IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 SA.No. 4 of 1995(A) ------------------- A.S.NO.47/1990 OF DISTRICT COURT, KOLLAM O.S.No.519 OF 1984 OF MUNSIFF'S COURT, KARUNAGAPPALLY APPELLANT(S)/APPELLANT/DEFENDANT: -------------- P.MUTHUKRISHNAN ACHARY, MARANGATTU THEKKETHARAYIL, PADANAYARKULANGARAVADAKKUM MURI, KARUNAGAPPALLY. (DIED) (LRS IMPLEADED) ADDL.APPELLANTS: 2. SAROJINI AMMA, W/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. 3. THYAGA RAJAN, S/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. 4. REGHUNATHAN, S/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. 5. RAJALAKSHMI, D/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. 6. PRASANNAKUMAR, S/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. 7. PRADEEP, S/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. SA NO.4/1995 2 8. PRASAD, S/O.P.MUTHUKRISHNAN ACHARY, AGED 67 YEARS, RESIDING AT MARANGATTU THEKKATHARAYIL, PADANAYAR KULANGARA, VADAKKUM MURI, KARUNAGAPPALLY. ADDL.APPELLANTS 2 TO 8 ARE IMPLEADED AS THE LRS OF DECEASED DECEASED SOLE APPELLANT AS PER THE SEPARATE ORDER DATED 4.7.2008 IN IA NO.1964/2007. BY ADV. SMT.C.G.BINDU RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- M.EBRAHIM, PATTOLIPUTHEN VEEDU, KALLELIBHAGOM, THODIYOOR VILLAGE. ADV. SRI.B.KRISHNA MANI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, ALONG WITH SA NO. 5 OF 1995 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA NO.4/1995 ORDER ON CMP NOS.13/1995, 2199/1996, 160/2000 & 62/2005 IN SA NO.4/1995 DISMISSED. 13.3.2009 Sd/-THOMAS P.JOSEPH, JUDGE. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.4 of 1995 & S.A.No.5 of 1995 -------------------------------------- Dated this the 13th day of March, 2009. JUDGMENT Parties are referred to as the plaintiff and defendant as in O.S.No.519 of 1984 for convenience. 2. Plaintiff filed O.S.No.519 of 1984 originally for a decree of prohibitory injunction stating in plaint schedule the property in respect of which that relief is sought as 31 cents in survey No.16549 bounded by Sasthamcotta- Karunagappally road on the south, nilam belonging to Thanathu Koyickal on the north, Government puramboke on the east and nilam belonging to Vellimana on the west. Plaintiff claimed that he got the said property as per a lease from Vijayabhavanath Krishnan Unnithan in the year 1966 and from then onwards he is in possession thereof. It is further claimed that he obtained purchase certificate from the Land Tribunal, Karunagappally in respect of the said property on 20.8.1976. Defendant is in possession of about five cents on the east of the said property. He, basing on some documents fraudulently created tried to trespass into the suit property and hence the plaintiff sought for a decree of prohibitory injunction. Defendant contended that the entire property in survey No.16549 originally belonged to Vijayabhavanath Krishnan Unnithan and that in respect of Government puramboke, L.C. proceedings No.111/56/512 was SA Nos.4 & 5 of 1995 2 initiated against him. Out of the said property, only 31 cents towards north was leased to the plaintiff and it is regarding the said 31 cents that plaintiff obtained purchase certificate. The remaining property on the south continued to be in the possession and enjoyment of Vijayabhavanath Krishnan Unnithan. While so, Vijayabhavanath Krishnan Unnithan gave the said property on the south into the possession of the defendant followed by transfer of title as per Ext.B1, unregistered assignment deed dated 1.10.1984 for a consideration of Rs.95/-. Defendant claiming right, title, interest and possession of the said property filed O.S.No.528 of 1984 against the plaintiff in O.S.No.519 of 1984 seeking declaration of title and possession and for prohibitory injunction. In that case, plaintiff in O.S.No.519 of 1984 (as defendant in O.S.No.528 of 1984) contended that the entire property lying within the four boundaries first above stated was demised to him on lease by Vijayabhavanath Krishnan Unnithan in the year 1966 and thus, he is the owner-in-possession of the entire land upto the road on the south. In the court below, an Advocate Commissioner inspected the properties with the assistance of the surveyor and submitted plan and report - Ext.C1 series. The property referred to as 31 cents in the purchase certificate ( Ext.A1) in favour of the plaintiff on measurement was found to be 36.502 cents including 'vadavuvasi'. On the south of the said 36.502 cents the commissioner found another 6.410 cents in survey No.16549/1 and, yet another .655 square links towards the south-western corner of the said 6.410 cents lying SA Nos.4 & 5 of 1995 3 adjacent to the road on the further south. Thus, the total extent found in survey No.16549 is 43.567 cents. The commissioner inspected the properties again with the assistance of a surveyor and submitted Ext.C2 series, plan and report wherein the present extent of 31 cents referred to in Ext.A1 was found to be 36.100 cents in survey No.16549 and the extent of 6.410 cents and .655 square links referred to in Ext.C1 was found to be 6.250 cents and .650 square links, respectively. Obviously based on the reports and plans plaintiff in O.S.No.519 of 1984 got the plaint schedule amended stating the extent of the suit property as 36.500 cents. He alleged that a portion of the said property on the east was trespassed upon by the defendant by putting gravel on that portion and accordingly, sought for recovery of possession of that portion and for fixation of the eastern boundary. Defendant (in O.S.No.519 of 1984) who is the plaintiff in O.S.No.528 of 1984 also amended the plaint schedule in O.S.No.528 of 1984 incorporating 5.912 cents on the south of the 36.100 cents referred to in Ext.C2 and on the north of Sasthamcotta-Karunagappally road. Learned Munsiff found that the 36.100 cents (including vadavuvasi) referred to as plot No.1 in Ext.C2 belongs to and is in the possession and enjoyment of the plaintiff in O.S.No.519 of 1984 and accordingly granted a decree declaring his title, allowing recovery of possession of the portion on the eastern side trespassed upon by the defendant and for fixation of the eastern boundary of the said property. So far as O.S.No.528 of 1984 is concerned, learned Munsiff SA Nos.4 & 5 of 1995 4 found that the defendant (plaintiff in O.S.No.528 of 1984) has no right, title, interest or possession over any portion of the property scheduled therein and consequently dismissed the suit. Defendant (plaintiff in O.S.No.528 of 1984) challenged the common judgment and decree in A.S.No.47 of 1990 and 46 of 1990 respectively. Both the appeals were dismissed. S.A.No.4 of 1994 arises from the judgment and decree in A.S.No.47 of 1990 and S.A.No.5 of 1994 arises from the judgment and decree in A.S.No.46 of 1990. 3. The following substantial questions of law arise for a decision in these appeals: (i) Whether on the evidence on record the courts below were justified in declaring the title and possession claimed by the plaintiff in O.S.No.519 of 1984 and granting recovery of possession? (ii) Whether courts below were justified in rejecting the declaration of title and possession claimed by the defendant (as plaintiff in O.S.No.528 of 1984)? 4. It is contended by the learned counsel for defendant (plaintiff in O.S.No.528 of 1984) that the entitlement of the plaintiff at the most is only for 36.100 cents as found by the courts below and that the 6.250 cents along with . SA Nos.4 & 5 of 1995 5 650 square links lying on the further south of the said 36.100 cents (marked in Ext.C2 as plot Nos.2 and 3 respectively) is in the possession of the defendant as evidenced by Ext.B1 as well as the oral evidence of DWs 1 to 5. Learned counsel contended that in respect of the said pieces of land, plaintiff has no right even under Ext.A1. Learned counsel contended that assuming that Ext.B1 is not acceptable for whatever reason, the title of Vijayabhavanath Krishnan Unnithan over 6.250 cents and .650 square links is conveyed to the defendant as per sale deed No.1795 of 1997 dated 9.6.1997 which is produced in these appeals along with C.M.P.No.1858 of 1997. Learned counsel requested that the said document be received as additional evidence. Counsel for the plaintiff in O.S.No.519 of 1984 (defendant in O.S.No.528 of 1984) supported the concurrent findings entered by the courts below. 5. Ext.A1, the purchase certificate dated 20.8.1976 is not under challenge. It refers to 31 cents in survey No.16549 and lying within the four boundaries first above stated. It is not disputed that the said property was taken on lease by the plaintiff in O.S.No.519 of 1984 from Vijayabhavanath Krishnan Unnithan (DW3). Going by Ext.C2 series, the present extent of the said land is 36.100 cents including 'vadavuvasi' in the survey sub-division. Defendant (plaintiff in O.S.No.528 of 1984) has presently no claim over said 36.100 cents (plot No.1 in Ext.C2). The dispute now is only regarding the property lying on the south of said 36.100 cents (ie. plot Nos.2 and 3 in Ext.C2) and bounded by SA Nos.4 & 5 of 1995 6 Sasthamcotta-Karunagappally road on the south. So far as the plaintiff in O.S.No.519 of 1984 is concerned, the said property is not scheduled in the plaint and the learned Munisff has granted relief to the plaintiff only in respect of the 36.100 cents. No counter claim is also made in O.S.No.528 of 1984 claiming title over plot Nos.2 and 3 in Ext.C2. The suit (O.S.No.528 of 1984) is merely resisted on the claim of possession. 6. Though in the schedule in O.S.No.528 of 1984 the total extent stated is six cents in survey No.16549 and 5.912 cents on its further south, the dispute now is only regarding the property on the south of the 36.100 cents (ie., plots marked as 2 and 3 in Ext.C2). According to the defendant, he got possession of the said property (hereinafter referred as the disputed property) from DW3 and while so, Ext.B1 was executed. It is in respect of the said property that DW3 is said to have executed sale deed No.1795 of 1997 dated 9.6.1997. But that sale deed was executed only during the pendency of the suit. Plaintiff (defendant in O.S.No.528 of 1984) did not have an opportunity to challenge the validity and binding nature of the said sale deed. Since that document is executed concededly in the course of the litigation, the rights of the defendant (plaintiff in O.S.No.528 of 1984) has to be decided as on the date of the suit. SA Nos.4 & 5 of 1995 7 7. So far as Ext.B1 dated 1.10.1984 is concerned, it states that DW3 had transferred possession of the disputed property to the defendant (plaintiff in O.S.No.528 of 1984) even three years before the said document. But, it is pertinent to note that Ext.B1 is executed a few days before the defendant filed O.S.No.528 of 1984 on 25.10.1984. (O.S.No.519 of 1984 was filed on 20.10.1984). Ext.B2 is the receipt for payment of revenue for six cents in survey No.16549 for the period from 1969 onwards but, that receipt is dated 16.10.1984. In other words, Exts.B1 and B2 came into existence just a few days before the parties filed the respective suits and certainly after the dispute between them arose. 8. Now I shall refer to the oral evidence adduced by the parties as to the possession of the disputed property. Plaintiff in O.S.No.519 of 1984 gave evidence as PW1. He examined Pws2 to 4 who is supported him as to the possession of the disputed property. PWs 2 to 4 claimed to be the persons residing and owning land nearby the disputed property. PW5 is the advocate commissioner. Defendant (plaintiff in O.S.No.528 of 1984) gave contra evidence as DW1. He examined the predecessor-in-interest as DW3 who supported him. DWs 2 and 6 are witnesses who supported the case of the defendant as to the possession of the disputed property. DWs 4 and 5 are the surveyors who prepared Exts.C1 and C2, plans. SA Nos.4 & 5 of 1995 8 9. As regards the oral evidence, both sides have examined witnesses in support of their case of possession of the disputed property. DW3, predecessor-in-interest of both parties, though stated in chief examination that the lease in favour of the plaintiff in O.S.No.519 of 1984 is in respect of 31 cents towards the northern portion of the entire property belonging to him and that the disputed property on the south was assigned to the defendant as per Ext.B1 and further that he had given possession of the disputed property to the defendant three years before execution of Ext.B1, stated in cross examination that the entire property on the north of Sasthamcotta-Karunagappally road was given on lease to the plaintiff and that after such lease, he had no possession of any land adjoining the portion demised to the plaintiff. True, he then stated that he had no possession of 31 cents (after the lease) but the statement of DW3 in cross examination is consistent with the case of the plaintiff that he is in possession of the entire land upto the road on the southern side. PW5, the commissioner has stated that the disputed land is waterlogged area and it lay contiguous with the 36.100 cents referred to in Ext.C2 and marked by the surveyor as plot No.1, with the road on the extreme south and that the road is separated with the disputed property by a granite retaining wall. The report of the advocate commissioner (PW5) that the disputed property lies contiguous with the 36.100 cents admittedly belonging to the plaintiff is consistent with the case of the plaintiff that he is in possession of the entire property including the SA Nos.4 & 5 of 1995 9 disputed portion. Though DW3 stated that he had demised the entire property belonging to him and upto the road on the south and that after such lease he was not in possession of any land adjoining the land thus leased out, what is stated in Ext.B1 is that three years prior to that document defendant was put in possession of the disputed property. 10. It is contended by the learned counsel for the defendant that the disputed property was waterlogged at the time of inspection by the advocate commissioner and hence, the observation of the advocate commissioner that the disputed property was lying contiguous with the 36.100 cents belonging to the plaintiff in O.S.No.519 of 1984 cannot be accepted. I am not impressed by that contention since the advocate commissioner inspected the properties in February followed by a further visit in October. Assuming that there was any boundary between the 36.100 cents admittedly belonging to the plaintiff and the disputed property on its south, it was upto the defendant to prove the same. In none of the inspections PW5, the advocate commissioner noticed any boundary between the 36.100 and the disputed property on its south. On the facts, circumstances, and evidence the courts below are right in concluding that the disputed property (marked as plots 2 and 3 in Ext.C2) is in the possession of the plaintiff in O.S.No.519 of 1984. I do not also find anything illegal in the finding entered by the courts below as to the acceptability of Ext.B1. Therefore, based on Ext.B1 the defendant (plaintiff in O.S.No.528 of 1984) is not SA Nos.4 & 5 of 1995 10 entitled to get any declaration of title over the disputed property but, the question whether the defendant (plaintiff in O.S.No.528 of 1984) has acquired any title over the disputed property (plots 2 and 3 in Ext.C2) as per assignment deed No.1795 of 1997 dated 9.6.1997 is left open for decision in case the defendant (plaintiff in O.S.No.528 of 1984) initiated appropriate proceedings based on that assignment deed, as the plaint schedule in O.S.No.519 of 1984 does not take in the disputed property and no counter claim is also made over that property in O.S.No.528 of 1984. It is made clear that in case any suit is laid basing on the said assignment deed, it will be open to the plaintiff in O.S.No.519 of 1984 to raise all contentions as are available to him. Resultantly, these appeals fail and are accordingly dismissed with the observations contained in paragraph 10 above as to the right if any of the defendant in O.S.No.519 of 1984 to institute fresh proceeding based on the assignment deed No.1795 of 1997 dated 9.6.1997. No costs. THOMAS P.JOSEPH, Judge. cks SA Nos.4 & 5 of 1995 11 Thomas P.Joseph, J. S.A.Nos.4 and 5 of 1995 JUDGMENT 13th march, 2009.