IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 753 of 1997() -------------------- AS.9/1992 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.185/1984 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT IN AS - RESPONDENT NO.2 IN THE LOWER APPELLATE COURT - DEFENDANT NO.2 IN SUIT: ----------------------------------------------------------------------------------- OMANA, W/O.KUMARAN, RESIDING AT CHEERANGATTU VEEDU, PARAVOOTHARA MURI, PARAVUR PAKUTHY. (RESPODENT NO.1 IN THE LOWER APPELLATE COURT, PLAINTIFF IN THE SUIT DIED AFTER THE DECREE OF THE LOWER APPELLATE COURT AND THE APPELLANT HEREIN IS THE SOLE LEGAL REPRESENTATIVE OF THE DECEASED. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN VS RESPONDENT IN S.A. - APPELLAN IN THE LOWER APPELLATE COURT - DEFENDANT NO.1 IN SUIT. ----------------------------------------------------------------------- BALACHANDRAN, S/O.KUNJAN, ELLUNGAPPADY, KALADY KARA, MANICKAMANGALAM PAKUTHY. BY ADVS. SRI.V.V.SIDHARTHAN, SENIOR ADVOCATE SRI.T.SAJI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.01.2011, THE COURT ON 4.02.2011 DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 753 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2011. JUDGMENT Plaintiff in O.S. 185 of 1984 before the Sub Court, Paravur, who found herself non-suited by the lower appellate court, is the appellant before this court. It appears that after the lower appellate court delivered its judgment, the original plaintiff died and the Second Appeal had been filed by her legal representatives. 2. According to the plaintiff, the plaint schedule property belonged to her husband Achuthan Narayanan. Consequent on his death, it devolved on the plaintiff and her daughter, who is shown as the second defendant. The husband of the plaintiff was in possession of the property till 1970 and after his death the plaintiff and the second defendant have been in possession. Just on the eve of the suit when the son of the second defendant went to the property, he was threatened and obstructed by the first S.A.753/1997. 2 defendant, who claimed that he had tenancy rights over the property. Therefore the son of the second defendant cannot enter the property. Faced with that situation, the plaintiff has no option but to seek recovery of possession with mesne profits. 3. It appears that there was an amendment to the plaint and on the basis of the contentions raised by the first defendant, the third defendant was impleaded. Additional pleadings were also incorporated in the plaint. 4. The first defendant contended that his father, who is the third defendant, had obtained lease from Okkal Devaswom and his father had also obtained Ext.B1 purchase certificate. He disowned any liability to surrender the property and to pay mesne profits. After the amendment, it appears that defendants 1 and 3 filed a joint written statement pointing out that the plaintiff has not stated in the plaint as to under what right her husband had obtained the property. Contending that the third defendant had obtained a lease from Okkal Devaswom or jenmi of the S.A.753/1997. 3 property, and that he had obtained purchase certificate in respect of the property, they prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. Initially P.W.1 was examined and Exts.A1 and A2 were marked from the side of the plaintiffs. Defendants examined D.W.1 and Exts.B1 and B2 series were marked. On an evaluation of the evidence, the trial court decreed the suit by judgment dated 27.10.1986 making the third defendant liable for mesne profits at the rate of Rs.400/- per annum. The said judgment and decree were challenged by the first and third defendant as A.S. 101 of 1987 before the District Court, North Paravur. The appellate court allowed the appeal and remanded the matter for fresh disposal giving liberty to both sides to adduce further evidence, if they chose to do so. After the remand, plaint was once again amended. Further evidence was adduced and Ext.X1 file was also got produced before the court. The S.A.753/1997. 4 plaintiff had examined P.W.2 and had marked Exts.A3 and A4. The contesting defendants chose to adduce no further oral evidence, but produced Ext.B3 to B5. 6. The trial court on a consideration of the materials before it again decreed the suit in favour of the plaintiff. The aggrieved defendants carried the matter in appeal as A.S. 9 of 1992 before the District Court, North Paravur. By judgment dated 12.3.1997, the lower appellate court allowed the appeal and dismissed the suit. Hence the Second Appeal. 7. Notice is seen issued on the following questions of law: “(A) Has not the appellant proved her title to the suit property in the light of Ext.A3 and Ext.A1 documents? (B) Was not the plaintiff and the appellant necessary parties to the proceedings which led to Ext.B1purchase certificate, and in their absence, can they not ignore the same? S.A.753/1997. 5 © Is Ext.B1 purchase certificate binding on the appellant and is it not illegal for inaccuracies on the face of it? (D) Is not Ext.B1 certificate vitiated by fraud? (E) Does not Ext.A1 to Ext.A4 prove the non- existence of any lease in the name of the respondent's father as put forward by the respondent? (F) is not the appellant entitled to recover the suit property on the basis of her subsisting title? (G) Has not the appellant established her lease under the Okkal Devaswom on the fats and in the circumstances of the case?” 8. The trial court was of the opinion that Exts.A1 to A4 sufficiently establish the case of the plaintiff and that is sufficient to give a decree in favour of the plaintiff. According to the said court, it is clear that the property belonged to Chittethu family as per a partition of the year 1123M.E. The plaint schedule property was set apart to Bhargavi Amma and her children. The trial court on a S.A.753/1997. 6 consideration of the various documents came to the conclusion that the family was in actual possession of the property though the property was outstanding on a simple mortgage. Finding that the contesting defendant had miserably failed to establish the oral lease set up by them, the trial court held in favour of the plaintiff. 9. The lower appellate court on the other hand was of the view that there was no specific pleading in the plaint as to what manner of right the husband of the plaintiff Achuthan Narayanan obtained over the suit property and in the absence of any evidence in that regard the plaintiff could not succeed. The lower appellate court took note of the fact that the contesting defendants had obtained purchase certificate in a suo motu proceedings from the Land Tribunal concerned. Accordingly, the lower appellate court held against the plaintiff. 10. Before this court also learned counsel appearing for the appellant placed considerable reliance on Exts. A1 to A4. According to the learned counsel, the lower S.A.753/1997. 7 appellate court misdirected itself both in law and on facts. There was clear evidence to show that the property was outstanding on lease with Chittethu family and that by the various documents produced in the case it has ultimately came to devolve on Achuthan Narayanan, who was the husband of the original plaintiff. A reading of the various documents clearly show that Gopalan, who had given assignment of his rights to the first defendant had only a mortgage right over the suit property. There was absolutely no evidence from the side of the contesting defendants to show that the oral lease set up by them is true. According to learned counsel, since the predecessor in interest of the plaintiff was the actual lessee of the property, any purchase certificate obtained without notice to them is not binding on them. In support of the above contention, learned counsel relied on the decisions reported in Muhammad Haji v. Kunhunni Nair (1993(1) K.L.T 227), Shahul Hameed v. Lakshmi (1987 (1) K.L.T. SN page 17 Case No.31) and Cheru Ouseph v. Kunjipathumma (1981 K.L.T. 495). S.A.753/1997. 8 11. Learned counsel appearing for the appellant pointed out that the lessee, who has been ousted of possession has three options. He may either sue under Section 6 of the Specific Relief Act for a decree to be put back in possession or institute a suit under Article 64 of the Limitation Act based on his possessory title or institute a suit under Article 65 for recovery of possession on the basis of his title as a lessee. In support of his contention, learned counsel relied on the decision reported in Paulose v. Thomas (1999(2) K.L.T. 423). Learned counsel pointed out that the lower appellate court was not correct in coming to the conclusion that there was no evidence to show the nature of right which Achuthan Naryanan had over the suit property. A reading of Exts.A1 to A4 leaves one in no doubt, according to learned counsel, that it was a leasehold which was outstanding with Chittethu family and Bhargavi Amma, from whom the husband of the plaintiff obtained the S.A.753/1997. 9 property, had only a mortgage right. It was therefore contended that the judgment and decree of the lower appellate court are unsustainable in law. 12. Per contra, learned counsel appearing for the respondents pointed out that the lower appellate court has correctly applied the law and has appreciated the evidence in the proper perspective. The plaintiff having come forward with a suit for recovery of title , she was bound to prove her title and the plaintiff could not succeed on the weakness of the defence case. Even assuming that there was no acceptable evidence regarding the oral lease set up by the third defendant, that will not enure to the plaintiff, who will have to independently establish her title. It was also contended that the courts could not simply overlook the purchase certificate, namely Ext.B1, obtained by the third defendant, since under Section 72K, that is a conclusive evidence of the assignment of the right, title and interest of the landlord in favour of the tenant of the property. The person who is in possession of the purchase certificate will S.A.753/1997. 10 be deemed to be in possession of the property also. It was therefore contended that no interference is called for with the judgment and decree of the lower appellate court. 13. As rightly contended by the learned counsel for the respondents, the plaintiff having come to the court for recovery of possession on the strength of her title has to establish title over the suit property. Even assuming that the defendants have not adduced evidence with regard to his contentions, that will not be sufficient for the plaintiff to get a decree in her favour. These principles are well settled. 14. At the outset itself, one may notice that there is no dispute regarding the fact that the suit property is the property dealt with under Exts.A1 to A4. Initially the plaintiff had a case that the property did not belong to Okkal Devaswom and later that was changed and it was conceded that the jenmi of the property was Okkal Devaswom. As per Ext.A1 dated 30th Medam 1956 the predecessor in interest of the plaintiff, namely Achuthan Narayanan obtained the S.A.753/1997. 11 property. The vendor was Bhargavi Amma and her children. One may refer to that document immediately. The following recitals in Ext.A1 is of some relevance: “കയവകയ പര സ തനതസതയല ഞ ന കവശ വച.......” It makes mention 'ഈടപണയ' also (simple mortgage). The document clearly recites that the possession of the property had been given to the vendee. It is significant to notice that the document also makes mention of the fact that several properties belonging to Okkal Devaswom were outstanding on lease with the family of the vendor. Ext.A2 is dated 2.8.1961 whereby Gopalan transferred his mortgage right in favour of the first defendant. The recital in page 2 is of considerable relevance. It makes mention of the mortgage by Bhargavi Amma and it further states that whatever rights he had over the mortgage property is being assigned to the first defendant. It is significant to notice that there is no mention of the fact that at the relevant time S.A.753/1997. 12 the property was outstanding on lease with the third defendant. Obviously Gopalan could have assigned only what right he had over the property, which is the mortgagee's rights. Ext.A3 is the partition deed in the Chitteth family, by which Bhargavi Amma, the assignor of Achuthan Narayanan, had obtained the property. It is a partition deed in the family and it is stated therein that the properties partitioned are given possession of to the respective sharers and they have to enjoy the property on their own independently. C schedule property was set apart to Bhargavi Amma and her children. A reading of the document also shows that the property belonged to Okkal Devaswom and it was outstanding on 'തനതപണയ .' Ext.A4 dated 14.6.1955 is a document executed by Bhargavi Amma and her children in favour of Gopalan. That is a deed which creates a mortgage in favour of Gopalan. What is important is that when the mortgagor asserts that the property is in their actual possession at the time when the mortgage is being created. S.A.753/1997. 13 15. Now one may refer to the oral evidence in the case. P.W.1 is the grandson of the plaintiff and he is the son of the second defendant. A reading of his deposition would show that he is unable to say the details regarding the devolution of the property etc. But he gives a rough sketch of the property. 16. P.W.2 is a witness, who was examined after the remand of the case and he speaks about the possession of Achuthan Narayanan. He is related to the vendor under Ext.A2. He has properties nearby to the suit property. 17. The third defendant examined himself as D.W.1. He too admits that the jenmi of the property was Okkal Devaswom. According to him, he had taken the property on oral lease on 1959 and he had been paying rent till 1969. Ext.B2 series are the tax receipts showing that tax was paid by him. According to him, Narayanan Namboodiri, the Manager of Okkal Devaswom had given receipts for paying rent. He speaks about the details of the S.A.753/1997. 14 lease and it is significant to notice that these details are conspicuously absent in the written statement. As regards various documents produced by the plaintiff, he pleads ignorance. Even though he initially denied that he had any knowledge about Ext.A2, ultimately he speaks about Ext.A2, by which Gopalan assigned rights to the first defendant. He had also admitted that among the properties which he had partitioned among him and his children, the suit property was not included in the said partition. He speaks about the cultivation done by him in the suit property. It is significant to notice that according to him the rent for the property was two paras and seven edangazhi paddy. 18. It is true that the third defendant has been granted Ext.B1 purchase certificate from the Land Tribunal concerned. The said document was put forward by the contesting defendants in support of their claim. But one must at once notice that the evidence of D.W.1 regarding the oral lease is far from convincing. Even after remand, he did not choose to adduce further oral evidence to show that S.A.753/1997. 15 he had infact obtained the property on oral lease from Okkal Devaswom. He claims to have paid rent till 1969 and speaks about the rate of rent also. One may now have a look at Ext.B1. It shows that it was issued on the basis of a suo motu proceedings initiated by the Land Tribunal, Ernakulam. Ext.B1 does not show the boundaries of the property assigned as per the said document. One may have a look at Ext.X1, which is the proceedings before the Land Tribunal on the basis of which the property has been assigned in favour of the third defendant as per Ext.A1. In the order, it is stated that the rent is 13 paras 6 edangazhi. One may at once here recall the evidence of D.W.1 regarding the rent. The rent mentioned in Ext.X1 file and the rent spoken to by the third defendant have no comparison at all. 19. It is true that in the plaint there is no specific averment regarding the rights obtained by the plaintiffs in respect of the property except for saying that the predecessor in interest obtained the property from Bhargavi Amma and others. But it is significant to notice that in the S.A.753/1997. 16 documents produced by the plaintiff there is recital regarding the actual possession being held by the respective parties. It is here one has to notice Ext.A2 again. That is the document by which Gopalan assigned his mortgage rights in favour of the first defendant. There is no recital therein that the property is in the possession of the third defendant. 20. There is nothing to indicate that the plaintiffs were aware of the suo motu proceedings initiated by the Land Tribunal, which ultimately ended in granting purchase certificate to the third defendant. Except for the testimony of D.W.1, there is absolutely no evidence at all to show that the third defendant had taken the property on oral lease from Okkal Devaswom. There is no document produced by him to show that he had ever obtained possession of the plaint schedule property. Of course the purchase certificate is prima facie evidence of possession. As long as plaintiffs are not parties to the same, it cannot be binding on them. S.A.753/1997. 17 21. The third defendant who was examined as D.W.1 did not feel it necessary to adduce independent evidence to show that the oral lease set up by him is true. 22. It is difficult to believe that in Exts. A1, A3 and A4 the recital regarding possession would have been included with ulterior motive. 23. The trial court had given significance to the recitals of possession in these documents and found that there was no evidence from the side of the defendants at all to show that the third defendant had obtained oral lease of the property. The lower appellate court has omitted to note these vital aspects. Even though it is not specifically stated in the documents produced by the plaintiff that the property was outstanding on lease, there is recital to the effect that possession is held by the respective parties. The lower appellate court found that much importance cannot be given to Ext.B1 purchase certificate. However, the lower appellate court chose to non-suit the plaintiff on the ground that the S.A.753/1997. 18 right derived by her as such has not been mentioned and documents produced by the plaintiff are insufficient to show that they are lessees of the property. If as a matter of fact, they were lessees of the property, it is reasonable to presume that they would have taken some steps to assign it in her favour. But the mere fact that, that is not done cannot be utilised to non-suit the plaintiff. 24. It is felt that the lower appellate court has not considered the documents produced by the plaintiff in the proper perspective and has not evaluated the evidence with reference to the documents produced. A reconsideration at the hands of the lower appellate court is necessary. In the result, the judgment and decree of the lower appellate court is set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court 1.3.2011. The lower appellate court shall make every endeavour to dispose of the suit as expeditiously as S.A.753/1997. 19 possible, at any rate within three months from the date of appearance of the parties. Office to send back the records forthwith. P. BHAVADASAN, JUDGE sb.