IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 SA.No. 148 of 1996(A) ----------------------------------- AS.7/1990 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.354/1986 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/APPELLANT/PLAINTIFF: CHERIAN VARGHESE, PERUMPATTIL PUTHEN VEETTIL, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKARA (DIED).* LRs IMPLEAED 2. P.V.CHERIAN, S/O P.C.VARGHESE, PERUMPATTIL PUTHEN VEEDU, CHERUKUNNAM MURI, THEKKEKARA, MAVELIKARA TALUK, ALLEPPEY DISTRICT. *3. MARIAMMA VARGHESE, W/O P.C.VARGHESE, DO. DO. (DIED LRs IMPLEADED). 4. ALEYAMMA ABRAHAM, D/O P.C.VARGHESE, DO. DO. 5. SUSAMMA MATHAI, DO. DO. DO. 6. MARIAMMA ALEXANDER, DO. DO. DO. 7. SARAMMA.P.V., DO. DO. DO. 8. RAICHEL VARGHESE, DO. DO. DO. 9. SOSAMMA.P.V., DO. DO. DO. 10. DAISY VARGHESE, DO. DO. DO. *Impleaded as per order dt.8.2.2000 on CMP 237/2000 **Additional appellants 2 and 4 to 10 are recorded as the LRs of deceased 3rd appellant as per order dt. 14.1.03 vide memo cf 60/2002. BY ADV. SRI.TKM.UNNITHAN SRI.P.G.GANAPPAN RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. ANNAMMA KUNJAMMA, THUNDIL VADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKARA. 2. KUNJUMOLE, D/O ANNAMMA KUNJAMMA, DO. DO. 3. AMMINI, DO. DO. DO. 4. BABY, S/O ANNAMMA KUNJAMMA, DO. DO. 5. KRISHNANKUTTY, THUNDIL VADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKARA. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2010 ALONG WITH SA NO. 202 OF 1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.Nos.148 & 202 of 1996 -------------------------- COMMON JUDGMENT The deceased appellant was the plaintiff in O.S.No.354/1986 and the sole defendant in O.S.No. 332/1986 on the file of Munsiff's Court, Mavelikara. Plaintiff in O.S.No.332/1986 is the first defendant in O.S.No.354/1986. S.A.No.202/1996 is filed challenging the judgment and decree in A.S.No.11/1990 of Additional District Court-II, Mavelikara, confirming the decree granted in O.S. No.332/1986. S.A.No.148/1996 is filed challenging the judgment and decree in A.S.No.7/1990, confirming the decree in O.S.No.354/1986. 2. O.S.No.354/1986 was filed seeking a decree for declaration of title and recovery of possession of the plaint schedule property. O.S.No.332/1986 was filed by the first defendant in O.S.No.354/1986 seeking a decree for permanent prohibitory injunction restraining the appellant from SA 148&202/96 2 trespassing into the plaint schedule property. Plaint schedule property, in both the suits, is, admittedly, the one and the same, having an extent of eleven cents in Sy.No.129/5C of Thekkekkara Village of Mavelikara Taluk. The property, admittedly, originally belonged to the family of Kamalamma Kunjamma. Under Partition Deed No.6640 of 1119 M.E., 50 cents in Sy.No.129/5C was allotted to the share of Kamalamma Kunjamma and her children. Under Exhibit A2 sale deed dated 14.12.1964, Kamalamma Kunjamma, on her behalf and on behalf of her children, assigned 25 cents in Sy.No.129/5C in favour of the appellant. Subsequently, as per Exhibit A1 sale deed dated 31.8.1965, the very same assignor assigned 11 cents, which lies west to the property covered under Exhibit A2, in favour of the appellant. The said property was also part of the 50 cents allotted to her under Partition Deed 6640 of 1119 M.E. Appellant is claiming title to the plaint schedule property under Exhibits A1 and A2. The said 11 cents form part of the property. It is SA 148&202/96 3 contended that first respondent, the plaintiff in O.S.No.332/1986, who is the first defendant in O.S. No.354/1986, filed O.A.No.38/1973, claiming to be a tenant, entitled to purchase 64 cents of property in R.S.No.129/5C, showing the appellant as the landlord. By Exhibit A3 order dated 27.3.1974, that original application was dismissed, accepting Exhibit A4 report of the Revenue Inspector, which shows that it was not the first respondent, who claimed tenancy, who was in possession of the property, but the appellant. Subsequently, first respondent filed O.A.No.148/1974 before the Land Tribunal for purchase of kudikidappu right contending that she is entitled to kudikidappu right. That original application was also dismissed. First respondent, thereafter, filed O.A. No.916/1975 claiming that she is a tenant in respect of 11 cents of the property and is entitled to purchase the jenm right. That original application was subsequently, re-numbered as O.A. No.37/1978. By Exhibit B9 order, that original SA 148&202/96 4 application was allowed finding that first respondent is a tenant entitled to purchase the jenm right. Appellant challenged that order before the Appellate Authority in A.A.No.22/1980. By Exhibit A5 judgment dated 22.6.1984, the appeal was allowed and Exhibit B9 order was set aside. First respondent challenged that order before this Court in C.R.P.No.1832/1984. By Exhibit A6 order, the revision was dismissed, confirming Exhibit A5 judgment of the Appellate Authority, finding that first respondent is not a cultivating tenant entitled to purchase the jenm right. Contending that respondents in S.A.No.148/1996 trespassed into the plaint schedule property and reduced into their unlawful possession, O.S.No.354/1986 was filed seeking a decree for recovery of possession on the strength of title. First respondent, on the other hand, instituted O.S.No.332/1986 contending that appellant is attempting to trespass into the property in her possession and therefore, she is entitled to get a decree for permanent prohibitory SA 148&202/96 5 injunction. 3. Learned Munsiff tried both the suits jointly. O.S.No.354/1986 was treated as the main case. As per common judgment dated 30.8.1989, O.S. No.354/1986 was dismissed, finding that appellant did not identify the properties covered under Exhibits A1 and A2 and prove that it is the plaint schedule property and therefore, did not prove his title to the plaint schedule property. Finding that first respondent is in possession of the property and appellant failed to establish his right, a decree for injunction was granted in O.S.No. 332/1986. The said judgments and decrees were challenged before II Additional District Court, Mavelikara in A.S.Nos.7/1990 and 11/1990. 4. Learned Additional District Judge, on re- appreciation of evidence, confirmed the judgments and decrees and dismissed the appeals. These second appeals are filed challenging the said judgment and decree. SA 148&202/96 6 5. When the appeals were pending, appellant died and additional appellants 2 to 10 were impleaded as his legal heirs. On the death of the third additional appellant, appellants 2 and 4 to 10 were recorded as her legal heirs. Though first respondent originally appeared through a counsel, on the demise of the learned counsel, no fresh vakalath was filed. Respondents were found absent and there was no representation on their behalf. 6. Appeals were admitted formulating the following substantial questions of law: 1. Whether the courts below were right in trying to identify the plaint schedule property on an interpretation of Exhibits A1 and A2 sale deeds? 2. Whether the courts below were justified in ignoring Exhibits A3, A5 and A6 judgments relating to the right, title and possession of the parties involved in the suit as well as the admission of the title of the appellants therein? 7. Learned counsel appearing for the appellant was heard. SA 148&202/96 7 8. Plaint schedule property in both the suits is admittedly one and the same. Appellant is claiming that plaint schedule property forms part of the property covered under Exhibits A1 and A2. written statement of the first respondent in O.S. No.354/1986 does not show that identity of the plaint schedule property was disputed. No issue regarding identity of the plaint schedule property was framed. In such circumstances, failure of the appellant to take out a commission to identify the plaint schedule property is not at all fatal. Under Exhibit A2 sale deed dated 14.12.1964, 25 cents in Sy.No.129/5C was transferred in favour of the appellant. Later, under Exhibit A1 sale deed, 11 cents which lies immediately to the west of the property covered under Exhibit A2 was also assigned in favour of the appellant. The courts below finding that the western boundary of Exhibit A2 is not the remaining property allotted to the share of the assignor, held that after assigning the property covered under Exhibit A2, there cannot be SA 148&202/96 8 any further property to be assigned in favour of the appellant and hence, appellant has not identified the plaint schedule property or established his title. The courts below also took the view that as the partition deed of the assignor was not produced, the question whether after Exhibit A2 sale deed, the assignor was left with any property could not be decided. At the same time, it is to be borne in mind that plaint schedule property in O.S.No.354/1986 is the very same plaint schedule property in O.S.No.332/1986. 9. Case of the first respondent is that she has been in possession of the very same plaint schedule property, for which she had applied for purchase of jenm right before the Land Tribunal. Exhibit A3 order of the Land Tribunal, with Exhibit A4 report of the Revenue Inspector, shows that first respondent filed an original application claiming that she is in possession of 64 cents as a cultivating tenant and the Revenue inspector found that the property is only 36 cents and it is in the SA 148&202/96 9 possession of the appellant. It is for that reason, the original application was dismissed under Exhibit A3 order finding that first respondent did not adduce any evidence. It is thereafter, first respondent filed O.A.No.148/1974 for purchase of kudikidappu right evidently claiming that first respondent is only entitled to purchase the kudikidappu right in respect of her residential property. It was also dismissed. Appellant is admitting that first respondent was granted a lease in respect of 2½ cents of property by the Tharwad of the assignor of the appellant and she resides in that property. It is, thereafter, confining the tenancy right to only 11 cents, which could only be the plaint schedule property, first respondent filed O.A.No.196/1975 before the Land Tribunal. Though by Exhibit B9 order, Land Tribunal found that first respondent is a cultivating tenant, entitled to purchase the jenm right, by Exhibit A5 order, Appellate Authority set aside that order and found that first respondent is not a cultivating SA 148&202/96 10 tenant. That order was confirmed by this Court by Exhibit A6 order on the revision petition filed by the first respondent. In such circumstances, it is clear that first respondent had claimed originally tenancy right in respect of 64 cents and thereafter, kudikidappu right in respect of the residential house and thereafter, tenancy right in respect of 11 cents, including the residential property, which were all dismissed by the Land Tribunal. In all these petitions, first respondent impleaded appellant as the landlord, admitting title of the appellant, which could only be based on Exhibit A1 and Exhibit A2. In such circumstances, it can only be found that Exhibit B9/A5/A6 orders are in respect of the plaint schedule property in O.S.No.332/1986, which is the same property in O.S.No.354/1986. If that be so, by virtue of Exhibit A5, which was confirmed by this Court in Exhibit A6 order, first respondent cannot claim that she is a tenant of that property as that claim was admittedly rejected by the Land Tribunal SA 148&202/96 11 and it has become final. Therefore, if the plaint schedule property forms part of the property covered under Exhibits A1 and A2, appellant is definitely entitled to a decree for recovery of possession. 10. But, one more hurdle stands in the way of the appellant. Appellant is admitting that first respondent was granted a lease of 2½ cents by the Tharwad of the assignor of the appellant and that first respondent was residing in that property. Even now, there is a house in that property. If, excluding 2½ cents, there is no 11 cents, as claimed by the appellant, he cannot get recovery of possession of the whole property. Recovery of possession was sought for in O.S.No.354/1986, inclusive of the 2½ cents. Even if appellant has title to that property, he is not entitled to the recovery of possession of that property, as it is admitted that first respondent is a tenant of that 2½ cents. Therefore, a proper identification of the property, before granting a decree, is a must. SA 148&202/96 12 In such circumstances, the judgments and decree passed by the courts below are set aside. Both the suits are remanded to Munsiff's Court, Mavelikara for fresh disposal in accordance with law. Appellant/plaintiff is permitted to take out a commission to identify the plaint schedule property so as to establish that it forms part of the property obtained under Exhibits A1 and A2. Appellant is also permitted to produce the partition deed of the assignor, by which, the assignor obtained the property. Trial court must direct the Commissioner to identify the property allotted to the share of the assignor of the appellant and then identify and locate the property covered under Exhibits A1 and A2 and also to locate the 2½ cents which, admittedly, was granted on lease to the first respondent. Excluding the 2½ cents, appellant is entitled to recover possession of the balance extent from the possession of the first respondent if that property falls within the properties covered under Exhibits A1 and A2. If the SA 148&202/96 13 property so identified, excluding the 2½ cents, forms part of the properties covered under Exhibits A1 and A2, appellant/plaintiff is entitled to a decree for recovery of possession, as first respondent is not a tenant entitled to any protection under Kerala Land Reforms Act and also cannot claim adverse possession as against the appellant. Parties are directed to appear before the trial court on 17.03.2010. As respondents are absent, learned Munsiff to issue summons to the defendants in O.S. No.354/1986 for appearance. Send back the records to the courts below. Refund the court fee paid on the appeal memorandum. 4th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 148&202/96 14 M.Sasidharan Nambiar, J. ------------------------- S.A.Nos.148 & 202 of 1996 ------------------------- COMMON JUDGMENT 4th February, 2010