IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 SA.No. 96 of 2000(C) -------------------- AS.31/1997 of SUB COURT, HOSDURG OS.67/1996 of MUNSIFF COURT, HOSDURG .................... DEFENDANT/APPELLANTS/APPELLANTS: ---------------------------------------- 1. P.J.JOHN, S/O YOHANNAN PEROLE, PEROLE VILLAGE HOSDURG TALUK, KASARGOD DISTRICT, P.O. NILESHWAR 2. MARYKUTTY, W/O P.J.JOHN DO. DO. BY ADV. SRI.V.R.VENKATAKRISHNAN (SR.) SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN PLAINTIFF/RESPONDENT/RESPONDENT: ------------------------------------------ PUTHIYAPARAMBAN RAMACHANDRAN S/O SOUDAMINI AMMA, KARALAM KINANOOR VILLAGE, HOSDURG TALUK, P.O.KATTIPOYIL BY ADV. SRI.KODOTH SREEDHARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P.NO.224/00 & I.A.NO.168/06 IN S.A.NO.96/2000 DISMISSED 19-03-2008 Sd/-, PIUS.C.KURIAKOSE, JUDGE PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - S.A.No.96 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th March, 2008 JUDGMENT The defendants in a suit for recovery of possession and for mandatory injunction are aggrieved by the decree passed against them by the trial court and was confirmed in appeal by the lower appellate court. For sake of convenience, I shall refer to the parties ad defendants and plaintiff. 2. The case of the plaintiff is that he he obtained absolute title and possession of the suit property as per the registered document executed by onePuthiyaparambath Sarojini in the year 1996. The said Sarojini had filed a suit against the defendants vide O.S.No.376/1969 and had obtained a decree. Subsequently, she resorted to execution proceedings and took delivery of the property on 7.10.1976. Thereafter Smt.Sarojini assigned 2 cents from out of the total extent of 10 cents covered by the decree in O.S.No.376/69 to one Lakshmi and retained the balance extent of 8 cents along with building. While so, the defendants again trespassed into the property on 15.8.1994 and reduced the same into their illegal possession. By virtue of the assignment deed executed by Sarojini, the plaintiff has obtained title, interest and right over the property. Now the defendants have started S.A.No.96/2000 - 2 - to construct a latrine tank over the property and the plaintiff has objected. The plaintiff is suing for recovery of possession since defendants are assertng possession. 3. The defendants through their written statement contended that Sarojini never obtained the property under dispute by virtue of the delivery effected on 7.10.1976. The property originally belonged to Thaliyil Neelakanda Devaswom and that the defendants obtained kuzhikanom right from Puthiyaparambath Kunhiraman who was the intermediary. Subsequently, the defendants have obtained certificate of purchase as per order in O.A.No.10035/75 from the Land Tribunal and they are now in absolute possession of the property. As regards the assignment of 2 cents by Sarojini in favour of Lakshmi, the defendants have already filed petition before the R.D.O. It is also contended that the suit is barred by limitation. 4. On the pleadings, the learned Munsiff formulated the following issues for trial: 1.Whether the plaintiff has title upon the plaint schedule property? 2. Whether the title if any of the plaintiff is lost by adverse possession and limitation? 3. Whether the defendants have done any illegal constructions in the plaint schedule property? S.A.No.96/2000 - 3 - 4. Whether the plaintiff is entitled to the relief of surrender of possession? 5. Whether the plaintiff is entitled to the relief of mandatory injunction? 6. Reliefs and Costs. At trial the evidence on the side of the plaintiff consisted of documents Exts.A1 to A14 and witnesses Pws. 1 and 2. On the side of the defendants the evidence consisted of documents Exts.B1 to B6 and witnesses D.Ws. 1 to 3. Court exhibits were Commissioners report Ext.C1 and sketch submitted by the Commissioner Ext.C2. The learned Munsiff on an evaluation of the entirety of the evidence recorded in the case, decreed the suit as prayed for. In appeal preferred by the defendants, the learned Subordinate Judge formulated necessary points, reappreciated the evidence and concurred with the decision of the Munsiff. 5. On considering the Second Appeal for admission, this court called for the LCR and on receiving the LCR the case was again posted for admission. 6. I have heard the submissions of Mr.V.R.Venkatakrishnan, learned Senior Counsel appearing for the appellants-defendants and those of Mr.Kodoth Sreedharan, learned counsel appearing for the S.A.No.96/2000 - 4 - respondent-plaintiff. 6. Mr.Venkatakrishnan, learned Senior Counsel would argue that the courts below were carried away by the decree in O.S.No.376/69 and failed to notice that the said decree related to a building only. Though it is claimed that the building was delivered as per Exts.A1 and A2, there was no convincing evidence to show that actual delivery was effected in favour of the respondents. According to him, there was only symbolic delivery and that the appellants continue to retain possession. The evidence in the case would establish to the very hilt that the appellants are in undisputed possession of the property at all relevant times. It was therefore impossible to assume that the plaintiff obtained any rights over the property under Ext.A3 executed by Sarojini. Due weight has not been attracted to the courts below to the purchase certificate which has been issued in favour of the appellants by the Land Tribunal. The Purchase Certificate has been issued by the Land Tribunal following an enquiry which reveal that the appellants were in possession. The courts below have not appreciated the evidence which came on record in the case correctly. According to the learned Senior Counsel, several substantial questions of law do arise for determination in this case and all the questions are to be answered in favour of the S.A.No.96/2000 - 5 - appellants. The judgment and decree liable to be set aside and the suit is liable to be dismissed with costs, submitted the senior counsel. 7. All the submissions of the learned Senior Counsel were convincingly answered by Mr.Kodoth Sreedharan, counsel for the respondent-plaintiff. 8. I have considered the rival submissions. I have gone through the judgment of the trial court as well as the lower appellate court. Though I am not expected to do so, I have gone through the records for the purpose of deciding as to whether the substantial questions of law suggested in the appeal memorandum arise for determination on the legal evidence which came on record in the case. 9. The following are the substantial questions of law suggrested by the learned Senior Counsel as arising for determination in this Second Appeal: A. Whether the courts below justified in ignoring the order of the Land Tribunal and the certificate of purchase issued by the Land Tribunal evidenced by Exts.B1 and B2 in evaluating the case of the appellants. B. So long as this order of purchase and the certificate of purchase issued by a competent Land Tribunal, remain, is the plaintiff entitled to sue without setting aside the order and the purchase certificate. S.A.No.96/2000 - 6 - C. The above orders are valid until set aside and was the court below correct in disregarding the legal effect of these documents which are otherwise valid. D. The property obtained by Sarojini is not clear since the final decree in the partition has not been produced and even Exts.A1 and A6 deal only with a building while the present suit item has been shown as a piece of property with an extent of 8 cents thereby showing the lack of title in Sarojini and with her assignee, the plaintiff. E. Since the report of the Commissioner shows that the appellants are in possession, is not the case of the appellants that no actual delivery took place more probable and acceptable. F. The possession of the appellants is indisputable in view of Exts.B3 to B5(d) (revenue receipts for the land, house tax receipts and ration card) and therefore are not the appellants entitled to put forward the plea of adverse possession. G. Since the title of Sarojini itself is in doubt, can the plaintiff claim anything under Ext.A3 and if that be so, is the suit maintainable. H. Whether the courts below justified in thinking that the appellants put forward inconsistent pleas though there was no inconsistency and the defendants can always put forward such pleas. I. Should not have the courts below seen the fact that permission was S.A.No.96/2000 - 7 - granted to the appellants to dig a tank and make other improvements thereby indicating long possession which ripened into adverse possession. J. On the materials available, whether the courts below justified in decreeing the suit. Having carefully scanned the evidence which in my opinion was properly appreciated and reappreciated by the learned Munsiff and the learned Subordinate Judge, I am of the view that none of the questions of law suggested by the learned Senior Counsel as arising in this case seriously arise for determination in the appeal. The findings of the courts below are founded on the evidence on record and the appreciation of evidence by the trial court as well as by the lower appellate court, in my opinion, have been quite proper. As rightly noticed by the lower appellate court, the derivation of title which is based to a final decree passed in O.S.No.478/66 has not been denied specifically by the defendants. The contention that the delivery in favour of Sarojini was only a symbolic delivery has been rightly turned down by the lower appellate court which noticed that actual physical delivery had been effected with police aid. The courts below relied on assignment of 2 cents of land by Sarojini after delivery of the entire property in her favour to one Lakshmi and S.A.No.96/2000 - 8 - noticed that though that assignment was challenged by the defendants before the R.D.O., the challenge was unsuccessful. The courts below also noticed that the contentions based on cultivating tenancy rights assigned under the order of the Land Tribunal in O.A.No.10035/75 were contentions which had been unsuccessfully raised in the previous suit. The courts below also rightly repelled the contentions of the defendants regarding obtainment of title by adverse possession and limitation by placing reliance on the judgment of the Supreme Court in D.N.Venkatarayappa v. State of Karnataka (AIR 1997 S.C. 2930). The result of the above discussion is that the Second Appeal fails and the same is dismissed. No costs. srd PIUS C.KURIAKOSE, JUDGE