IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 SA.No. 142 of 2000(A) ------------------------------- AS.114/1998 of PRINCIPAL SUB COURT,ALAPPUZHA OS.970/1992 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS 1, 2 AND 3: -------------------------------------------------------------------------------- 1. K. RAJAPPAN, KUTTIPPOLLAYIL HOUSE, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, ALAPPUZHA. 2. RETNAMMA, W/O.RAJAPPAN, KUTTIPPOLLAYIL HOUSE, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, ALAPPUZHA. 3. SHEELA, D/O.RAJAPPAN, KUTTIPOLLAYIL HOUSE, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, ALAPPUZHA. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/RESPONDENTS/PLAINTIFFS AND 3RD DEFENDANT: ---------------------------------------------------------------------------------------------------- 1. SUDHAKARAN, S/O.KANKALL, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 2. KAMALAKSHI, W/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 3. USHA, D/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 4. ROSHINI, D/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 5. REVAMMA, D/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. SA.No. 142 of 2000(A) 6. SARASAMMA, D/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 7. PRAKASAN, S/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 8. UTHAMAN, S/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 9. INDU, D/O.SUDHAKARAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. 10. SABU, S/O.RAJAPPAN, KUTTIPPOLLAYIL, KANJIRAMCHIRA MURI, ARYAD SOUTH VILLAGE, AMBALAPPUZHA. BY ADV. SRI.M.V.MATHEW, SRI.J. RAVEENDRANATHAN NAIR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2010, ALONG WITH SA NO.143 OF 2000, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos.142 & 143 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010. JUDGMENT The defendants in O.S. 970 of 1992 before the Munsiff's court, Alappuzha are the appellants in S.A.142 of 2000. The plaintiff in O.S. 790 of 1992 is the appellant in S.A. 143 of 2000. O.S. 970 of 1992 was decreed and O.S. 790 of 1992 was dismissed. The parties and facts are hereinafter referred to as they are available in O.S. 970 of 1992 as that was treated as the leading case before the trial court. 2. O.S. 970 of 1992 was a suit for declaration, eviction and recovery of possession filed by the respondents herein. O.S. 790 of 1992 was a suit filed by the appellant for injunction simplicitor. Referring to the facts in O.S. 970 of 1992, the plaint allegations are that the plaint schedule item No.1 having an extent of 11 cents is comprised in Sy. No.388/1 of Aryad South Village. The property was assigned in the name of S.A. 142 & 143/2000. 2 Kankali, the father of the first plaintiff. As per a Will the property came to vests with plaintiffs 1 to 4. According to the plaintiffs there were three kudikidappukars in the property including the first defendant. He had applied for purchase of kudikidappu as O.A. 26 of 1985 before the Land Tribunal, Alappuzha. That application was allowed and he was allowed to purchase one cent of land as per the Kerala Land Reforms Act as kudikidappu. It is pointed out by the plaintiffs that prior to the said application, he had earlier filed O.A. 483 of 1976 before the same Tribunal and one cent was granted to him as kudikidappu. That was measured and demarcated. Meanwhile against the order in O.A.26 of 1985, the first defendant approached the appellate authority as per A.A. 4 of 1987. The appellate authority set aside the order of the Land Tribunal and remanded to the Land Tribunal for fresh consideration. While the case stood thus, the first plaintiff filed O.S.12 of 1988 before the Additional Munsiff's Court, Alappuzha for demarcation of one cent of property as kudikidappu. It so happened that after S.A. 142 & 143/2000. 3 remand, the first defendant withdrew O.A. 26 of 1985 and consequently the suit was dismissed. According to the plaintiffs, the defendants are residing in plaint item No.2. They have no manner of right over the rest of the property. According to the plaintiffs, the defendants are bound to vacate plaint item No.2 and hand over possession to the plaintiffs. On the basis of the above allegations, the suit was laid. 3. Defendants 1, 2 and 4 contested the suit. They contended that the plaint schedule property does not belong to the plaintiffs. It is the Government puramboke land, which is in the occupation of the defendants. These defendants denied that the first defendant had filed O.A. 483 of 1976 and according to them, that is stage managed by the plaintiffs themselves to defeat the claims of the first defendant. The defendants have no knowledge about the said application and they are unaware of the same. Under the mistaken belief that the first defendant was occupying the property owned by the first plaintiff, he instituted O.A. S.A. 142 & 143/2000. 4 26 of 1985 for purchase of kudikidappu. The survey number shown in the application was 388/3. But later it turned out to be that the property, in which the first defendant was residing as kudikidappukaran, was in survey No. 388/1. In O.A. 26 of 1985, accepting the revenue inspector's report, the first defendant was allowed to purchase one cent of land as kudikidappu. The matter was taken in appeal by him. The appellate court set aside the order and remanded it back to the Land Tribunal for fresh consideration. In the meanwhile, the plaintiffs had instituted O.S. 12 of 1988 seeking to have the one cent granted as kudikidappu measured and demarcated. However, after remand, since it was found that the real survey number of the property over which the first defendant lays claim is 388/1 and that is Government puramboke, the application was not pursued before the Land Tribunal. The suit O.S.12 of 1988 came to be dismissed. According to these defendants, they are in occupation of 9 cents in Sy. No.388/1/1 for the last 40 years and they had preferential right for assignment. These S.A. 142 & 143/2000. 5 defendants are occupying puramboke land and the plaintiffs have no manner of right over the suit property. Therefore they are not entitled to any relief. 4. The first defendant in turn laid O.S. 790 of 1992 against the plaintiffs in the above case seeking injunction on the basis of the allegations almost similar to the contentions in the written statement in O.S. 970 of 1992. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A11 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and had Exts. B1 to B8 marked. Exts. C1 to C4 are the commission report, mahazar, plan etc. 6. On an appreciation of the evidence in the case, the trial court came to the conclusion that the appellants have not been able to establish their rights over the property involved in the proceedings and therefore decreed the suit against them and dismissed their suit. Though the S.A. 142 & 143/2000. 6 appellants carried the matters in appeal, the exercise turned out to be futile. 7. The following questions of law are raised in this appeal for consideration: “a) Whether the courts below was right in granting a declaration of title without the title of the property being produced by the plaintiff. b) Whether the courts below was right in treating Will executed by the father of plaintiff as title deed especially when the description of the plaint schedule property in this will varies from identification made by commissioner. c) Whether the court below erred in holding tat the documents prepared by the commissioner in this case has more probative value than the documents prepared by the commissioner in O.S. 12 of 1988 without evidence on the same.” 8. At the time when the appeals were taken up for hearing, it was found that some of the documents were not available. On enquiry it was found that they had been destroyed by the trial court. However counsel on both sides S.A. 142 & 143/2000. 7 made available photostat copies of the documents for perusal of this court. 9. Learned counsel appearing for the appellants pointed out that the court below have not understood the case put forward by the parties and have gone to misconception that the appellants almost admit that they are in occupation of the land over which the plaintiffs have right. Learned counsel drew the attention of this court that the assertion of the plaintiffs in O.S. 970 of 1992 that they obtained 11 cents of puramboke land is not disputed by the appellant. But the issue was where exactly that 11 cents is to be located. Learned counsel brought to the notice of this court that admittedly the property over which both lay claim is comprised in 388/1. It is a puramboke land. It has a vast extent of nearly 56 cents. There was no attempt from the side of the courts to ascertain as to whether exactly 11 cents claimed by the plaintiffs lie. The evidence is to the effect, according to learned counsel, that the appellants have been found to be residing in the property for a long S.A. 142 & 143/2000. 8 time and under such circumstances the lower courts could not have held that they have no manner of right. It is also contended that there is nothing to show that the plaintiffs in O.S. 970 of 1992 had to accommodate three kudikidappukars. There is no evidence regarding that aspect. Counsel would point out that that was a deliberate ploy employed by the plaintiffs to defeat the larger claim of the appellants. At any rate, according to learned counsel, without locating the 11 cents claimed by the plaintiffs, the courts below could not have granted a decree in their favour. 10. Learned counsel appearing for the respondents on the other hand pointed out that the evidence is clear to the effect that the appellants were occupying the 11 cents assigned to the predecessor in interest of the plaintiffs and which was acquired by the plaintiffs as per the Will executed by their predecessor in interest. It was for the appellants to show the right based on which they lay claim to the suit property. Having failed to do S.A. 142 & 143/2000. 9 so, they are not entitled to any relief. In other words, learned counsel points out that there are no grounds made out to interfere with the judgments and decrees of the courts below. 11. It is an admitted fact that the appellants are kudikidappukars under the respondents. From the records, it is seen that the first appellant is said to have instituted O.A. 486 of 1976 before the Land Tribunal, Alappuzha and the land Tribunal disposed of the application granting one cent to him as kudikidappu. The appellants would stoutly deny that such an application was ever made by them and according to them it is a fraud played by the plaintiffs to defeat their claims. However, it is admitted by the appellants that they have filed O.A. 26 of 1985 against the plaintiffs claiming kudikidappu. They say that they were under the bonafide belief that the property which was being occupied by them was in Sy. No.388/3. The records indicate that in O.A. 26 of 1985 the appellants were granted one cent as kudikidappu since the Land Tribunal was given to S.A. 142 & 143/2000. 10 understand that there were three kudikidappukars in the property. 12. The appellants very vehemently submitted that though the finding of the Land Tribunal was that there were three kudikidappukars, no details whatsoever are available in this regard. According to learned counsel for the appellants there is nothing to show that the plaintiffs' claim is true. However, adjudication of this issue is neither warranted at this point of time nor is this court competent to do so. That is a matter to be determined by the Land Tribunal concerned. 13. Coming back to the facts of the case, aggrieved by the order granting assignment of one cent, the appellant went in appeal against that order. In the meanwhile, taking aid of the order of the Land Tribunal in O.A. 26 of 1985, the plaintiffs approached the Munsiff's court for measurement and demarcation of one cent assigned by the Land Tribunal to the appellant. A commissioner was deputed from the court to locate the said portion. The S.A. 142 & 143/2000. 11 commissioner filed a report that Sy. No. of the property is 388/1 and not 388/3. The Commissioner also reported that the property in Sy. No.388/1 is puramboke property. In the light of this revelation, the appellants herein chose to withdraw O.A. 26 of 1985 because they found that they were not occupying the property owned and possessed by the plaintiffs, but they were in the puramboke property. 14. They lay claim to 9 cents of land in Sy. No.388/1. According to them the plaintiffs have no manner of right whatsoever in the property now in their possession. They actually did not dispute the claim of the plaintiffs that their predecessor in interest got assignment of 11 cents of property. But their only dispute is that the 11 cents assigned in favour of the predecessor in interest of the plaintiffs does not take in any portion of the property occupied and owned by them. 15. The plaintiffs in O.S. 970 of 1992 on the other hand would say that the appellants are occupying a portion of the property assigned to them. S.A. 142 & 143/2000. 12 16. The courts below accepted the case of the plaintiffs in O.S.970 of 1992. The question that arises for consideration is whether the lower courts were justified. 17. After going through the records and hearing learned counsel on either side, it is seen that both the courts below have grievously erred in their approach and conclusion. 18. It may be immediately noticed that even though the plaintiffs in O.S.970 of 1992 claim that 11 cents were assigned to their predecessor in interest, they have not produced the assignment deed. Instead, they produced the Will executed by their father bequeathing the property to them. Property was sought to be identified on the basis of the recital in the will. As rightly pointed out by the learned counsel for the appellant, that approach does not appear to be correct. Even assuming that the plaintiffs in O.S. 970 of 1992 did not have the original assignment document with them, nothing prevented them from having the document produced by the authority concerned to establish the S.A. 142 & 143/2000. 13 identity of the property which was assigned to them. Both the courts simply go on to say that the appellants had failed to establish any right over the suit property and they should fail. The real issue involved was regarding the identity of the property. Both the courts below have came to the conclusion that the property claimed by both sides is identical one. 19. From the records, it does not appear to be so. Ext.B1 is the mahazar which shows that one cent initially granted to the appellant as kudikidappu by the Land Tribunal was located to be situated in Sy. No. 388/1. The evidence shows that the property comprised in Sy. No.388/1 is puramboke property. Ext.B3 may be of some relevance in the present context. That is the judgment in O.S. 12 of 1988, which was filed by the first respondent herein against the first appellant. The suit was one for fixation of boundary and for perpetual injunction. The finding in Ext.B3 is that the plaintiff has not been able to prove his title to the property claimed by him in Sy. No.388/1. S.A. 142 & 143/2000. 14 20. In fact the appellants do not know if the plaintiff in O.S. 970 of 1992 have any property in Sy. No.388/1. According to them, may be that the predecessor in interest of the plaintiffs have been assigned property in Sy. No.388/1. But their contention is that that property is not the property occupied by the appellants. 21. It appears that a commission has been taken out in O.S. 790 of 1992 to note various aspects. A reference to that report may be useful. In paragraph 3 of the report the house and the surroundings occupied by the appellant and his family is described in detail. What is significant is that on the eastern side from north to west, and on the north towards east-west there is a well laid fence. On the eastern side of the eastern fence is the Alappuzha-Kattoor road. One must remember that the plaint schedule referred to in Ext.C4 is the plaint schedule in O.S. 790 of 1992. In paragraph 7 the commissioner has reported that some portions of the property comprised in Sy. No. 388/1 lies on the western side and some portion lies on the eastern side S.A. 142 & 143/2000. 15 of Alappuzha-Kattoor road. It appears that the plaintiffs in O.S. 970 of 1992 had shown the Will to the Commissioner. The commissioner has stated that going by the recitals in the Will, the plaintiffs have rights over 52 cents in Sy. No.388/3 and 11 cents in Sy. No.388/1, then they have a total extent of 63 cents. The commissioner in his report has extracted the boundaries shown in the Will. That does not tally with the boundaries at site. According to the commissioner, the total extent of property in Sy. No.388/1 is 56 cents. The Commissioner also mentions that going by the Will, there is no road on the eastern side of the defendant's property in O.S. 790 of 1992. The definite finding of the commissioner that it is not possible to say whether the property claimed on the basis of the Will by the plaintiffs in O.S. 970 of 1992 is the property claimed by the defendants in the said suit. The report also discloses that on the northern and eastern side of the property occupied by the appellants, there is a well laid fencing. The report in detail gives various structures found in the property in the S.A. 142 & 143/2000. 16 possession of the appellants. Commissioner has noticed that the house occupied by the appellants is situate in Sy. No.388/1-2. Commissioner has also noticed on the western side of the property possessed by the appellant, there is a thodu. It is also mentioned in the report that the property in Sy. No.388/1 extends beyond that thodu also. That is also puramboke land. Further west is the property comprised in Sy. No.387/13. Various other details were also given, which are not very relevant for the present purpose. 22. Going by the commission report referred to above, it is very evident that it cannot be conclusively said that the property occupied by the appellant is the property assigned to the respondents in these appeals. The commissioner has noticed that on either side of Alappuzha- Kattoor road there are lands comprised in Sy.No.388/1. It is significant to notice that the property now located by the commissioner is on the western side of the road. It is possible that the assignment of atleast a portion of the property said to have been assigned to the predecessor in S.A. 142 & 143/2000. 17 interest of the plaintiffs in O.S.970 of 1992 could be on the eastern side of the road. That possibility cannot be ruled out. Under such circumstances, the courts below were not justified in coming to the conclusion that the property involved in both the suits is the same and the plaintiffs in O.S. 970 of 1992 have absolute rights over the same. 23. One may at once refer to the evidence of P.W.1. He says that his claim is based on Ext.A1 Will. He speaks about the various documents produced by him. It is admitted by him that the land comprised in Sy. No.388/1 is a puramboke land and also that the appellants reside therein. Pointed question was put to him whether he has any objection to the report and mahazar filed by the commissioner. The reply was that he understood the contents therein and he has no objection to any of the statements contained therein. He candidly admits that the statements in the report that the appellants, who are the plaintiffs in O.S. 790 of 1992, are residing in the plaint schedule property in O.S. 970 of 1992 is correct. He says S.A. 142 & 143/2000. 18 that he does not know the point of time at which his predecessor in interest got assignment of the property comprised in Sy. No.388/1. He then takes objection to the commission report as regards the boundaries mentioned by him. However, he admits that on the northern and eastern sides of the property occupied by the appellant herein, there is fencing. P.W.1 says that he has property on the western side of Alappuzha-Kattoor road. But he is unable to say the extent and survey number of the property. He says that Alappuzha-Kattoor road cuts through the property in Sy. No. 388/3. 24. The said claim of P.W.1 does not appear to be correct in the light of Ext.C4 report filed by the Commissioner. Whatever that be, there is infact a bonafide dispute regarding the identity of the property claimed by both the parties. Going by the commission report, one has to ascertain the property said to have been obtained by the predecessor in interest of the plaintiffs as well the property claimed by the plaintiff in O.S. 790 of 1992. Without S.A. 142 & 143/2000. 19 properly identifying the property, it will not be possible for the court to grant decree in O.S. 970 of 1992. 25. It is felt that a reconsideration of the entire matter is necessary at the hands of the trial court in order to do justice to the parties. In the result these appeals are allowed, judgments and decrees are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 18.8.2010. They shall be permitted to adduce further evidence if they so choose. The trial court shall make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of the parties. There will be no order as to costs. Office of this court shall re-transmit the records forthwith. P. BHAVADASAN, JUDGE sb.