IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 RSA.No. 439 of 2004(B) -------------------------------- AS.7/1997 of DISTRICT COURT, MANJERI OS.387/1991 of MUNSIFF COURT, MANJERI .................... APPELLANT/APELLANT/PLAINTIFF. -------------------- THRIKKALYOOR DEVASWOM REP. BY ITS EXECUTIVE BALAJI, K.BALAJI.RESIDING AT KIZHUMPARAMBA AMSOM, THRIKKALYOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON MR.M.KRISHNAKUMAR RESPONDENT(S): RESPONDENT.DEFENDANT. ----------------------- ALI. AGED 56 YEARS, S/O.MANNILTHODI, KURUKKAMPURATH MOHAMMED HAJI, RESIDING AT KIZHUPARAMBA AMSOM, DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. ADV. MR.AVM.SALAHUDIN (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.439 OF 2004 =========================== Dated this the 25th day of August,2011 JUDGMENT Plaintiff in O.S.387/1991 on the file of Munsiff Court, Manjeri is the appellant. Respondent is the defendant. Suit was originally filed for permanent prohibitory injunction. It was subsequently converted to a suit for recovery of possession of the plaint schedule property. Appellant is Thrikkalyoor Devaswom. Appellant contended that plaint schedule property belongs to the Devaswom and respondent has no right over the plaint schedule property and it lies to the west of the temple properties. Though properties of the Devaswom were entrusted on kanom demises, respondent has no manner of right or title to the plaint schedule property and on the strength of title, appellant is entitled to R.S.A.439/2004 2 recover possession of the plaint schedule property reduced in the possession of the respondent. Appellant filed a written statement contending that description of the plaint schedule property is not correct. Plaint schedule property cannot be identified on the description given in the plaint schedule. The written statement was filed, contending that only after the institution of the suit and inspection of the property by the advocate Commissioner, respondent could realise that the claim is in respect of the property in the possession of the respondent. It was contended that the said property belonged to the appellant and originally obtained on kanom by Chola Ahammadkutty Haji. On his death his legal heirs divided his properties under Ext.B3 partition deed 643/1968. As item No.5, property was allotted to Muhammadali. Under Ext.B1 and B2 sale deeds of 1980, respondent purchased the property from Muhammadali. Since then he has been in possession of the property. Respondent obtained purchase certificate from the Land Tribunal. Respondent has R.S.A.439/2004 3 title to the property. Even if appellant had any title to the property, it was lost by adverse possession and limitation. 2. Learned Munsiff framed the necessary issues. On the side of the appellant, no oral evidence was adduced. Only Ext.A1 was marked. On the side of the respondent his power of attorney holder was examined as DW1 and another witness was examined as DW2. The Commissioner who prepared Exts.C1 to C4 reports and plans were examined as CW1. In addition Exts.B1 to B8 were marked. Learned Munsiff on the evidence found that appellant did not establish the identity of the plaint schedule property and appellant has no right or title to the plaint schedule property covered under Exts.B1 to B7. The suit was dismissed. Appellant challenged the decree and judgment before District Court,Manjeri in A.S.7/1997. Learned District Judge on reappreciation of the evidence found that plaint schedule property was not identified and therefore appellant is not entitled to the decree sought for. It is challenged in the second appeal. R.S.A.439/2004 4 3. Appeal was admitted formulating the following substantial questions of law. 1. When the disputed property is identified by the Commissioner in Ext.C3 plan, whether the finding of the courts below that the plaint schedule property has not been identified is sustainable in the light of the evidence on record. 2. When the defendant has admitted the title of the plaintiff to the disputed property and are contending that the property was outstanding on lease and was divided under Ext.B3 and it is item No.5 therein, R.S.A.439/2004 5 whether it is necessary to prove the title of the plaintiff to the said property, if the lease set up is not in respect of that property. 3) When the defendant is claiming right over item No.5 of Ext.B3 partition deed and under Ext.B1 to B5, whether the courts below were justified in non-suiting the plaintiff, even though Ext.B3 covers only a lesser extent. 4. Learned counsel appearing for the appellant and the respondent were heard. 5. The plaint schedule property as it originally stood was described as two acres in R.S.No.32 part of Keezhuparamba Village. The R.S.A.439/2004 6 property was described as pazhamparamba, south western part within the boundaries shown therein. After the Commissioner inspected the property and submitted Exts.C1 to C4 plans and reports, description of the plaint schedule property was amended substituting the extent as 2.52 acres and Resurvey No.33 and 221/1A of the same village. Appellant had not produced any document establishing title. The description of the plaint schedule property originally given in the plaint was admittedly not correct. The respondent filed a written statement later realising the identity of the property being claimed in the suit. At his instance a Commission was appointed and the Commissioner inspected the property and filed Ext.C1 rough sketch and Ext.C2 report. They show the plaint schedule property as claimed by the appellant. The written statement was filed thereafter. A reading of the written statement establishes that, when the written statement was filed appellant was aware of the identity of the property claimed by the appellant as the plaint R.S.A.439/2004 7 schedule property. In paragraph 2 of the written statement, it was unambiguously admitted by the respondent that the said property belongs in jenmom Thrikkalyoor Devaswom namely the appellant Devaswom. In paragraph 7 of the written statement respondent has pleaded that though originally he could not follow which was the plaint schedule property, when the Commissioner inspected the property and the plaint schedule property was shown to the Commissioner, respondent realised that the property claimed by the appellant as the plaint schedule property is the property in his possession. Respondent has claimed right over the said property, admitting that title to that property originally vests in jenmom with the appellant Devaswom. What was pleaded in paragraph 7 of the written statement is that, that property was outstanding in the possession of Chola Ahammadkutty Haji on kanom right from the Devaswom and on his death his properties were divided by his legal heirs under Ext.B3 partition deed 643/1968 and the disputed property was allotted to the share R.S.A.439/2004 8 of Muhammadali and under Exts.B1 and B2 sale deeds 655/1980 and 1878 of 1980, respondent purchased that property and has been in possession of the disputed property and later he filed an application for purchase of jenmom right before the Land Tribunal and jenmom right was assigned to him and Exts.B4 and B5 purchase certificates were issued and therefore appellant cannot claim any right or possession of the property. After the plaint was amended claiming a decree for recovery of possession on the strength of title, subsequent to the dismissal of the application for injunction filed by the appellant under Order XXXIX Rule 1 of Code of Civil Procedure contending that respondent reduced the plaint schedule property into his possession and claimed recovery of possession, an additional written statement was filed. In the additional written statement respondent contended that plaint schedule property has been in his possession under Ext.B1 and B2 assignment deeds, obtained from Muhammadali, and since then he has been in possession of the plaint schedule property R.S.A.439/2004 9 and as plaint schedule property has been in the possession of his predecessors for the last several years, even if appellant has any title to that property, it has been lost by adverse possession and limitation. In the light of these contentions, I cannot agree with the findings of the courts below that plaint schedule property is not identified. 6. When the respondent filed the written statement, he was aware which is the property claimed by the appellant as the plaint schedule property. He was also aware that, that is the property claimed by him under Exts.B1 and B2, which in turn was the property allotted as item No.5 of the properties divided under Ext.B3 partition deed. Ext.B3 partition deed shows that item No.5 therein was obtained by Chola Ahammadkutty Haji under a kanom deed of 954/1942, from the appellant Devaswom. Therefore there cannot be any dispute with regard to the identity of the plaint schedule property. True, if the plaint schedule property is to be identified with R.S.A.439/2004 10 reference to Ext.A1, the only document produced by the appellant, it cannot be the plaint schedule property. The plaint does not disclose that the appellant is claiming that the property covered under Ext.A1 is the plaint schedule property. No oral evidence was adduced by the appellant. Though when the power of attorney holder of the respondent was examined as DW1, Ext.A1 was marked by the appellant stating that it is the document by which Pullani Unnimaruth and his sister Pathumma obtained the property on kanom right, nowhere in the plaint or during the cross examination of DW1, it was suggested that plaint schedule property is the one covered under Ext.A1 or that the property outstanding on lease in favour of Chola Ahammadkutty Haji under document 954/1942, was the property covered under Ext.A1. Therefore based on Ext.A1 or on identification by the Commissioner in Ext.C3 plan and C4 report, it cannot be found that plaint schedule property is not identified. As stated earlier, plaint schedule property is the property which admittedly belongs to the appellant R.S.A.439/2004 11 Devaswom. 7.Respondent is contending that the said property was outstanding in the possession of his predecessors namely Chola Ahammadkutty Haji and on his death under Ext.B3 his properties were divided and as item No.5 it was allotted to Mohamed Ali, his assignor under Ext.B1 and B2. When the respondent is contending that plaint schedule property is the property so obtained, he cannot dispute the identity of the plaint schedule property. In such circumstances, finding of the courts below that the plaint schedule property is not identified and therefore appellant is not entitled to the decree cannot be sustained. 8.Then the question is whether appellant is entitled to a decree for recovery of possession on the strength of title. Respondent is claiming right under Ext.B1 and B2, which in turn is the right obtained by his predecessor Muhammadali under Ext.B3 partition deed, as item No.5 therein. Hence the title of the appellant cannot be disputed. The right claimed is under a lease from the appellant R.S.A.439/2004 12 claiming that later purchase certificate was obtained from the Land Tribunal assigning the jenm right. Ext.B3 shows that the right divided thereunder is the right obtained by Chola Ahammadkutty Haji under document No.954/1942 from the Devaswom. Unfortunately neither the appellant nor the respondent produced that document. But neither the appellant nor the respondent has a case that the property covered under 954/1942, is not the property which is described as item No.5 in Ext.B3 partition deed or it is not the property which was assigned under Exts.B1 and B2. Therefore appellant cannot claim any right or title to the property not covered under Ext.B1 to B3. The right which could be claimed is for the property granted on lease in favour of Chola Ahammadkutty Haji. It was under Exts.B6 and B7 orders the Land Tribunal assigned jenm right over the properties covered under Exts.B1 and B2 in favour of the respondent in SM 655/87 and SM 656/87. Those orders were passed by the Land Tribunal in the presence of the appellant Devaswom, R.S.A.439/2004 13 the landlord. 9. Though respondent had claimed in the written statement that he obtained the property under Ext.B1 and B2 and subsequently purchased jenmom right from the Land Tribunal and obtained Exts.B4 and B5 purchase certificates, it was not pleaded in the written statement or claimed at the time of evidence that the property obtained by Chola Ahammadkutty Haji and subsequently divided under Ext.B3 partition deed and assigned in favour of the respondent under Ext.B1 and B2, was not 1.77 ½ cents shown in Exts.B4 and B5, but it was having more extent. There was no case for the respondent that apart from the lease covered under document No.954/1942, which was divided under Ext.B3, either Chola Ahammadkutty Haji or his legal heirs obtained any other land on lease from the appellant Devaswom. Therefore being an assignee under Muhammadali under Exts.B1 and B2 he could claim only the property covered under item No.5 of Ext.B3. Respondent cannot claim right over any additional extent of the property. In fact Land R.S.A.439/2004 14 Tribunal assigned jenmom right in favour of the respondent under Exts.B5 and B6, only in respect of the property covered under Exts.B1 and B2. Under Ext.B4 purchase certificate respondent was assigned jenm right in favour of tak No.1 of item No.5 of Ext.B3, namely 40 x 40 six feet koles, having an extent of 1.33 acres. Under Ext.B5, jenm right was assigned in favour of the respondent, over only tak No.2 of item No.5 namely 23 x 25 six feet kole having an extent of 44 cents. Therefore respondent could claim title under Exts.B1 and B2 and B4 and B5 only over an extent of 1.77 ½ acres. 10.Ext.C3 plan shows that at present respondent is in possession of plot AA1DE having an extent of 1.99 acres and also plot A1BCD which lies to its west, having an extent of 53 cents. Evidence of DW1 establishes that Ext.B4 and B5 purchase certificates relate only to the western plot namely AA1DE. When that extent of plot AAIDE is 1.99 acres and the property covered under Exts.B4 and B5 is only 1.77 ½ acres, it is clear that respondent R.S.A.439/2004 15 has no right or title to the entire plot AA1DE and he could claim only right and title to 1.77 ½ acres under Exts.B1, B2,B4 and B5. As the original title of the appellant to the entire property is admitted and respondent has claimed only right under Exts.B1 and B2, which in turn is the right obtained his assignor under Ext.B3, he cannot claim any other property, except by establishing his adverse possession. 11.Thus the question is whether respondent could claim title by adverse possession in respect of the plaint schedule property, excluding the property covered under Exts.B4 and B5. The plea of adverse possession is raised in the additional written statement as an alternate plea contending that even if appellant has no title, it has been lost by adverse possession. It is to be born in mind that respondent is claiming to be a cultivating tenant under the appellant Devaswom, being an assignee of the tenancy right from the original tenant Chola Ahammadkutty Haji. Ext.B6 and B7 orders were passed by the Land Tribunal only R.S.A.439/2004 16 in 1987. Though Exts.B6 and B7 orders were passed in suo motu proceedings, the written statement shows that the suo motu proceedings were initiated on an application filed by the respondent. It is therefore clear that respondent admitted that appellant is the landlord and he is the tenant of the property even in 1987. If that be so, respondent cannot claim that he has perfected his title against the appellant landlord, by adverse possession as a tenant cannot prescribe title by adverse possession against his landlord. In such circumstances, the plea of adverse possession raised by the respondent, though was not considered by the courts below, cannot be sustained. 12. In view of my finding, it can only be found that appellant, who has title to the plaint schedule property,is entitled to recover possession of the portion of the plaint schedule property in the possession of the respondent, excluding the property covered under Exts.B1 and B2, Exts.B4 and B5 purchase certificates. As the said property was not identified and located, a decree cannot be R.S.A.439/2004 17 granted, without properly identifying and locating the property to be recovered. For that limited purpose the suit is to be remanded back to the trial court. The appeal is allowed in part. The decree and judgment in O.S.387/1991 of Munsiff Court, Manjeri, as confirmed in A.S.7/1997 by District Court, Manjeri, are set aside. O.S.387/1991 is restored to file and remanded to Munsiff Court, Manjeri for fresh disposal. Learned Munsiff to appoint a Commission, at the expense of the plaintiff, to identify the property covered under Exts.B1 and B2 which is item No.5 of Ext.B3 partition deed, which in turn is the property covered under Ext.B4 and B5 purchase certificates. Plaintiff is entitled to recover possession of the remaining extent of the plaint schedule property excluding the property covered under Exts.B4 and B5 on the strength of title. If the Commissioner who prepared Ext.C1 to C4 is available, the same Commissioner may be appointed or otherwise an experienced Commissioner be appointed. It is made clear that even if the R.S.A.439/2004 18 property covered under Exts.B4 and B5, could not be properly identified, with reference to Exts.B4 and B5, due to the mistake in the boundaries, Commissioner need identify the property either based on Exts.B1, B2 or B3. Parties are directed to appear before the Munsiff on 3.10.2011. Send back the records to the trial court immediately. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006