IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 SA.No. 607 of 1995() -------------------- AS.27/1991 of SUB COURT, QUILANDY OS.23/1986 of MUNSIFF COURT, PAYYOLI .................... APPELLANT(S): PLAINTIFFS/RESPONDENTS 1 TO 6 ------------------------------------------------------- 1. KARAYATTEE THIRUVANGATH KANNAMBATH AMMUKUTTY AMMA, MANIYUR VILLAGE KARUNTHODI DESOM, VADAKARA TALUK. 2. SANTHA AKKAMMA OF DO. 3. KALLIANI AKKAMMA OF DO. 4. SAROJINI AKKAMMA OF DO. 5. KUMARAN NAMBIAR OF DO. 6. JAYACHANDRAN (MINOR) OF DO. (FIRST APPELLANT IS THE NEXT FRIEND OF MINOR 6TH APPELLANT) BY ADV. SRI.R.PARTHASARATHY SRI.B.KRISHNAN RESPONDENT(S): DEFENDANTS 5 TO 10 & 1 TO 4/APPELLANTS AND RESPONDENTS 7 TO 10. ---------------------------------------------------------------------------- 1. EDAKALUR MEETHAL KALLIANI MANIYUR AMSOM, ELAMBILAD DESOM, KOZHIKODE DISTRICT. 2. SISTER MADHAVI OF DO. 3. SISTER NARAYANI OF DO. 4. BROTHER NARAYANAN OF DO. 5. BROTHER KARUNAKARAN OF DO. 6. BROTHER BALAKRISHNAN OF DO. 7. THIRUVANGATH KUNNAMBATH NARAYANI KUTTY AKKAMMA MANIYUR AMSOM, ELAMBILAD DESOM KOZHIKODE DISTRICT. 8. PADMAVATHI AKKAMMA OF DO. 9. RAGHAVAN NAMBIAR OF DO. (DIED. LRS IMPLEADED) 10. GEETHA OF DO. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 TO R8 SRI.K.CHANDRASEKHARAN SRI.C.VALSALAN FOR R11 TO 13 SRI.K.RAKESH ROSHAN FOR R11 TO 13 R9 DIED. ADDL. RESPONDENTS 11 TO 13 ARE IMPLEADED ------------------------------------------------------------------------- ADDL.R11. SAHENA, VELAM AMSOM, DESOM, P.O. PUTHUKOOL VIA. KAKKAT. R12. RENESH (MINOR) R13. UNAMED CHILD (MINOR) (ADDL.RESPONDENTS R11 TO R13 ARE IMPLEADED AS LRS OF DECEASED 9TH RESPONDENT AS PER ORDER DATED 16.6.2008 ON CMP 2002/1996. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 607 OF 1995 =========================== Dated this the 29th day of January,2010 JUDGMENT Plaintiffs in O.S.23/1986 on the file of Munsiff Court, Payyoli are the appellants. Respondents are the defendants. On the death of nineth respondent, respondents 11 to 13 were impleaded as his legal heirs. Appellants instituted the suit for fixation of boundary and for permanent prohibitory injunction. Plaint schedule property is 7.90 acres in Survey No.38/2 of Maniyur Village. First appellant and seventh respondent, who was the first defendant, are the children of Kunhilakshmi Amma. Case of the appellants is that plaint schedule property was allotted to the share of the thavazhi of Kunhilakshmi Amma under Ext.A1 partition deed dated 24.9.1955 as item No.31 and subsequently the said thavazhi S.A.607/1995 2 with subsequent born children divided the property along with others properties by Ext.A2 partition deed dated 6.3.1964 and as item No.6 of the D schedule therein plaint schedule property was allotted to the share of the appellants and respondents 7 to 10 and they have been in possession and enjoyment of the property and respondents 1 to 6 who were defendants 5 to 10 have no manner of right or possession of the same and they attempted to trespass into the property and therefore boundary of the plaint schedule property is to be fixed and respondents 1 to 6 are to be restrained by a permanent prohibitory injunction from trespassing into the property. Respondents 1 to 6 filed a written statement contending that the property described in the written statement was obtained by Choyi their predecessor under Ext.B1 unregistered kuzhikanam deed from Kunhilakshmi Amma and he executed Ext.B2 marupattom deed in favour of Kunhilakshmi Amma and since then Choyi S.A.607/1995 3 has been in possession of the property and on his death his right devolved upon respondents 1 to 6. It is also contended that under Ext.B3 assignment deed dated 20.9.1962 (Ext.A8 being its registration copy) Choyi has purchased the property covered by the said sale deed from Narayana Kurup who in turn got the property from Narayanan Nambiar and since then the properties covered under B1 to B3 were in the possession of Choyi and subsequent to the death of Choyi, it is in the possession of respondents 1 to 6 and appellants have no right or possession over the said property. It is also contended that plaint schedule property is not the property claimed by appellants and there is a specific boundary to separate the property of the appellants and the respondents 1 to 6 and the order of Land Tribunal dropping the suo motu proceedings is not binding on respondents 1 to 6 and they are filing an appeal against that order and the suit is barred by limitation, as S.A.607/1995 4 respondents 1 to 6 have been in possession of the property for more than twenty years and hence the suit is to be dismissed. 2. A Commissioner was appointed to identify the properties and the Commissioner submitted Ext.C2 report and C1 plan. When it was remitted back to the Commissioner he submitted Ext.C4 plan and C5 report. Subsequently the report and plan were again remitted to the Commissioner and the Commissioner submitted Exts.C7 report and C6 plan. The husband of the first appellant was examined as PW1 and fifth respondent was examined as DW1. A witness on their behalf was also examined as DW2. Exts.A1 to A9 were marked on the side of appellants and Exts.B1 to B16 on the side of respondents 1 to 6. On the evidence, learned Munsiff found that plaint schedule property is plots C, B and A2 as shown by the Commissioner in Ext.C6 plan and plots A1, A3 and A4 is the property obtained by Choyi under Ext.A8 assignment deed from S.A.607/1995 5 Narayana Kurup, who in turn had obtained it under Ext.A7. Learned Munsiff also found that Exts.B1 were not proved to be executed by Kunhilakshmi Amma and there is no evidence to prove that there was a lease as claimed by respondents 1 to 6 or that they have been in possession of that property and granted a decree permitting appellants to put up boundary on a e line marked in Ext.C6 plan separating the property of appellants and respondents 1 to 4 finding that the disputed plots B and A2 belong to the appellants along with the undisputed plot C, under Exts.A1 and A2. 3. Respondents 1 to 6 challenged that decree and judgment before Sub court, Quilandy in A.S.27/1991. Learned Sub Judge on reappreciation of evidence found that the suit being one for putting up the boundary and for injunction, burden is on the appellants to establish the identity of the property, title and possession of the property. Learned Sub Judge also found that though S.A.607/1995 6 under Exts.A1 and A2 appellants have title to the property covered thereunder, as side measurements are not given in Exts.A1 and A2, the property cannot be identified and therefore the identification made by Commissioner in Ext.C6 plan cannot be accepted. Learned Sub Judge also found that appellants have failed to establish that plots A2 and B in Ext.C6 plan form part of the property obtained by them under Ext.A1 and A2 partition deeds and as they failed to establish their title as well as possession, they are not entitled to the decree granted by the trial court. Appeal was allowed and the northern boundary of plot C namely c-d line was fixed as the boundary of appellants property as there was no dispute with regard to plot C. Plaintiffs arechallenging the decree and judgment in this appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1. In a suit for fixation of S.A.607/1995 7 boundary and consequential relief of injunction, when the contesting defendants claimed under a lease from the plaintiffs predecessor-in- interest, does not the burden shift to the defendants to show exactly where the property claimed under the lease exists since otherwise plaintiffs title is admitted by the defendants. 2. Is not the lower appellate court wrong in holding that an unregistered lease is admissible in evidence though not for claiming tenancy but for proving the nature of possession of the property. 3. Has not the lower appellate S.A.607/1995 8 court overlooked the fact that the property claimed by the contesting defendants under Exts.B1 to B3 overlap each other and it is a sure circumstance to show that Ext.B1 and B2 were executed with a view to set up rights in future on other portions of the property, without the knowledge and consent of the plaintiffs predecessor. 4. Is not the contention of defendants barred by resjudicata, in view of Ext.A6 proceedings of the Land Tribunal. 5. Learned counsel appearing for the appellants and contesting respondents 1 to 6 were heard. 6. Appellants are claiming right, title and S.A.607/1995 9 possession to the plaint schedule property under Exts.A1 and A2. Under Ext.A1 partition deed,property described in as item No.31 was allotted to the first appellant seventh respondent, appellants 2 and 3 and Janu the deceased daughter of seventh respondent and Kunhilakshmi Amma, the mother of first appellants. Subsequently under Ext.A2 partition deed, the very same property was allotted to the share of appellants and respondents as item No.6 of D schedule property. According to the appellants, item No.6 of D schedule to Ext.A2 partition deed, which is item No.31 of Ext.A1 partition deed is the plaint schedule property and hence they have title to the property. Respondents 1 to 6 are not disputing the title of appellants to the property allotted to the share of the thavazhi of first appellant under Exts.A1 and A2. On the other hand, it is their case that the property claimed by them under Ext.B1 and B2 is the one allotted to the S.A.607/1995 10 thavazhi of Kunhilakshmi Amma, the mother of first appellant. Their case is that Kunhilakshmi Amma had granted a lease of the property covered by Exts.B1 and B2, in favour of Choyi and on the death of Choyi, that right devolved on respondents 1 to 6. Exts.B1 and B2 show that the right allegedly granted by Kunhilakshmi Amma therein is the right obtained by her thavazhy under Ext.A1. Respondents 1 to 6 also contended that the property covered by Ext.A7 obtained by Narayana Kurup from Narayanan Nambiar which was purchased by Choyi under Ext.A8 from Narayana Kurup and the property covered by Exts.B1 and B2 were together in the possession of Choyi and subsequent to his death, it devolved on them. Therefore the title of appellants to the property covered under Exts.A1 and A2 is admitted by respondents 1 to 6 also, though they are claiming a further right under Kunhilakshmi Amma. They only contended that Kunhilakshmi Amma, the karnavathi of thavazhi granted a lease of that S.A.607/1995 11 property in favour of Choyi and therefore appellants have no right or title to that property. 7. The Commissioner in Ext.C6 plan identified the property allotted to the thavazhi of Kunhilakshmi Amma as item No.31 of Ext.A1 partition deed, which is item No.6 of D schedule to Ext.A2 partition deed which are plots A2, B and C. The property obtained by Choyi under Ext.A8, which in turn is the property obtained by the assignor Narayana Kurup under Ext.A7 was identified as plots A1, A3 and A4. Ext.C7 report shows that the Commissioner identified the property covered under Exts.A7 and A8, with reference to the northern boundary, which is covered by Ext.A9 sale deed. Ext.A9 shows that the property covered thereunder is lying to the south and east of two desoms viz Kurunthody desom and Muduvane desom and based on that identification Commissioner identified plot D as, the property covered by Ext.A9. There was no dispute with regard to the identification of S.A.607/1995 12 plot D. On identifying plot D, Commissioner identified the property which lies to its south as the property covered under Ext.A8. Appellants are not disputing the right of respondents 1 to 6 over plot A1, A3 and A4. Though respondents 1 to 6 had shown the property claimed by them under Exts.B1 to B3 (Ext.B3 is the original of Ext.A8) as a plot with three tacks in the written statement, Ext.C7 report shows that when they were directed to show the properties claimed by them in the written statement by tacks for identification they expressed their inability. The report of the Commissioner establishes that in fact they shirked the liability to identify the property on the Commissioner, as they could not identify the property. It is in such circumstances, the Commissioner was compelled to identify the property with reference to Ext.A9 as well as the boundaries of Ext.A8. On such identification plots A1, A3 and A4 were identified as the property covered under S.A.607/1995 13 Ext.A8. I find absolutely no reason to interfere with that identification. 8. So also respondents 1 to 6 have no case that plot C is not a portion of the property of the appellants covered by Exts.A1 and A2 partition deeds. In fact as right and possession of plot C is undisputed, learned Sub Judge though found that the plaint schedule property was not identified, fixed the northern boundary of the plaint schedule property as c-d line which is the northern boundary of plot C. 9. The question therefore is whether plots B and A2, which lies to the south of plot A1 and to the north of plot C, form part of the property allotted to the thavazhi of Kunhilakshmi Amma under Ext.A1 and subsequently to the share of appellants and respondents under Ext.A2 partition deed, as item No.6 of the D schedule therein. 10. On the pleading and the evidence, learned Sub Judge was not justified in finding that S.A.607/1995 14 identity of the plaint schedule property is to be established by plaintiffs. Even according to respondents 1 to 6, property claimed by them under the lease set up under Exts.B1 is part of the property obtained by the thavazhi of appellants under Exts.A1 and A2. Apart from the property claimed under Ext.A8, respondents 1 to 6 are claiming plot A2 and B, based on Exts.B1 and B2, which in turn is a lease allegedly granted by Kunhilakshmi Amma. Therefore the fact that plots A2 and B, forms part of the property covered by Exts.A1 and A2 cannot be disputed. It is seen that when nineth respondent was examined as DW1, in chief examination itself he deposed that plots B and A2 together is the property covered by Exts.B1 and B2 thereby unambiguously admitting that it is part of the property belonging to the thavazhi of appellants obtained under Exts.A1 and A2. If that be so, it cannot be disputed that plot A2 and B are portions of the property obtained by appellants S.A.607/1995 15 under Exts.A1 and A2. 11. In such circumstances, the real question is whether there was a lease in favour of Choyi, as claimed by respondents 1 to 6 or the property continued to be in the possession of the appellants. Definitely the burden is on respondents 1 to 6 to establish the lease as well as possession of the property under the lease. Respondents 1 to 6 are relying on Exts.B1 and B2 to prove that there was a lease. Ext.B1 is a kuzhikanam deed allegedly executed by Kunhilakshmi Amma in favour of Choyi on 14.10.1957, in respect of three tacks of property. What is stated in Ext.B1 is that Choyi had earlier obtained an oral lease and in respect of that property, Ext.B1 was executed providing that Choyi has to be in possession of the property as a kuzhikanom tenant for a period of 12 years with a liability to pay an annual rent of Rs.3/-. As stated earlier, it is an unregistered document. Ext.B2 is registration S.A.607/1995 16 copy of document No.1956/1957, executed on 14.10.1957 and registered on the same day. Ext.B2 is purported to be a counterpart for accepting the lease granted under Ext.B1. Ext.B2 also shows that an annual rent of Rs.3/- is to be paid. Appellants are disputing the genuineness of Exts.B1 and B2. It is contended that Ext.B1 was not executed by Kunhilakshmi Amma and Ext.B2 was executed by Choyi without the knowledge of Kunhilakshmi Amma and therefore no reliance could be placed on them. Learned Munsiff found that being an unregistered document by which a lease was created for a period of 12 years, under section 49 of the Registration Act, the document cannot be admitted in evidence and therefore Ext.B1 cannot be looked into and if Ext.B1 goes, Ext.B2 is insufficient to establish the lease. Learned Sub Judge found that though to base the title the unregistered lease deed cannot be admitted in evidence, for collateral purpose it could be admitted in evidence and if so admitted, S.A.607/1995 17 it could be looked into to prove possession as well as the nature of possession. 12. A learned single Judge of this court in Neelakantan Sreedharan v. Subba Bhakthan Narayana Bhakthan (1975 KLT 128) had occasion to consider the admissibility of an unregistered rent deed. It was held that though an unregistered lease deed, if lease is for a period of more than twelve months inadmissible to prove the creation of a lease, to prove an oral lease accompanied by delivery of possession as mentioned in Section 107 of the T.P.Act, the rent deed can be relied to establish the jural relationship between the parties. If it contains an admission or an acknowledgment by the defendant, who is sought to be made liable it is possibly the best evidence that one can possibly have to prove the oral agreement of lease. 13. In the light of the decision, it cannot be said that Ext.B1 though an unregistered lease deed cannot be admitted in evidence or cannot be S.A.607/1995 18 looked into. As rightly pointed out by the learned Sub Judge, Ext.B1 can be looked into for collateral purpose though it cannot be relied on to establish the title. 14. But the crucial question is whether Ext.B1 is proved be a kuzhikanam deed executed by Kunhilakshmi Amma to be used even for collateral purpose. Even the genuineness of Ext.B1 is was disputed, it is for respondents 1 to 6 to establish that Ext.B1 was executed by Kunhilakshmi Amma. Though it is seen attested by two witnesses who are also claimed to be the attesting witnesses to the original of Ext.B2, none of them were examined. The only evidence adduced by respondents 1 to 6 is that of nineth respondent, who deposed when examined as DW1 that he has no personal knowledge with regard to the execution of Ext.B1 or B2. The other witness had not spoken anything about Ext.B1 or B2. Therefore there is no legal evidence to prove that Ext.B1 is a kuzhikanam deed executed S.A.607/1995 19 by Kunhilakshmi Amma creating a lease in favour of Choyi. Though there is averment of an oral lease in Ext.B1, no evidence was adduced to prove the existence of an oral lease. Hence Ext.B1 cannot be relied on for collateral purpose also. Hence Ext.B1 cannot be looked into even for collateral purpose. 15. Then the question is whether Ext.B2 establishes the lease. As rightly pointed out by the learned counsel appearing for the appellants Ext.B2 is a unilateral document. It was seen executed by Choyi in favour of Kunhilakshmi Amma as if it is the counterpart of a kuzhikanam deed executed by the landlord. Ext.B2 does not show that the said kuzhikanam deed was executed by Kunhilakshmi Amma as an unregistered document. It is not known why the counterpart is to be registered, when the kuzhikanam deed executed by the landlord is not registered. Ext.B2 does not show that original of Ext.B2 was accepted by S.A.607/1995 20 Kunhilakshmi Amma. There is no evidence to prove that Ext.B2 was executed with the knowledge of Kunhilakshmi Amma. Therefore Ext.B2 also is insufficient to establish the lease. 16. If Exts.B1 and B2 are genuine, the property was obtained earlier on an oral lease by Choyi and subsequently Exts.B1 and B2 were executed for a period of twelve years and he is liable to pay an anuual rent of Rs.3/-. Though DW1 claims that rent as stated in Exts.B1 and B2 was paid and receipts obtained and those receipts were lost, there is absolutely no evidence to establish that any such rent was paid or any such receipt was obtained. In such circumstances, there is no evidence to prove that there was a lease as claimed by respondents 1 to 6. Added to this, it is to be born in mind that nineth respondent is none other than the Village Officer of the same village where the property is situated. His evidence show that as Village Officer he has to initiate suo motu S.A.607/1995 21 proceedings to grant assignment of jenm right to the tenants, who omitted to file an application under section 72F of Kerala Land Reforms Act. In spite of the fact that nineth respondent is aware of the necessity to purchase jenm right in respect of property hold as cultivating tenant no application was filed. If in fact respondents 1 to 6 were genuine cultivating tenants in possession of the property entitled to purchase property pursuant to a lease, whether oral or written granted by Kunhilakshmi Amma as claimed by them, in the ordinary course, they would have applied to purchase its jenm right. It was not done. It is in evidence that though suo motu proceedings was initiated in respect of the property claimed by respondents 1 to 6, the said suo motu proceedings was dropped when appellants intervened therein and disputed the claim. Though in the written statement, it is contended that respondents 1 to 6 would file an appeal, no appeal was filed. In S.A.607/1995 22 such circumstances, the lease set up by respondents 1 to 6 can only be disbelieved, as has been rightly done by the learned Munsiff. 17. Then the question is with regard to the possession. The argument of the learned counsel appearing for respondents 1 to 6 is that evidence of Dws 1 and 2 with Exts.B4 to B15 tax receipts establish their possession. Learned counsel appearing for appellants pointed out that Exts.B10 to B15 are to be ignored as they are subsequent to the institution of the suit and Exts.B4 to B10 will not establish that the said payment of basic tax was in respect of the plaint schedule property and Exts.A3 and A5 tax receipts establish that appellants had paid basic tax for the plaint schedule property. 18. Exts.B10 to B15 being obtained subsequent to the institution of the suit are to be ignored to settle the disputed question of possession. Exts.B4 to B10 are prior to the institution of the S.A.607/1995 23 suit. They were obtained by the mother of respondents 1 to 6 and others. But from Exts.B4 to B10 it cannot be said that they are in respect of the plaint schedule property. All those receipts were of subsequent to 1976. By 1962 under Ext.A8 Choyi had already obtained the property covered therein and therefore payment of tax could be for the said property and need not be for the property covered under Ext.B1. Hence based on Exts.B4 to B10, it cannot be said that respondents 1 to 6 are in possession of the property especially when appellants have also paid basic tax, evidenced by Ext.A3 to A5. Exts.A3 to A5 payments are exactly for the extent of the property allotted to their share under Exts.A1 and A2. In such circumstances, based on possession also respondents 1 to 6 cannot contend that appellants are not entitled to the decree granted by the trial court. 19. Exts.C7 report with Ext.C6 plan establish that the Commissioner has correctly identified and S.A.607/1995 24 demarcated the property claimed by respondent 1 to 6 under Exts.A7 and A8. They are plots A1, A3 and A4. The plaint schedule property belonging to the appellants is plots C, B and A2 in Ext.C6 plan. The line a e therein is the demarcating line, separating the property of appellants under Exts.A1 and A2 and the property of respondents 1 to 6 under Ext.B3.(Ext.A8). When respondents 1 to 6 failed to establish that there was any lease in their favour and they claimed lease in respect of plots A2 and B claiming that they were