IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 SA.No. 555 of 1994(G) -------------------------------- AS.34/1991 of ADDL. DISTRICT COURT, ALAPPUZHA OS.468/1983 of ADDL. MUNSIFF COURT,ALAPPUZHA .................... APPELLANTS/ RESPONDENTS/ PLAINTIFFS ------------------- 1. K.J.XAVIER, KALARIPARAMBIL, MITHRAKARI MURI, MUTTAR VILLAGE, ALLEPPEY DISTRICT. 2. K.J.DOMINIC, KALARIPARAMBIL, MITHRAKARI MURI MUTTAR VILLAGE, ALLEPPEY DISTRICT. 3. JOSEPH, S/O. OUSEPH, KALARIPARAMBIL, MITHRAKARI MURI, MUTTAR VILLAGE, ALLEPPEY DISTRICT. BY ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.HARIKRISHNAN RESPONDENTS: APPELLANTS/DEFENDANTS ----------------------- 1. T.K.RAGHAVAN NAIR, THIRUMANASSERI VEEDU, OORUKKARI MURI, KOZHIMUKKU VILLAGE, ALLEPPEY DISTRICT(DIED) 2. T.K.NARAYANAN NAIR, THIRUMANASSERI VEEDU, OORUKKARI MURI, KOZHIMUKKU VILLAGE, ALLEPPEY DISTRICT (DIED) THE LEGAL REPRESNTATIVES OF DECEASED IST RESPONDENT. ---------------------------------------------------------------------------------------------- ADDL.R3. T.R.SREEKUMARAN NAIR (APPUKUTAN), THEBBE THIRUMANASSERY, OORUKKARI, OORUKKARI P.O., ALAPPUZHA. THE LEGAL REPRESENTATIVES OF DECEASED IST RESPONDENT ARE IMPLEADED AS ADDITIONAL 3RD RESPONDENT AS PER ORDER DT. 15.1.08 IN IA. 1635/2007. SA. NO.555/1994 THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ------------------------------------------------------------------------------------------------ ADDL.R4:- T.N.RADHAKRISHNAN NAIR, THIRUMANASSERY, OORIKKARI, OORIKKARI P.O., ALAPPUZHA. THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DT. 15.1.08 IN IA.1636/2007. BY ADV. SRI.P.R.VENKETESH - R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO.555 OF 1994 =========================== Dated this the 12th day of February, 2008 JUDGMENT Plaintiffs in O.S.468/1983 on the file of Munsiff Court, Alappuzha are the appellants. Defendants are the respondents. Appellants instituted the suit for declaration of their title, possession and permanent prohibitory injunction. Plaint schedule property is about 4 cents in extent in survey No.188/1A of Kozhimukku Village of Kuttanad taluk which is part of 9.02 acres. According to appellants, 9.02 acres known as noottirupathum padam lying as a separate block and the property was obtained on lease hold right by appellants. Subsequently they purchased jenm right from the Land Tribunal evidenced by Ext.A2 purchase certificate. It was contended that on all the sides of the paddy field, there are chiras (banks) where coconuts are planted and a portion of Noottirupatham padam is lying on the southern side S.A.555/1994 2 of Thirumanassery purayidom also and on the side of this portion there exists the motor and the accessories and on the eastern side of padasekharam there is a muttuthodu which originates from main thodu which lies on the southern side and it is a chira on the northern side of padasekharam lying east west and on the eastern side of padasekharam lying east west there are yielding coconut trees and on the northern side of Thirumanassery purayidom there is a pond and there exists a chira around the banks of the pond and this portion of Thirumanassery purayidom is projecting to the eastern side and is in the possession of the Parvathi Amma the sister of respondents and they are in possession of the southern side of Thirumanassery purayidom. There exist another muttuthodu abutting the property in the possession of respondents and the said muttuthodu is starting from the muttuthodu lying on the southern side and terminates at the pond owned by Parvathi Amma. The eastern side of the said muttuthodu is a chira S.A.555/1994 3 which is the as plaint schedule property and on the south eastern side of the chira is the methikalam owned by appellants and plaint schedule property forms part of the entire paddy fields owned by appellants and respondents have no manner of right or possession over the said property. On 24.6.1983 appellants planted 30 plantains. They were forcibly removed by respondents two days thereafter. Appellants filed a complaint before the police authorities. Respondents have claimed right in the property. Hence suit was filed for declaration of title and injunction. Respondents in the written statement contended that plaint schedule property does not form part of the paddy field owned by appellants and plaint schedule chira is owned by respondents and they obtained right to the property by virtue of partition deed 982/1955 (Ext.B5), Ext.B4 partition deed 2354/1957 and Ext.B3 sale deed of 1983 and appellants have no right or possession to the plaint schedule chira and therefore they are not entitled to the decree S.A.555/1994 4 sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws. 1 to 4, Exts.A1 and A2, Exts.B1 to B6 , C1 to C3 granted a decree in favour of appellants declaring their right title and possession to the plaint schedule property restraining respondents from trespassing into the plaint schedule property. Respondents challenged the judgment before District Court, Alappuzha in A.S.34/1991. Learned Additional District Judge on reappreciation of evidence found that appellants did not produce the lease deed by which the properties were obtained and if that document was produced it would have thrown light into the controversy and for its non production an adverse inference has to be drawn. Learned District Judge also found that western boundary of the property obtained under Ext.A1 is Mankuzhi Chempothuparambu and Thirumanassery paddy field and evidence establish that in between mankuzhi Chempothuparambu and Thirumanassery there are three paddy fields and S.A.555/1994 5 based on the boundary in Ext.A1 appellants cannot claim title to the disputed chira. Finding that Ext.B3 sale deed shows that the disputed chira forms part of the property of respondents, learned District Judge set aside the decree and dismissed the suit. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1. When Ext.A1 establish the title of appellants, whether first appellate court was justified in not relying on Ext.A1 in view of Section 72K of Kerala Land Reforms Act. 2. Whether first appellate court was justified in drawing an adverse inference against appellants for non- production of the lease S.A.555/1994 6 deed when Ext.A1 purchase certificate was produced. 3. Whether on the evidence first appellate court was justified in holding that plaint schedule property does not form part of the property belonging to appellants under Ext.A1 purchase certificate. 4. Learned counsel appearing for appellants and respondents were heard. 5. The dispute in the appeal is with respect to the plaint schedule property which is a chira having an extent of about 4 cents, which lies to the west of the admitted paddy fileds of appellants and east of the admitted purauyidom of respondents. Respondents admittedly obtained the property which lies to the east of the plaint schedule property comprised in R.S.187/18 under S.A.555/1994 7 Ext.B3 sale deed. The right obtained under Ext.B3 is the right which was allotted to the assignor thereunder, under Ext.B4 partition deed which in turn was the right which was available to him under Ext.B5 partition deed. Learned Munsiff on the evidence found that plaint schedule property forms part of the lease hold property obtained by appellants and its jenm right was subsequently purchased from the Land Tribunal under Ext.A1 purchase certificate. First appellate court found fault for not producing the lease deed, though Ext.A1 purchase certificate was produced then relying on Ext.B3 sale deed where, the right over the plaint schedule chira was claimed by respondents it was found that the disputed chira does not form part of the property obtained on lease by appellants. The argument of learned counsel appearing for appellants is that the finding of first appellate court is erroneous and under Ext.B4 and B5 all the properties available were divided between the co-owners and no property S.A.555/1994 8 was left common as undivided. Therefore at the time assigning a portion of the property divided under Ext.B4, the plaint schedule chira could not have been referred as the property which was left undivided at the time of the partition. Learned counsel also argued that as per Ext.B3 the property obtained by respondents is only in R.S.187/19 and the said property is the property which lies to the west of the disputed chira, as the eastern boundary shown is the chira and under Ext.B3 respondents cannot claim any right over the disputed chira. It was also argued when the entire properties were divide under Ext.B4 and B5, it is improbable that a strip of land which constitute only a chira would be left undivided and recital about the chira, as the property which was kept undivided in Ext.B3 is made just prior to the institution of the suit to raise a false claim and first appellate court was not justified in relying on the said recital in Ext.B3. It was also argued that the eastern boundary of the S.A.555/1994 9 property which was divided under Ext.B5 and later under Ext.B4, is the paddy fields belonging to appellants under Ext.A1 purchase certificate and not any chira and first appellate court was not justified in interfering with the decree granted by the courts below. It was also argued that it is admitted by DW1 that there is no document to show that they have any right over the disputed chira and that paddy fields of the appellants are surrounded by chiras on all the sides and so the disputed chira forms part of the paddy fields. It was argued that evidence establish that the chiras are constructed for the purpose of cultivation of the paddy fields and not for purauyidom and when the property of respondents is purayidom and so there is no necessity for retaining a chira for the purayidom and all these facts probablise the case of appellants that plaint schedule property forms part of the property covered under Ext.A1. Learned counsel also argued that first appellate court was not S.A.555/1994 10 justified in drawing an adverse inference for the non-production of the lease deed when purchase certificate was produced and that too when no application was filed by respondents for a direction to appellants to produce the lease deed and adverse inference should not have drawn for the lease deed and appellants are entitled to the decree for declaration of title and possession. Learned counsel appearing for respondents argued that when cross examined PW1 admitted that there is no document to show the right or title of the appellants to the plaint schedule property and Ext.A1 does not establish the title to the plaint schedule property and therefore first appellate court rightly found that appellants are not entitled to the decree sought for. 6. Though appellants did not produce the lease deed which was admittedly executed and by which the undisputed property was obtained by appellants on lease they produced Ext.A1 purchase certificate which establish that they were granted S.A.555/1994 11 purchase certificate in respect of 9.02 acres in survey No.188/1A and 1B. Ext.C1 report and Ext.C2 plan submitted by the Commissioner establish that the disputed chira which is marked in red shaded colour forms part of R.S.No.188/1A. It is not disputed that the property which belong to respondents is in R.S.187/19. If the plaint schedule property forms part of R.S.No.188/1A, appellants have title to the said property under Ext.A1 and respondents cannot claim title to the property. 7. The evidence establish that the property obtained by appellants on lease was the paddy field by name noottirupathum padam which forms part of padasekharam. That fact was not disputed. It is also admitted case that on all four sides of the paddy field there are chiras where coconut trees are planted. The chiras form part of the paddy fields. The disputed plaint schedule chira forms part of the western portion of paddy fields, which lies immediate to the east of the purayidom S.A.555/1994 12 of respondents. Learned District Judge relied on Ext.B3 to find that appellants have no title to the disputed plaint schedule property. It was based on the recital in Ext.B3 that the eastern boundary of that property is chira which was described as kept undivided at the time of the earlier partition. As rightly argued by learned counsel appearing for appellants, unfortunately first appellate court did not properly appreciate Ext.B3 in the light of Ext.B4 and B5. As stated earlier, the assignor under Ext.B3 obtained the property conveyed under Ext.B4 partition deed. The property divided under Ext.B4 is the property, which was obtained by the assignor and others under Ext.B5 partition. Both Exts.B4 and B5 show that the eastern boundary of the property, which was subsequently assigned under Ext.B3, is the property which lies immediate to the west of the paddy fields belonging to appellants. If in fact a portion of the properties was left undivided at the time of Ext.B5 partition or S.A.555/1994 13 Ext.B4 partition, it would have been specifically mentioned in Ext.B5 or B4 partition deeds. The conspicuous absence of such a recital in Exts.B4 and B5, establish that no property was left undivided at the time of the partitions. Moreover, it is not at all probable that a strip of land, which forms a chira alone, would be left undivided at the time of Ext.B5 partition and also subsequently under Ext.B4 partition, when all the remaining properties were divided. As rightly pointed out by learned counsel for appellants the recital about the chira, as kept undivided at the time of partition in Ext.B3 sale deed could only be made with ulterior motive, especially when it was just prior to the suit. Moreover, what is shown under Ext.B3 is that the property assigned thereunder is the property which lies to the west of the eastern chira. So Ext.B3 does not take in the chira also. Therefore under Ext.B3 respondents cannot claim any right over the chira. At best it could be said that the chira S.A.555/1994 14 was left undivided and available to the sharers. But as stated earlier if it was left undivided, it would have been mentioned in Exts.B4 and B5. When Exts.B4 and B5 show that the entire properties were divided, the recital in Ext.B3 to the contrary cannot be relied on at all. Therefore first appellate court was not justified in interfering with the finding of the trial court based on the recitals in Ext.B3. 8.On appreciating the entire evidence the trial court rightly found that plaint schedule property forms part of the paddy fields obtained by appellants on lease and comprised in R.S.188/1A and 1B. When the report submitted by the Commissioner after proper identification establish that the disputed plaint schedule property is part of survey No.188/1A and appellants have title to the said property under Ext.A1, the non-production of lease deed by appellants is not very material. Even if that lease deed was produced, it would not have thrown light into the controversy because S.A.555/1994 15 the properties would have been described only as paddy fields comprised in survey No.188/1A and 188/1B and it would not have helped the court to decide the question of title to the disputed chira. Therefore first appellate court was not justified in drawing an adverse inference for the non-production of the lease deed especially when appellants never asked appellants to produce the said document. 9. Appreciating the entire evidence, it is absolutely clear that first appellate court did not properly appreciate the evidence, when the trial court on proper appreciation of evidence rightly found that plaint schedule property forms part of the leasehold property and under Ext.A1 appellants have title and possession to the said property. First appellate court was not justified in interfering with the decree granted by the trial court. The appeal is allowed. The judgment of the first appellate court in A.S.34/1991 is set aside. S.A.555/1994 16 The decree and judgment of the trial court are restored. No costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.555 /1994 --------------------- JUDGMENT 12TH FEBRUARY,2008