IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 RSA.NO. 930 OF 2004() -------------------------------- AS.2/2002 OF ADL.SUB COURT, THALASSERY OS.79/1997 OF MUNSIFF COURT, THALASSERY .................... APPELLANT – RESPONDENT - PLAINTIFF ------------------------------------------------------- PATTATHARI KUTTIRAMAN, S/O.BAPPU, BUSINESS, RESIDING AT ANJARAKANDY AMSOM, KAMETH DESOM, KANNUR TALUK. BY ADV. SRI.K.V.SOHAN SRI.C.K.SREEJITH RESPONDENT(S): APPELLANT/DEFENDANT ---------------------------------------------------------- PUTHUKKUDI NARAYANAN, S/O.GOVINDAN, RESIDING AT ANJARAKANDY AMSOM, KAMETH DESOM, KANNUR TALUK. ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2010 ALONG WITH CRP NO. 1027 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== R.S.A. No.930 of 2004 and C.R.P. No.1027 of 2005 ==================================== Dated this the 20th day of May, 2010 J U D G M E N T Following substantial question of law is framed for a decision: When plaint schedule property is exactly the same as is described in Ext.A3, certificate of purchase to which the defendant was admittedly a party and which has become final and then parties virtually admitted before trial court that plaint schedule property is properly identified by the Commissioner, was the lower appellate court justified in reversing the decree of trial court holding that property is not properly identified? 2. Second Appeal arises from judgment and decree of learned Additional Sub Judge, Thalassery in A.S. No.2 of 2002 reversing judgment and decree of the learned Munsiff, Thalassery in O.S. No.79 of 1997 and non-suiting appellant/plaintiff. He claimed to be a tenant of the suit property – 10 cents in R.S. No.2/5 of Ancharakkandy Village. According to the appellant the said R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 2 :- property belonged to the late Kunnummal Govindan, father of respondent/defendant from whom he obtained a lease of a portion of the said property for agricultural purposes on 15.04.1950 for a period of 12 years on agreement to pay rent of Rs.2/- per year. It is the further case of appellant that he has been paying rent to the said Govindan and after his death to the respondent/defendant. Govindan had granted a lease of 1¼ cents out of the said property to his son, Raghavan (brother of respondent) who executed Ext.A5, Marupatt in favour of Govindan on 12.9.1938. Later, after the lease in favour of the appellant he obtained assignment of right of the said Raghavan in the said 1¼ cents in the name of his wife as per Ext.A6. The said 1¼ cents forms part of the 10 cents scheduled in the plaint. Appellant is in possession and enjoyment of the suit property. He constructed shop rooms in the suit property (10 cents) and has been enjoying the building and the property. He obtained purchase certificate from the Land Tribunal impleading the respondent. Apprehending trespass by the respondent he laid the suit. Respondent denied that there was any lease in favour of the appellant and that the latter has been paying rent either to R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 3 :- Govindan or himself. He denied possession claimed by the appellant. He denied that there was any lease in favour of Raghavan and that Raghavan constructed building in the 1¼ cents. Further contention is that the suit is bad for non-joinder of necessary parties since all legal heirs of the late Govindan are not impleaded. Learned Munsiff held that as the suit is for injunction alone, non-impleadment of other legal heirs of Govindan is not fatal. Relying on the report of the Advocate Commissioner, issue regarding identity of the property was answered in favour of the appellant. It was also observed that there was no serious dispute regarding identification made by the Advocate Commissioner. Learned Munsiff relying on the evidence of P.Ws.1 and 2, Exts.A1 to A11 series and C1 and C2, report and plan submitted by the Advocate Commissioner held that appellant is entitled to the injunction prayed for and decreed the suit. Respondent took up the matter in appeal. In the meantime respondent challenged the order issuing purchase certificate in respect of the suit property to the appellant before the Appellate Authority (L.R.), Kannur with an application to condone the delay of about 20 years. Appellate Authority considered the contentions R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 4 :- raised by the respondent and found that delay was not liable to be condoned. Accordingly the application to condone delay and consequently the appeal were dismissed. That order is under challenge in C.R.P. No1027 of 2005. Learned Sub Judge who heard the appeal from the judgment and decree of the learned Munsiff was of the view that there was no proper identification of the suit property nor evidence to show that appellant is in possession thereof. On those findings judgment and decree of learned Munsiff were reversed and the suit was dismissed. Appellant challenges judgment and decree of the first appellate court in this Regular Second Appeal. Learned counsel for appellant would contend that there is sufficient evidence to prove the tenancy claimed by the appellant in respect of the suit property. According to the learned counsel there was due publication of public notice as required under Section 72F(2) of the Kerala Land Reforms Act and the presumption regarding publication of notice is not rebutted. It is also the contention of learned counsel that Ext.A1 series would show that respondent himself had accepted rent from the appellant and there is no contra evidence in that regard. Respondent has even refused to go into the witness box. R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 5 :- According to the learned counsel this being a suit for injunction paying court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act what the court is to consider is only whether appellant was in possession of the suit property on the date of suit. Finding of the first appellate court that there is no identification of the property is not correct. Learned counsel for respondent would contend that there is no proper identification of the suit property and the description given in the plaint schedule and Ext.C1, report of the Advocate Commissioner do not tally. According to the learned counsel no notice was served on the respondent or any other legal heir of the late Govindan as regards the proceeding before the Land Tribunal which culminated in Ext.A2, order and Ext.A3, purchase certificate and hence the same are not binding on the respondent. 3. As the learned counsel for appellant submitted and rightly too, this being a suit for injunction what is relevant for consideration is whether appellant was in possession of the suit property on the date of suit. Reference to title is required only when it is necessary to decide the issue of possession. I shall consider whether appellant was successful in proving that he was R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 6 :- in possession of the suit property on the date of suit. 4. In the plaint schedule the suit property is described as 10 cents in R.S. No.2/5 of Ancharakkandy Village bounded by road on east and south and paramba on the west and north. In Ext.C1, report the Advocate Commissioner has stated that on the northern side of the suit property, it is road. Other boundary descriptions given by the Advocate Commissioner tallied with the descriptions in the plaint schedule. Following Ext.C1, the plaint schedule was amended to state that on the north of suit property it is the road. As such the contention that descriptions in the plaint schedule and the one given by the Advocate Commissioner in Ext.C1, report do not tally cannot be accepted. 5. Appellant has given evidence as P.W.1 and testified to his case of possession. P.W.2 is a worker who claimed to have worked in the suit property and stated that appellant is in possession and enjoyment of the said property. Advocate Commissioner in Ext.C1 stated that there are shop rooms in the suit property bearing door Nos.277 to 281. Exhibit A10 series are receipts produced by the appellant for payment of building tax where door Number of the shop rooms is stated as 7/222 to 225. R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 7 :- But it is seen from Ext.A4(i), another receipt for payment of building tax that the door numbers are 277 to 281. Exhibit A9 also refers to the said door numbers. That tallies with the door Numbers given by the Advocate Commissioner in Ext.C1. Other documents produced by the appellant are Ext.A4 to A4(g) series, receipts for payment of revenue for the 10 cents in R.S. No.2/5. It is seen from Ext.A4 series that from 1976 onwards appellant has been paying revenue for the 10 cents comprised in R.S. No.2/5. 6. So far as Ext.A2, order of Land Tribunal and Ext.A3, purchase certificate are concerned respondent has a contention that the order and purchase certificate were obtained without notice to him or other legal heirs of the late Govindan. Exhibit A1 series are produced to show that after the death of Govindan respondent himself was receiving rent from the appellant. This is denied by the respondent. It is true that respondent has not mounted the witness box but his son as D.W1 denied that any such receipt was issued by the respondent. So far as the issue of individual notice to the respondent pursuant to the application for purchase of landlord's right made by the appellant is concerned it is seen from the order of the Appellate Authority (L.R.) produced R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 8 :- in C.R.P.No.1027 of 2005 that notice was served on one Anandan allegedly on behalf of the respondent. Respondent has a case that the said Anandan is the Uncle of the wife of appellant. It is not necessary to go into the validity of the purchase certificate since as I stated that the suit is for injunction based on possession and on the facts, circumstances and evidence on record it is possible to decide the issue of possession claimed by the appellant. I find from the order of the Appellate Authority (L.R.) under challenge in the C.R.P., that what was largely considered was the issue regarding condonation of delay of 20 years. Appellate Authority held that the delay cannot be condoned. However, that does not affect the right of the respondent to challenge Ext.A2 and A3 on the ground that it is obtained without notice to him, are not binding on him and other legal heirs of the late Govindan and is vitiated by fraud and collusion. The civil court is competent to decide those issues and incidentally the issue of tenancy also. But that is not a matter required to be decided in this proceeding. Those issues are left open. 7. So far as identification of the suit property is R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 9 :- concerned, Advocate Commissioner with reference to the measurements and boundaries given in the plaint schedule has identified the suit property as plots A, A1 and A2 measured 9.31 cents. Adjacent to that are plots A3 and A4 which the Advocate Commissioner found lay beyond the boundary of the suit property. Learned counsel for respondent has a contention that there is no proper identification of the suit property in that there is no document produced by the appellant showing measurement of the property claimed by him. But this being a suit for injunction what is necessary is to identify the boundary of the property. The Commissioner has reported in Ext.C1 that plots A1 and A2 have visible boundaries to separate it from the property of respondent. Property in the possession of respondent is shown as situated towards further west of plot A2. I stated from the evidence on record that appellant is proved to be paying tax for the building referred to in Ext.C1 and situated in the suit property. I also find from the judgment of learned Munsiff that the issue regarding identity was not seriously contested by the respondent in the trail court in the light of the report of the Advocate Commissioner. Having regard to these aspects, the evidence of P.Ws.1 and 2 and R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 10 :- also taking into account that respondent was not able to produce any contra evidence I am inclined to think that first appellate court was not justified in finding that there was no proper identification of the suit property. I hold that suit property is properly identified by the Advocate Commissioner as plots A, A1 and A2. So far as possession of suit property is concerned there is sufficient evidence on record which I have discussed above to show that as on the date of suit appellant has been in possession of the suit property. There is no case or evidence that such possession was lost thereafter. First appellate court was not correct in holding that there is no proper identification of the suit property and that possession claimed by the appellant is not proved. Substantial question of law raised is answered accordingly. 8. Learned counsel for respondent has a contention that cause of action pleaded in the plaint is cutting of a 'Murukku' tree but going by the report of the Advocate Commissioner that tree is situated beyond the suit property and hence there is no cause of action for the suit. That contention I am afraid, cannot be sustained. For, 'cause of action' is the bundle of materials which R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 11 :- gives the appellant a right of action. Even if it is assumed that the allegation regarding cutting of Murukku tree is not correct contention raised by the respondent in the written statement denying possession claimed by the appellant justified apprehension of appellant that respondent may trespass into the suit property. That gave the appellant a right of action. Appellant is accordingly entitled to get decree for prohibitory injunction in respect of the plots A, A1 and A2 in Ext.C2, plan. 9. As regards the contention of respondent that Exts.A2 and A3 are vitiated by fraud and collusion and the same were procured without notice to the respondent and other legal heirs of the late Govindan and hence not binding on them is concerned, I leave that matter open for consideration in appropriate suit if instituted by the parties concerned. Resultantly, (A) The Second Appeal is allowed. Judgment and decree of the first appellate court are set aside and the suit is decreed in the following lines: R.S.A. No.930 of 2004 & C.R.P. No.1027 of 2005 -: 12 :- (i) Appellant is granted a decree for prohibitory injunction as prayed for as regards plots A, A1 and A2 in Ext.C2, plan. (ii) Exhibit C2, plan will be appended to the decree of this Court. (B) Civil Revision Petition is disposed of in the light of the observations I have made above reserving right of the parties to agitate their claim of title over the suit property in appropriate proceedings. (C ) Parties shall suffer their costs. Interlocutory Application No.1629 of 2004 shall stand closed. THOMAS P. JOSEPH, JUDGE. vsv