IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 SA.No. 365 of 1995(B) ------------------------------- OS.548/1985 of ADDL.MUNSIFF COURT ,KOZHIKODE-I AS.72/1990 of ADDL. DISTRICT COURT,KOZHIKODE .................... APPELLANT(S): 3RD PLAINTIFF --------------------------------------------- KRISHNADASAN, S/O. LATE LAKSHMIKUTTY AMMA, RESIDING AT VALAYANAD AMSOM, DESOM, KOZHIKODE TALUK. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): DEFENDANTS 2 TO 6 & APPELLANTS 2 TO 6. PLAINTIFFS 2,4 & 5 ------------------------- AND APPELLANTS 2,4 AND 5. 1. SWAMINATHAN, S/O. AMMALUKUTTY AMMA. *2. KUNNATH UNNIKRISHNA MENON, S/O. AMMALUKUTTY AMMA. (DIED) 3. PADINJATHATH PADMAVATHY AMMA, D/O. JANAKI AMMA. 4. GEETHA, D/O. PUTHUKKANATTIL RAJALAKSHMI AMMA. 5. VIJAYALAKSHMI, D/O. RAJALAKSHMI AMMA, ALL RESIDE AT VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. 6. KALLIANIKUTTY, 7. PARVATHYKUTTY, 8. RAMANI ALL RESIDE AT VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. SA. NO.365/1995 *ADDL. R9 TO R14 IMPLEADED. 9. PUTHENPURA PARAMBU MEENAKSHKUTTY, AGED 48 YEARS, W/O. UNNIKRISHNA MENON, KOMMERI P.O., CALICUT 7. 10. VASANTHI, AGED 31 YEARS, D/O. UNNIKRISHNA MENON DO. DO. 11. MOHANDAS, AGED 29 YEARS, S/O. DO. DO. 12. SASIKUMAR, AGED 27 YEARS, S/O. DO. DO. 13. SHEEJA, AGED 24 YEARS, D/O. DO. DO. 14. SHEENA, AGED 19 YEARS, D/O. DO. DO. SUPPELEMENTAL RESPONDENTS 9 TO 14 ARE IMPLEADED AS LRS, OF DECEASED 2ND RESPONDENT AS PER ORDER DTD. 11.3.03 ON CMP. NO.929/1996. R1,R3 & R5 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE R1,R3 & R5 BY ADVS. SMT.PRABHA R.MENON, SRI.PUSHPARAJAN KODOTH, SRI.M.KRISHNAKUMAR, SRI.K.JAYESH MOHANKUMAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ------------------------ S.A.No.365 Of 1995 ---------------------- Dated this the 17th day of September, 2010. J U D G M E N T Third plaintiff in O.S.No.548 of 1985 on the file of the Additional Munsiff Court, Kozhikode-II, is the appellant. The appeal is directed against the judgment and decree in A.S.No.72 of 1993 of the Additional District Court, Kozhikode. Suit was filed for recovery of possession on the strength of title and for consequential injunction. Trial court held that the plaintiffs have no right or title over the entire plaint schedule property and therefore not entitled to any reliefs. The trial court dismissed the suit. The lower appellate court confirmed the findings of the trial court. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. Plaintiffs' case is that plaint A schedule property was obtained by the mother of the first plaintiff in the year 1943 by virtue of Ext.A1 registered mortgage deed and from that date the first plaintiff's mother was in actual possession and enjoyment of the plaint schedule property. Plaint B & C schedule are portions of plaint A schedule property. B schedule property was given to the predecessor-in-interest of the defendants for constructing a S.A.No.365 Of 1995 ::2:: house with a condition that the property shall be surrendered on demand. It is pleaded in the plaint that the predecessor-in- interest of the defendants constructed a thatched house in plaint B schedule property and subsequently in the place of thatched house the defendants have constructed a tiled house. The plaintiffs claim title to the property on the strength of Ext.A1 mortgage deed and also by virtue of Ext.A21 will executed by the mother in favour of the plaintiffs. Plaintiffs obtained purchase certificate from the Land Tribunal and are paying tax to plaint A schedule property. Plaintiffs also pleaded that the defendants trespassed into plaint C schedule property and attempted to construct a house in plaint C schedule property. It is apprehended that defendants may at any time construct a house in C schedule property, therefore the suit was filed for recovery of plaint C schedule property and for consequential injunction. The plaint A schedule property is 55 cents, B schedule 2¾ cents and C schedule 1.75 cents. 3. Defendants 1 & 2 in the written statement contended inter alia that the property comprised in T.S.No.24/12/526 Talikunnuparamba originally belonged to Zamorin Raja and from S.A.No.365 Of 1995 ::3:: that survey number, about 50 cents of properties were given to the grandmother of the defendants 1 & 2 in the year 1948, that the grandmother of the defendants was an employee under the Zamorin Kovilakom, that after the retirement of the defendants' grandmother, plaint schedule property was given to her by Zamorin Kovilakom and the Land Tribunal issued purchase certificate in respect of the plaint schedule property. They also contended that after the death of the mother Ammalukkutty Amma, the property devolved on defendants 1 & 2, that in 1976 mother of the defendants constructed a house and latrine in the said property in the same place where the old thatched house was situated, that in the mean while one Parukutty @ Kunhimalu Amma, her son Gopala Menon and their power of attorney holder Govindankutty Menon filed O.S.No.117 of 1962 against the defendants, their mother and grandmother for recovery of possession. According to the defendants the plaint schedule property in the present suit is the same in O.S.No.117 of 1962. The said suit was dismissed accepting the contentions of the present defendants. The appeal preferred by the plaintiffs in the said suit as A.S.No.371 of 1969 was also dismissed. Defendants S.A.No.365 Of 1995 ::4:: assigned 11½ cents of property out of the plaint schedule property to the third defendant. The third defendant in turn assigned his right over the property to defendants 5 & 6 and that defendants 5 & 6 are in possession and enjoyment of the said property. It is also pleaded that the third defendant after obtaining licence and plan from the Corporation constructed a basement for the construction of a house in the properties obtained by him. Defendants 1 & 2 assigned another portion of plaint schedule property having an extent of 5 cents to the 4th defendant and the 4th defendant is in actual possession of the 5 cents of property thus assigned. It is also contended that the plaintiffs have no manner of right, title or possession over the properties of the defendants. Defendants 3 to 6 filed a written statement. They have also adopted the contentions raised by the defendants 1 and 2. 4. Plaintiffs claim title and possession over the plaint schedule property on the strength of Exts.A1, A3, A21 and other documents. Plaintiffs also relied on the testimonies of PW1 & PW3 in support of their claim for title. According to the plaintiffs their mother got the plaint schedule properties by virtue of S.A.No.365 Of 1995 ::5:: Ext.A1 mortgage deed dated 6.5.1943. Ext.A2 is the Kanom Assignment deed. Ext.A3 is the purchase certificate. According to the plaintiffs a portion of plaint A schedule property, namely, B schedule property was given to the predecessor-in-interest of the plaintiffs for constructing a house. The predecessor-in-interest of the defendants constructed a thatched house in plaint B schedule property and subsequently, they have constructed a tiled house. It is the plaintiffs' case that in 1949 the mother of the first plaintiff executed a will in favour of the plaintiffs. After the death of the mother the plaintiffs are in actual possession and enjoyment of the property. It is their further case that in 1964 as per Kanom Assignment deed, marked as Ext.A2, they got assignment and accordingly, they are in actual possession and enjoyment of plaint A schedule property. According to the plaintiffs, they got purchase certificate from the Land Tribunal and are paying tax to plaint A schedule property. Ext.A3 is the purchase certificate issued by the Land Tribunal. Ext.A4 is the licence issued by the Calicut Municipality for construction of a building in the plaint schedule property. Plaintiffs have produced the building licence marked as Ext.A4. Exts.A5, A6, A8, A9, A12 S.A.No.365 Of 1995 ::6:: and A16 are the rent receipts issued by the then owner of the plaint schedule property. After obtaining the property the plaintiffs and their predecessor-in-interest paid basic tax for the plaint schedule property. Exts.A7, A10, A11, A13 & A14 are the building tax receipts issued in the name of the plaintiff. Exts.A18, A19 and A20 are the plans of the plaint schedule property obtained from the village office. 5. The trial court appreciated the evidence tendered by the parties. The trial court also examined the contention of the defendants that the property was obtained by the predecessor-in- interest of the defendants from the Zamorin Kovilakom. According to them they obtained the property from the Kovilakom and they have put up a house and planted kuzhikoors. Ext.B1 is the licence and plan produced by the defendants. Ext.B2 is the certified copy of the plaint in O.S.No.117 of 1962. Exts.B3 & B4 are the decree and judgment in O.S.No.117 of 1962. According to them after the disposal of previous suit, O.S.No.117 of 1962, defendants mortgaged the property to a third party. Ext.B7 is the mortgage deed of the year 1970. They have also relied on the certificate of purchase issued in their S.A.No.365 Of 1995 ::7:: favour. Ext.B9 is the certificate of purchase. The extent shown in Ext.B9 is 42 cents. It is their further case that after obtaining the purchase certificate they have assigned certain portions to defendants 3 & 4 and the 3rd defendant in turn assigned his right in favour of defendants 5 & 6. 6. The trial court examined the oral evidence of DWs 2 & 3. The court observed that the evidence of DW2, a neighbouring witness who knows about the properties since 35-40 years and DWs 3 testified before the court that the property belonging to the plaintiffs and defendants are lying separately. Relying on the evidence of these two witnesses the trial court observed that the property belonging to the plaintiffs is lying on a lower level than the property of the defendants. The court observed that all the documents produced by the plaintiffs will show that they have right over the property on the western side of the entire area. The court also observed that the witnesses examined on the side of the plaintiffs and defendants stated that the portion of which the defendants are in possession is lying in a higher level than the portion in possession of the plaintiffs and that there is remnants of fence in the boundary. At the same time the court S.A.No.365 Of 1995 ::8:: held that the plaintiffs have not proved their title over the property excluding plaint B schedule property. The trial court held that the plaintiffs have not cared to take out a commission for identifying the plaint schedule property. 7. The trial court also held that in the previous suit, O.S.No.117 of 1962 right of the defendants are confirmed, that the defendants 1 & 2 and their predecessor-in-interest were in possession of the property and hence the plaintiffs right if any in the plaint schedule property is lost by adverse possession and limitation. On the basis of the above said findings, the trial court dismissed the suit. 8. The lower appellate court also entered more or less the same findings. The lower appellate court held that there is no sufficient proof to show that the executant of Ext.A1 had got any right over the properties and that there is nothing on record to show that Sankunni Menon had got any right over the properties to execute documents for and on behalf of the tarwad at the time of Ext.A1. The lower appellate court observed that unless it is brought out in evidence that either Sankunni Menon or his tarwad had got any right over the properties, Ext.A1 is not S.A.No.365 Of 1995 ::9:: at all valid and binding upon the plaintiffs. The lower appellate court further held that though the plaint schedule property herein is not exactly identical to the plaint schedule property in Ext.B2 suit, the survey number and the description of the property are almost similar and that the evidence of PWs 1 to 3 would show that though there is some difference with regard to the description of the property in this suit and in Ext.B2 suit, the plaint schedule property is nothing other than the plaint schedule property in Ext.B2. After referring to Ext.B3 and B4 decree and judgment in O.S.No.117 of 1962 the learned judge held that the predecessor-in-interest of the plaintiffs have no possession over the property in pursuance of Ext.A1. The lower appellate court also held that the plaintiffs have obtained purchase certificate without issuing notice to the defendants, therefore, Ext.A3 would not be binding on the defendants even if it is in respect of plaint schedule property. The appellate court also found that there is nothing to show that the plaintiffs have got any right over the properties at the time when Ext.A3 purchase certificate was obtained. S.A.No.365 Of 1995 ::10:: 9. On an examination of the relevant materials this Court is of the view that the findings entered by the courts below are not supported by evidence on record. DW2, a neighbouring witness who knows about the property about 35-40 years and DW3 another witness deposed that the property belonged to the plaintiffs as well as the defendants are lying separately. According to them the property belonging to the plaintiffs is lying in a lower level than the property belonging to the defendants. Even according to the defendants' witnesses both plaintiffs and defendants are enjoying properties at the same site, the trial court held in paragraph 13 of the judgment that the documents produced by the plaintiffs will show that they have right over the property on the western side of the entire area. The findings entered by the trial court is that the plaintiffs have failed to prove title and possession in respect of the entire plaint schedule property. The above said findings would go to show that the plaintiffs have title and possession over some extent in the plaint schedule property. The court on a finding, that the plaintiffs have got right, title and possession over some extent, can mould and grant relief to the extent of property owned and held by the S.A.No.365 Of 1995 ::11:: plaintiffs, instead the trial court held that the plaintiffs have no right, title or possession over the entire plaint schedule properties but, the evidence on record would show that the plaintiffs have right on the western side of the entire area would definitely mean that they have right, title and possession over at least a portion of the property. 10. While considering issue Nos.5 & 6 the trial court held that in the previous suit namely, O.S.No.117 of 1962, the right of the defendants are confirmed, that defendants 1 & 2 and their predecessor-in-interest were in possession of the plaint schedule property and hence the plaintiffs' right if any in the property is lost by adverse possession and limitation. In O.S.No.117 of 1962 the plaintiffs are not parties. Nobody has a case that their predecessor-in-interest were also parties to the said suit. The said suit was filed by three persons against the defendants. Being not parties, the findings in that suit are not binding on the plaintiffs. After finding that the plaintiffs have no right, title or interest over the plaint schedule property, the findings recorded by the trial court that the plaintiffs right in the property is lost by adverse possession and limitation also cannot stand. S.A.No.365 Of 1995 ::12:: 11. The appellate court after observing that the evidence of PWs 1 to 3 would show that though there is difference with regard to the description of the property in this suit and Ext.B2 suit, the plaint schedule property is nothing other than the plaint schedule property in Ext.B2, the lower appellate court proceeded to consider the title of the plaintiffs on the basis of the decision in Ext.B2 suit. Neither the plaintiffs nor the predecessor-in-interest of the plaintiffs were parties to Ext.B2 suit. I have examined the description and boundaries of Ext.B2 suit and compared with the description and boundaries in the present suit. I am unable to find that the properties scheduled in both suits are the same. The description and boundaries are different. Therefore the finding of the lower appellate court based on the findings in Ext.B2 suit cannot be upheld. The trial court also proceeded as if the properties in both suits are the same. Even after finding that the plaintiffs have not established title over the entire plaint schedule property, the trial court refused to mould relief and extend the relief at least to a lesser extent. The oral evidence adduced by the defendants' witnesses namely, DWs 2 & 3 also shows that both plaintiffs and defendants are in possession and S.A.No.365 Of 1995 ::13:: enjoyment of portions of the same property. The trial court held that the plaintiffs' right if any in the property is lost by adverse possession and limitation after finding that the plaintiffs have no title to the property is untenable. The said finding is based on the findings recorded by the court in O.S.No.117 of 1962. The trial court held that the defendants' right was declared in O.S.No.117 of 1962. The said findings is also not correct since the civil court in O.S.No.117 of 1962 only enquired about the title of the plaintiffs in that suit and held that the plaintiffs have failed to prove their title over the plaint schedule property in that suit. The trial court rightly held that the plaintiffs have not taken out a commission to identify plaint A, B & C schedule properties. Before the lower appellate court the plaintiffs requested the court to give a chance to take out a commission to identify plaint A, B & C schedule properties with reference to the title deed and for demarcation. The lower appellate court disallowed the prayer finding that the request was moved belatedly. In the light of the facts, circumstances and evidence discussed above in detail, this Court is of the view that the matter requires reconsideration. The question as to whether the plaintiffs are entitled to any right S.A.No.365 Of 1995 ::14:: over the whole property or portions of the property shall also be enquired into and the trial court shall decide the matter in accordance with law in the light of the observation contained in the judgment. In the result, appeal is disposed of as above. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for fresh consideration. Plaintiffs are at liberty to apply for a commission to measure, identify and demarcate the plaint schedule properties. The trial court shall dispose of the suit as expeditiously as possible, at any rate, within a period of nine months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 20.10.2010. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-