IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 SA.No. 694 of 1996(G) --------------------- AS.36/1992 of SUB COURT, QUILANDY OS.336/1988 of MUNSIFF COURT, QUILANDY .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------------- KALLADA PARAYAMUNDAKKAL NARAYANAN ALIAS BALAN NAIR S/O MADHAVI AMMA, AGED 46 YEARS MERCHANT, VELOOR AMSOM DESOM QUILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SMT.M.R.SREELATHA RESPONDENT/2ND RESPONDENT/2ND DEFENDANT ------------------------------------------------------------------ KUNNUMMAL MADHAVAN S/O MULLAN, PUTHUVANDIYIL HOUSE, GRANITE WORKER, VELOOR AMSOM DESOM QUILANDY TALUK, KOZHIKODE DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 1478 OF 1996 IN S.A. NO. 694 OF 1996 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 30.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- S.A.No. 694 of 1996 ---------------------------------------- Dated this the 30th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 36/1992 on the file of the Sub court, Koyilandy which arises from the judgment and decree in O.S. No. 336/1988 on the file of the Munsiff's Court, Koyilandy. The sole plaintiff in the suit is the appellant herein. The suit filed for permanent prohibitory injunction was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence the second appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. It is the plaintiff's case that the plaint schedule property is having an extent of 65 Cents scheduled to the plaint and the same is in the possession of the plaintiff. the plaint schedule property is a portion of a property called Neduvappara and that the plaint schedule property is situated on the northern portion of Kalladaparamba which belongs to the plaintiff. Admittedly the plaint schedule property originally belonged to Kunnummal Olayatt Naduvilakkandy tarwad (hereinafter referred to as the tarwad) in jenm . Considering the long possession and enjoyment of the property as a lessee, the plaintiff applied for purchase certificate before the Land Tribunal Balussery. The Land Tribunal held that the plaintiff is a cultivating tenant and is entitled to fixity of tenure and consequently S.A. 694 of 1996 -2- issued Ext.A1 purchase certificate dated 28.2.1977. The Karanavar of the tarwad has filed an appeal against the order of the Land Tribunal before the Appellate Authority as A.A. 623/1977 and the same was dismissed on 31.7.1978 confirming the order passed by the Land Tribunal. It is also submitted by the plaintiff that he is paying Land Revenue for the plaint schedule property. According to the Karanavar the entire tarwad including the plaint schedule property is called as Neduvappara and the plaintiff is trying to trespass upon that property. So the Karanavar of the tarwad filed O.S. No. 245/1980 against the plaintiff herein for permanent prohibitory injunction restraining the plaintiff from trespassing into the plaint schedule property and that suit was dismissed on 13.7.1983 upholding the contentions of defendant who is the plaintiff herein. The Civil court in that suit held that the karanavar of the tarwad has no possession or right over the disputed property(plaint schedule property) Subsequently the plaintiff has entered into an agreement with the 2nd defendant regarding blasting of rocks from the plaint schedule property . According to the plaintiff, the 1st defendant is having property which is also called Neduvappara which is situated away from the plaint schedule property and he has also entered into an agreement with the 2nd defendant to blast rocks from his property. The 2nd defendant has not paid the entire amount to the plaintiff as stipulated in the agreement. So the plaintiff filed suit as O.S. No. 161/1988 against the 2nd defendant for realisation of the amount due to the plaintiff from 2nd defendant. Due to the institution of O.S. No. 161/1988 the 2nd defendant is in enemical terms with the S.A. 694 of 1996 -3- plaintiff. After raising a false claim that the plaint schedule property belongs to the 1st defendant, the 2nd defendant along with 1st defendant and their henchmen trespassed upon the plaint schedule property and took measurements of the rocks situated in the plaint schedule property in order to blast it. On the apprehension that the defendants and their henchmen may trespass upon the plaint schedule property and blast rocks, the plaintiff filed the suit for permanent prohibitory injunction. 3. The 1st defendant opposed the plaintiff's claim and contended that the plaint schedule property belongs to the tarwad in jenm He denied the tenancy right of the plaintiff. According to him the order of the Land Tribunal and the order the Appellate Authority are the result of fraud practised by the plaintiff and Kunjukrishanan Nair who is one of the senior most member of the tarwad and those orders are not binding upon the tharwad property(Neduvappara). . He also asserted that the revenue receipts produced by the plaintiff does not relate to the plaint schedule property. It is further contended by him that the family members of the tarwad filed O.S. 154/1980 for partition before the Sub court, Vadakara and in that suit, the said court appointed himself and One Chandukutty Nair as the receivers of the property and thus he and the said Chandukutty have taken possession of the property belonging to the tharwad. According to the 1st defendant since he and the Chandukutty Nair were appointed as receivers of the plaint schedule property by the said court, the plaintiff is not entitled for the injunction as prayed for in the suit. S.A. 694 of 1996 -4- 4. The 2nd defendant also filed separate written statement contending interalia that the plaintiff entered into an agreement with himself , that since the 1st defendant has raised objections in blasting the rocks from the plaint schedule property on the basis that the property belongs to the 1st defendant and that since the Sub court, Vadara, appointed the 1st defendant as receiver, he could not start blasting of rock from the plaint schedule property. According to him he suffered loss due to the dispute between the plaintiff and the 1st defendant regarding the ownership of the property.. 5. The evidence in this case consists of oral testimonies of PW1, DWs 1 and 2 and Exts. A1 to A13, B1 to B14. 6. According to the plaintiff he got possession of plaint schedule property as per an oral lease from the karanavar of the tharwad of the 1st defendant, and he obtained purchase certificate from Balussery Land Tribunal. The 1st defendant is a family member of the tharwad. According to the 1st defendant the plaint schedule property was never entrusted with the plaintiff and the property claimed by the plaintiff is a part of the property possessed by his family and that the 1st defendant and one Chandukutty Nair were appointed as receivers by Sub court Vadakara in a suit for partition( O.S. No. 154/1980) filed by family members of the tharwad. 7. In cross examination PW1 admitted that he took the plaint schedule on lease 25 years ago. Since he was a lessee of the property S.A. 694 of 1996 -5- long prior to 1.4.1964 he applied before the Land Tribunal for getting the purchase certificate. The Land tribunal after considering the case of the applicant/plaintiff held that the applicant/plaintiff is a cultivating tenant and is entitled to fixity of tenure under Section 72 B of the Kerala Land Reforms Act and therefore passed orders to assign the land in the name of the applicant/plaintiff. Consequently, the Land Tribunal Balussery issued Ext.A1 purchase certificate dated 28.2.1977. The karanavan of the tarwad being aggrieved by the order of the Land Tribunal filed an appeal as A.A. 623/1977 before the Appellate Authority. That appeal was also ended in dismissal vide order dated 31.7.1978. According to the plaintiff after the dismissal of the above said appeal he continued in possession and enjoyment of the property on the basis of the above purchase certificate . The trial court concluded that as per Section 74 of the K.L.R Act, after the commencement of the said Act no tenancy shall be created in respect of any land and any tenancy created in contravention of the provision of Section 74(1) shall be invalid. 8. The plaintiff also brought to the notice of the trial court that after the dismissal of A.A. 623/1977,the Karanavar filed O.S. 245/1980 against himself alleging that the property is in the possession of the family of 1st defendant and the plaintiff herein and that the plaintiff herein is trying to trespass upon the plaint schedule property. The plaintiff also submitted that the averments in the plaint in O.S. 245/1980 amply reveals that he is in possession and enjoyment of the plaint schedule property. The said suit was dismissed on 1.7.1983 upholding the contentions of the plaintiff herein. S.A. 694 of 1996 -6- So in my view the possession and enjoyment of the plaintiff's property could not successfully agitated by the karanavan (plaintiff) in that suit. In fact the possession and enjoyment of the plaint schedule property by the plaintiff is proved by the oral and documentary evidence. . Ext.A1 to A13 are the documents produced by the plaintiff which includes purchase certificate, certified copy of the judgment in O.A. 14597/1976 Issued by the Appellate Authority (LR) Kozhikode, revenue receipts issued by the Village Officer Veloor, the certified copy of the judgment in O.S. 245/1980 of the Sub Court, Vadakara, and the extract of Jamathiri issued by the Deputy Tahsildar Koyilandy. The trial court also considered the documents produced by the defendants as Exts. B1 to B14 and oral evidence adduced by both sides. 9. On a consideration of the case on merits under facts and law I am unable to agree with the views which were expressed by the trial court and the lower appellate court. In paragraph 12 of the trial court's judgment the learned Munsiff opined that the plaintiff has not pleaded the details of the alleged oral entrustment with the family of the 1st defendant and from whom he obtained the lease, on which year he got the lease of the plaint schedule property and what is the rent prayable etc. The trial court also opined that there is no averment in the plaint to the effect that plaintiff has ever paid rent to the landlord. 10. It is to be noted that as PW1, the plaintiff testified that he took the plaint schedule property on lease 25 years ago. Placing reliance on his deposition the trial court held that the lease may be of the year 1967 S.A. 694 of 1996 -7- and that since he had obtained lease of property after 1.4.1964 , Section 74(1) of the K.L.R. Act cannot be applicable. I have already stated that the plaintiff obtained purchase certificate from the land Tribunal which was confirmed in appeal and thus become final. The only inference that can be drawn from the said circumstances is that the plaintiff obtained Ext.A1 purchase certificate for the plaint schedule property that the same is issued after examining the rival contentions and after entering into the satisfaction that the applicant/plaintiff was a cultivating tenant, entitled to fixity of tenure and got tenancy right on an oral entrustment prior to 1.4.1964. At this juncture a Civil court cannot go into the circumstances that lead to the issuance of the said purchase certificate I am also of the view that the purchase certificate issued by the Land Tribunal is after taking evidence and after hearing the contesting parties. Therefore the reasons stated by the trial court for negativing the contentions of the plaintiff are absolutely out of context and illegal Another reason stated by the trial court for dismissing the claim of the plaintiff is that Ext.A1 purchase certificate does not relate to the plaint schedule property. I failed to understand how a valid purchase certificate issued is rejected by the trial court . The trial court examined the boundaries of the plaint schedule property shown in Ext.B1 with reference to Ext.A1 and concluded that the plaint schedule property is not the property contained in Ext.B1. I am of the view that the reasons stated in paragraph 14 after referring to the boundaries of the property covered by Ext.B1 are sufficient not enough to conclude that Ext.A1 property is the property S.A. 694 of 1996 -8- claimed by the 1st defendant. . Even though Ext.A1 relates to the plaint schedule property, the trial court went wrong in holding that the plaintiff has not succeeded in proving that he is in possession of the plaint schedule property. 11. Exts.A3 to A10 revenue receipts which according to the plaintiff relates to the plaint schedule property. But the trial court's finding to the effect that those revenue receipts does not relate to the plaint schedule property is not correct. The reasons stated for non-suiting the plaintiff are not acceptable. The trial court also gone wrong in dismissing the suit after referring to Exts.A1 to A13. The trial court ought to have noted the dismissal of O.S. No. 245/1980 by the Sub court Vadakara holding that the plaintiff in that suit who is the karanavan has been not in possession of the plaint schedule property The above said facts are also not taken by the trial court in the right perspective and held that the documents produced by the plaintiff will not prove that he is in possession of the plaint schedule property on the date of suit. The further circumstances that the agreement entered into between the plaintiff and the 2nd defendant regarding blasting of rocks in the plaint schedule property and the boundaries of the property covered by Ext.B1 are not considered in the proper perspective. Ext.B1 is dated 10.5.1986 The boundaries of the property covered by Ext.B1 was also misread by the trial court . It is very important to note that the 1st defendant has no case that Exts.A1 to A13 are not documents pertaining to the plaint schedule property . Eventhough the evidence supports the claim of the plaintiff the S.A. 694 of 1996 -9- trial court misread and misunderstood the facts, evidence and circumstances and hence the findings of the trial court cannot stand. 12. In A.S. 36/1992 filed by the plaintiff against the trial court's decree and judgment the lower appellate court without applying its mind agreed with the findings of the trial court and found fault with the plaintiff for not taking out a commission for the identification of the property covered by Ext.A1, A11 and A12. I have already stated that the defendants have not challenged the description of the property and therefore the question of identification of the property does not arise for consideration. Moreover from an analysis of the evidence in this case , the only possible conclusion that can be arrived at in the given circumstances is that all the documents produced by the plaintiff relates to the plaint schedule property In the result this Second appeal is allowed. The judgment and decree passed by the courts below are set aside A decree is passed as prayed for by the plaintiff with costs through out the litigation. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- S.A. No. 694 of 1996 ---------------------------- JUDGMENT 30th July, 2009