IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 FAO.No. 14 of 2003() ------------------------------- AS.168/1999 of IIIRD ADDL. DISTRICT & SESSIONS COURT, KOZHIKODE OS.299/1986 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/RESPONDENTS 1 & 2/PLAINTIFFS ---------------------------------------------------------------------- 1. BALARAMAN, S/O.LATE MANAMBATT CHATTIPURAKKAL ACHUTHAN, PANNIYANKARA AMSOM, DESOM. KOZHIKODE TALUK. 2. KUNNAMBALATH RATNAVATHY, PANNIYANKARA AMSOM, DESOM.KOZHIKODE TALUK. BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE ADV. SRI.K.MOHANAKANNAN RESPONDENT(S)/ APPELLANTS 1 TO 4 & RESPONDENTS 3 TO 17/ DEFENDANTS 1 TO 4 AND 6 TO 20 --------------- *1. CHANDU, S/O.CHEMBAN VEETTIL KONNAN,(DIED) PANNIYANKARA AMSOM,DESOM, KOZHIKODE TALUK. 2. SADANANDAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 3. SIVARAMAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 4. PARAMESWARAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 5. BHAVANI, CHEVAYOOR AMSOM, DESOM, KOZHIKODE TALUK. 6. KRISHNAN KUTTY, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 7. SAVITHRI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. **8. PADIKKAL RAJALAKSHMI, IRINGALLUR AMSOM, DESOM, KOZHIKODE TALUK. (DIED). 9. THANKAM, WALAYANAD AMSOM,DESOM, KOZHIKODE TALUK. 10. VILASINI 2/- -2- FAO.No. 14 of 2003 11. FAISAL RAJ, KATCHERI AMSOM, KOZHIKODE TALUK. 12. MANOJ KUMAR, KATCHERI AMSOM, DESOM, KOZHIKODE TALUK. 13. SHYLAJAN, KATCHERI AMSOM, DESOM, KOZHIKODE TALUK. 14. RAJAMANI, WALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. 15. KATHIKEERTHI MANDHIRAN, WALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. 16. SARANAMGATHA PRIYAN, WALAYANAD AMSOM, DESOM,KOZHIKODE TALUK. 17.MANIKANDAN, WALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. 18. GURUVAYURAPPAN, WALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. 19. HARISANKAR, WALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. SUPPLEMENTAL RESPONDENTS 20. KALYYAMMU, W/O.LATE CHANDU CHEMBAMVEETTIL HOUSE, P.O.KALLAI, KEEZHEDAMPARAMBU, CALICUT. 21. PRABHAKARAN, S/O.LATE CHANDU -DO- -DO- 22. PRAKASHAN, -DO- -DO- 23. THANKAMANY, D/O.LATE CHANDU -DO- -DO- 24. SURESAN, S/O.LATE -DO- -DO- 25. SUJATHA, D/O.LATE CHANDU -DO- -DO- 26. RAMESAN, S/O.LATE CHANDU -DO- -DO- 27. PRADEEP, S/O. -DO- -DO- 28. RADHA, W/O.LATE SIDHARDHAN, CHEMBAMVEETTIL HOUSE, P.O.KALLAI, KEEZHEDAMPARAMBU, CALICUT. 29. SREEJITH, S/O. -DO- -DO- 30. REMYA D/O.-DO- -DO- * ARE IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 30/11/2007 IN IA 2655/07 3/- -3- FAO.No. 14 of 2003 RESPONDENTS 31 TO 34 IMPLEADED 31. JAYARAJAN, S/O.LATE SAVITHRI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 32. PREMA, W/O.SANKARAN, P.O.CHEVAYUR NELLIKODE, KOZHIKODE 33. LAILA, W/O.BHARGHAVAN, EAST KOZHIKODE, KACHERY AMSOM, KOZHIKODE DISTRICT. 34. JAYAPRAKASHAN, S/O. SAVITHRI , PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK **ADDL.R31 TO R34 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 8TH RESPONDENT VIDE ORDER DATED 30/11/07 IN IA NO.2566/2007. R3,R20 TO R30 BY ADV. SRI.C.P.MOHAMMED NIAS R5 TO R19 BY ADV. SRI.DEVIDAS.U.K FOR SRI.SANDEEP.E. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/10/2011, ALONG WITH FAO NO. 86 OF 2003 AND CONNECTED CASES, THE COURT ON 08/11/2011 DELIVERED THE FOLLOWING: sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. Nos. 14, 86, 87, 136 & 157 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of November, 2011. JUDGMENT Four suits were jointly tried and disposed of by a common judgment. The suits were O.S. Nos.299 of 1986, 422 of 1989, 423 of 1989 and 424 of 1989 filed before the Sub Court, Kozhikode. The trial court decreed O.S.299 of 1986 and dismissed the other suits. The aggrieved persons carried the matter in appeal as A.S.162 of 1999 against the judgment in O.S. 423 of 1989, A.S. 163 of 1999 against the judgment in O.S.424 of 1989, A.S. 167 of 1999 against the judgment in O.S. 422 of 1989 and A.S.168 of 1999 against the judgment in O.S. 299 of 1986. The appellate court heard the appeals jointly and by a common judgment allowed the appeals and remanded the matter to the trial court for fresh disposal in accordance with law. Aggrieved by the F.A.O.14/2003 & con.cases. 2 judgment, the plaintiffs in O.S.299 of 1986 have filed F.A.O. 14 of 2003 against the judgment and decree in A.S. 168 of 1999. F.A.O.87 of 2003 is filed against the judgment and decree in A.S.167 of 1999. F.A.O. 157 of 2003 is filed against the judgment and decree in A.S.162 of 1999 and two sets of persons have filed two F.A.Os., namely F.A.O.86 of 2003 and F.A.O.136 of 2003, against the judgment and decree in A.S. 163 of 1999. 2. The short facts necessary for the disposal of these appeals are as follows: The plaint schedule property which was in the possession of the karaima holders belonged to Vengalil Janaki Amma. As per marupattom deed No.155 of 1936, which is marked as Ext.A1 dated 6.11.1936, one Achuthan, father of the plaintiffs took the property on lease. The lease was renewed by Ext.A2 dated 31.1.1950. Achuthan had subsequently leased out the right to take usufructus from F.A.O.14/2003 & con.cases. 3 the property to one Gopalan as per document No.179/1950. However, Gopalan surrendered the property as per a release deed No.47/1951, which is evidenced by Ext.A3 dated 18.2.1951. Eversince then, the said Achuthan had been in exclusive possession and enjoyment of the property till his death. Consequent on the death of Achuthan, the plaintiffs and defendants 5 to 20 succeeded to the property. They were in joint possession of the property. Defendants 1 to 4 have no manner of right over the suit property. The plaintiffs have come to understand that they have created false documents in respect of the suit property. Relying on those fraudulent documents, a suit was filed by defendants 1 to 4. The claim made by the first defendant herein in that suit that he had obtained an oral lease from Janaki Amma over the suit property on 25.4.1956. That claim is patently false and it can be easily seen that the documents on which defendants 1 to 4 rely are fabricated and concocted ones. F.A.O.14/2003 & con.cases. 4 They also claimed to have obtained purchase certificate in respect of the suit property. Since the plaintiffs and defendants 5 to 20 are not parties to the documents, they are not binding on them. None of the documents relied on by the defendants 1 to 4 can affect the rights of the plaintiffs and defendants 5 to 20 over the suit property. In the light of the claims set up by defendants 1 to 4, it has become necessary for the plaintiff to lay the suit seeking declaration of title and possession and for consequential reliefs. 3. Resistance to the suit was offered by defendants 1 to 4. They disputed the claim of entrustment made to Achuthan as per marupattom deed, the subsequent entrustment to Gopalan to take usufructus and surrender by Gopalan to Achuthan. The documents possessed by defendants 1 to 4 are genuine and that would show that neither Achuthan nor the plaintiffs and defendants 5 to 20 F.A.O.14/2003 & con.cases. 5 have any manner of right over the suit property. The first defendant claims to have obtained oral lease from Janaki Amma on 25.4.1956 agreeing to pay purappad of Rs.14/- and honorary right of Rs.5/-. The first defendant is then said to have assigned the property to the third defendant retaining four cents of land. The first defendant resides therein. The third defendant is said to have obtained purchase certificate in respect of the property. The first defendant can at worst be only a karaima holder. There is no truth in the claim put forward by the plaintiffs and the intention is to somehow dispossess defendants 1 to 4 from the lawful possession of the property. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Issues were raised and evidence was adduced. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A11 from the side of the plaintiffs. The contesting defendants had D.Ws. 1 to 7 F.A.O.14/2003 & con.cases. 6 examined and Exts.B1 to B52 marked. Exts.C1 and C1(a) are the commission reports and plans. The fate of the suits had already been stated. It is unnecessary to repeat the same. So also that of the appeals. 5. The lower appellate court, while considering the appeals posed the question for consideration thus : so the main and important aspect to be considered is whether the right, title and possession claimed by the plaintiffs in O.S.299 of 1986 is correct or not? and whether the right, title and possession over the suit properties as claimed by defendants 1 to 4 is correct or not? 6. The appellate court found that the lease in favour of Achuthan was proved, whereas the oral lease claimed by Chandu and subsequent assignment to Sivaraman were found to be false. The appellate court went on to consider the question of possession and found that except Exts.A1 to A3 produced by the plaintiffs there was no F.A.O.14/2003 & con.cases. 7 other document produced by them to show their actual physical possession over the property. It is seen stated in the judgment of the lower appellate court that when the matter was being heard, the plaintiffs in O.S.299 of 1986 were unable to explain about the documents and evidence to prove their continued possession from 1956 onwards. The lower appellate court went on to observe that if as a matter of fact they or their predecessors in interest were in actual possession of the property, there would have been some evidence regarding the same. That, according to the learned Judge, casts a doubt regarding the claim of the plaintiff in O.S. 299 of 1986. 7. It is interesting to note that the lower appellate court found that the title vests with the plaintiffs in O.S. 299 of 1986 in respect of the suit property, but then goes on to observe that they were unable to produce any document to show their physical possession. On the other hand, the F.A.O.14/2003 & con.cases. 8 contesting defendants have produced several documents, some of which are assignment deeds executed by Sivaraman to show that he was in actual possession. He had also examined some of the assignees. In the light of these facts, the plaintiffs were bound to produce documents to show that they were in actual possession of the property. The lower appellate court also felt that the purchase certificate obtained by Sivaraman could not be easily ignored. On the basis of these findings the matter was remanded. 8. The following substantial questions of law are seen raised in F.A.O.14 of 2003: “(i) Whether the court of the District Judge is justified in ordering a remand of the case without proper adjudication of the materials in dispute? (ii) Whether an opportunity to the contesting defendants is just and necessary in view of the false ad fictitious documentary and oral evidence placed by them before the Court? F.A.O.14/2003 & con.cases. 9 (iii) Whether a remand of the case is just and proper without any legitimate or proper request made by the contesting defendants?” 9. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in remanding the matter to the trial court after having found that the title vests with the plaintiffs in the suit O.S. 299 of 1986. According to the learned counsel, once title is found in favour of the plaintiffs, it follows that the possession was with them. For the above proposition he relied on the decision reported in Nagar Palika, Jind v. Jagat Singh ((1995) 3 SCC 426) and Nair Service Society Ltd. v. K.C. Alexander (AIR 1985 SC 1165). According to the learned counsel, there was ample evidence before the lower appellate court to decide all the issues and remand was quite unnecessary. Learned counsel drew the attention of this court to the operative portion of the judgment of the lower appellate court and pointed out that the direction of F.A.O.14/2003 & con.cases. 10 the lower appellate court to take evidence afresh discarding the evidence already on record and to decide the issues afresh was quite uncalled for. If at all a remand was necessary, according to learned counsel, that could have been specific regarding a particular issue and there cannot be an open blanket remand discarding the entire evidence already on record and to decide the case afresh on the basis of the evidence to be adduced afresh and discarding the evidence already on record. 10. Learned counsel appearing for the respondents pointed out that the suit was one for declaration of possession and title and for other reliefs. Attention was drawn to the fact that the suit was not one for recovery of possession based on title. The plaintiffs in O.S.299 of 1986 claimed actual physical possession and if that be so, they have to produce documents to show that they were in actual possession. Learned counsel F.A.O.14/2003 & con.cases. 11 emphasised that the lower appellate court has observed in its judgment that the respondent before it, who are the plaintiffs in O.S. 229 of 1986, were unable to refer any evidence to show their actual possession over the suit property and except Exts.A1 to A3, no other documents were produced to establish their possession. Defendants 1 to 3 have produced several documents to show that they were in actual possession and enjoyment of the property. Purchase certificate was also obtained. The purchase certificate could not have been easily ignored. For the above proposition learned counsel relied on the decision reported in Patinhare Purayil Nabeesumma v. Miniyatan Zacharias (2008 KHC 6089). Learned counsel also pointed out that Section 110 of the Indian Evidence Act possession becomes more significant in determining the rights of the parties. It is also contended that no prejudice is caused to the plaintiffs in O.S.299 of 1986 because they also get an F.A.O.14/2003 & con.cases. 12 opportunity to adduce evidence regarding their possession and that can by no means said to be injurious. Thus, it is contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 11. It is very evident that the suit pertains to rival claims of tenancy. It relates to a property called Keezhamadam Paramba. While the plaintiff in O.S. 299 of 1986 rely on Exts.A1 to A3 to establish their claim, defendants 1 to 4 rely on oral lease deed by Chandu from one Janaki Amma in the year 1956. The trial court found that by Ext.A1 infact Achuthan was given the right to appropriate usufructus from the property. However, it is seen from the schedule that the possession with Janaki Amma was handed over to Achuthan. Ext.A2 is a deed executed by Achuthan to Leelavathi Amma. In Ext.A2 also Achuthan has been permitted to take income from the property. However, the schedule in that document also F.A.O.14/2003 & con.cases. 13 shows that the earlier possession with Leelavathi Amma had been given to Achuthan. The case of the plaintiffs is that Achuthan had given the property to Gopalan for taking usufructus drom the property for three years and Gopalan released the property to Achuthan. That would be clear from Ext.A3. Relying on Exts.A1 to A3 the plaintiff contended that they had title to the suit property and they have been in possession. There is nothing on record to show that after Ext.A3 Achuthan had either surrendered possession of the property to Janaki Amma or to Vengalil family to whom the Keezhamadam paramba belonged. 12. The improbabilities in the case put forward by defendants 1 to 4 can be found from the fact that when the property was handed over to Achuthan for a sum of Rs.275/- and later Achuthan to Gopalan for Rs.335/-, it is inconceivable that the landlord had subsequently leased out the property for Rs.14/- as purappadu and Rs.5/- as F.A.O.14/2003 & con.cases. 14 onakazhcha. As long as there is no evidence to show that Achuthan had either surrendered the property to Janaki Amma or to Vengalil family, one fails to understand how Chandu could have obtained an oral lease from Janaki Amma. 13. From the records, it is seen that there was a suit as O.S.78 of 1965 by the members of the Vangalil family, whereby a receiver had been appointed. Records would indicate that the receiver had filed a police complaint against Sivaramanan, who tried to forcibly take away the usufructus from the property and in interfering with the discharge of the duties by the receiver. 14. As already noticed, both claim title and alleged to have tenancy right from the same person, namely, Janaki Amma. As noticed by the trial court, the property was outstanding on lease at the time when the oral lease is claimed by Chandu. Normally, unless it is F.A.O.14/2003 & con.cases. 15 shown that Achuthan had surrendered the lease, there could not have been an oral lease to Chandu. Both the courts below have concurrently found that there is nothing to show that the property had been surrendered by Achuthan so as to enable Chandu to take oral lease from Janaki Amma. 15. Both the courts below have also found that Janaki Amma was in the habit of insisting for registered document in respect of transactions entered into by her, and such being the position, it is inconceivable that she would have given the property on lease to Chandu. 16. The lower appellate court in paragraph 22 of its judgment discussed about the rival claims of tenancy. It will be useful to refer the same. The lower appellate court has found, like the trial court, that Achuthan had taken the property on lease both from Janaki Amma and Leelavathi Amma. Ext.A2 clearly shows that the property belonged to F.A.O.14/2003 & con.cases. 16 Leelavathi Amma, Krishna Menon and Sarojini Amma which they obtained from a partition deed of 1934 in E.P.3000 of 1943 from the Kozhikode Munsiff's court. Therefore, it is clear that atleast in the year 1950 the property belonged to Leelavathi Amma, Krishna Menon and Sarojini Amma. The lower appellate court also noticed that from Ext.A2 it can be found that the execution petition E.P.3000 of 1943 was for eviction together with arrears of rent. O.S. 242 of 1945 was filed against Achuthan for evicting him with pattom arrears. The suit was decreed, and Achuthan filed an appeal, which was dismissed. The lower appellate court has noticed that while copy application was pending, the matter was compromised and Ext.A2 kychit was executed by Achuthan in favour of Leelavathi Amma, Krishna Menon and Sarojini Amma. The arrears of pattom were cleared and the property was handed over to Achuthan. This shows that at the time when Ext.A2 was executed, Janaki Amma had no F.A.O.14/2003 & con.cases. 17 rights over the property. That obviously means that the claim of defendants 1 to 4 that Chandu obtained oral lease from Janaki Amma has to be false. Apart from the fact that there is no evidence regarding the same, the records would indicate that Janaki Amma did not at that point of time have any right over the property. Going by Exts.A1, A2 and A3, it is clear that the property was outstanding in the possession of Achuthan and if that be so, unless it is shown that there is a surrender or some other means by which the landlord could have obtained the property from Achuthan, the oral lease cannot be believed. 17. It is true that the plaintiffs in O.S.299 of 1986 have only produced Exts.A1 to A3 in support of their case. Of course they have produced other documents which are not very relevant for the present purpose. It is also true that they have also sought for a declaration of possession over the suit property. But the evidence clearly shows that F.A.O.14/2003 & con.cases. 18 Achuthan was in possession of the property and there is nothing to show that he had lost possession. Once it is shown that Achuthan was in possession of the property at a given point of time, his possession will be deemed to have continued unless it is shown otherwise. It is interesting to note that defendants 1 to 4 have a case that Achuthan had only a karaima right. 18. The trial court has considered the question whether in the light of the recitals in Exts.A1 and A2, Achuthan could claim tenancy right. The trial court had found that oral lease claimed by Chandu and subsequent assignment deed executed by Chandu had no legal value. The trial court after referring to the various provisions of the Kerala Land Reforms Act has come to the conclusion that Achuthan is a cultivating tenant as contemplated under the provisions of the Act. It also found that the purchase certificate obtained by Sivaraman is a fraudulent document. F.A.O.14/2003 & con.cases. 19 It is significant to notice that the appellate court does not take a different view. The appellate court says that there is some doubt regarding the actual possession of Achuthan. The lower appellate court is willing to accept that atleast in 1951 Achuthan had possession over the property. If that be so, the lower appellate court ought to have found that he continued to be in possession unless there is no reason to doubt his possession. 19. One may here refer to the decision reported in Patinhare Purayil Nabeesumma's case (supra) relied on by the learned counsel for the respondents. That relates to the conclusiveness of the purchase certificate. One can have no quarrel with the proposition at all. But the dictum laid down in the said case is not applicable in the present case. A purchase certificate is conclusive only as regards the parties to the proceedings and it cannot bind the parties who have not been impleaded in the proceedings. More so, F.A.O.14/2003 & con.cases. 20 the document which is seen to be a fraudulent one cannot be said to be binding at all. The finding of the trial court regarding the purchase certificate is not upset by the appellate court. Further the appellate court feels suspicious if as a matter of fact Achuthan was a tenant of the property, since neither Achuthan nor his legal heirs have taken any steps to obtain purchase certificate. 20. Of course the doubt is reasonable and genuine. But is it sufficient to order remand by the lower appellate court? It is shocking to note that the lower appellate court had directed the trial court to take fresh evidence and to consider the entire issues afresh. 21. The order of remand deface the reason. Title is found in favour of the plaintiffs by both the courts below and that the oral lease set up by Chandu is false. At any rate, Achuthan was shown to be in possession of the F.A.O.14/2003 & con.cases. 21 property and there is nothing to show that he has been deprived of his possession. 22. One cannot omit to note that the suit is for declaration of title also. The title claimed herein is one of tenancy. Once title is found in favour of Achuthan, he should be deemed to have been in possession. At any rate, Achuthan had both possession and title over the suit propertyand that is found by both the courts below. Under such circumstances it is for defendants 1 to 4 to show how Achuthan had lost possession and how they came into possession. 23. It is well settled that the state of affairs which exists at one point of time will be deemed to have been continued until proved otherwise. 24. Probably, the remand could have been justified on the ground that the trial court has not properly considered the question of adverse possession and limitation F.A.O.14/2003 & con.cases. 22 which was one of the defence set up by defendants 1 to 4 in O.S.299 of 1986. But the act of setting aside the entire decree and directing a fresh consideration in the light of the fresh evidence to be taken is quite unwarranted. There is no finding by the lower appellate court as to whether the purchase certificate is binding