the Field Measurement Book and Ext.X1(a) is the field measurement plan of the property comprised in Sy.No.1013. Commissioner has reported that Ext.C1(b) plan was prepared with reference to Ext.X1(a). Details of assignment are not given in Ext.X1 (a). Contention of appellant that survey sub division is not mentioned in Ext.A1 is met by the trial court by the fact that details of assignment are not entered in Ext.X1(a) and that is why the details of survey sub division are not given in Ext.C1(b). Exhibit X2 is the file relating to the registry in favour of deceased respondent. I have gone through Ext.X2 and find that sketch prepared for the purpose of assignment tallied with Ext.C1(b). It is stated in Ext.X2 that deceased respondent had been in possession of the suit property for about 15 S.A. NO.545 of 1997 -: 6 :- years and the said property could be assigned to her. It is accordingly that Exts.A1 and A3 were issued in favour of deceased respondent. 7. So far as the claim of appellant is concerned file concerning assignment in his favour is not before court. Commissioner, after measurement of the property has found that the plot assigned to the appellant as per Ext.B5 did not tally on measurement with the suit property which is referred to in Exts.X1 and X2. Trial court has referred to the evidence in paragraphs 10 and 13 of the judgment. Trial court has observed that though a detailed objection was preferred by the appellant to Ext.C1 series, no attempt was made to substantiate the same. Lately it was contended in the court below on behalf of appellant that the disputed property is puramboke land. But there was no such contention either in the written statement or objection preferred to Ext.C1 series. Trial court has also referred to the documents relied on by the appellant, in paragraph 14 of the judgment and stated that Ext.B2 is based on Ext.B5, pattayam which I stated from the report of Commissioner did not tally with the measurement plans contained in Ext.X1 and X2. It is observed by the trial court that on a perusal of the schedule to Ext.B5 it could be seen that reference therein is to the coconut trees in the property referred to therein. It has come out in evidence that in the S.A. NO.545 of 1997 -: 7 :- suit property there is no coconut tree but there is only a poola and a few palm trees. According to the learned Munsiff on measurement it is found that appellant is in possession of excess area than what is shown in Exts.B2 and B5. Appellant was not able to specifically explain how he came into possession of the excess area. Even if it is assumed from Ext.X1 that even in the year 1980 appellant was in possession of the suit property that in my view does not affect the case of respondent since suit for recovery based on title is filed in the year 1985. It is true that Ext.A1 comes subsequent to Ext.B5, pattayam. But it is not shown that it is in respect of the property covered by Ext.B5 that Ext.A1 is issued. Suit property has been properly identified. Therefore Ext.A1 cannot be invalidated for the reason that it is subsequent on point of time to Ext.B5. On the evidence on record courts below are justified in holding in favour of the title claimed by respondent and granting eviction. Substantial questions of law raised are answered as above. Second Appeal fails and it is dismissed. No costs. THOMAS P.JOSEPH, JUDGE. vsv S.A. NO.545 of 1997 -: 8 :- THOMAS P.JOSEPH, J. =================== S.A. NO.545 OF 1997 =================== J U D G M E N T 28TH OCTOBER, 2009