IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 LA.App..No. 1446 of 2009() -------------------------- LAR.4/2000 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): CLAIMANTS 4,6-14 AND ADDITIONAL CLAIMANTS 36-51: -------------------------------------------------------------- 1. M.MOHAMMED SALI, VADAKKUTHUNDATHIL PUTHEN VEED, POOVAR, THIRUVANANTHAPURAM. 2. P.FATHIMA VEEVI, VADAKKUTHUNDATHIL PUTHEN VEED, POOVAR, THIRUVANANTHAPURAM. 3. M.A.TAHA, MADATHIL PUTHEN VEED, VALIYAKADA, KOLLAM. 4. M.A.LATHEEFA BEEVI, MADATHIL PUTHEN VEED, VALIYAKADA, KOLLAM. 5. M.A.LAILA BEEVI, MADATHIL PUTHEN VEED, VALIYAKADA, KOLLAM. 6. M.A.SHAHITHA BEEVI, MADATHIL PUTHEN VEED VALIYAKADA, KOLLAM. 7. P.MUHARKHAN, PULIMOOTTUVILAKOM, PUTHEN BUNGLOW, KARAMANA, THIRUVANANTHAPURAM. 8. P.RABIYATH, PULIMOOTTUVILAKOM PUTHEN BUNGLOW, KARAMANA, THIRUVANANTHAPURAM. 9. SAMBABSALIM, PULIMOOTTUVILAKOM PUTHEN BUNGLOW, KARAMANA, THIRUVANANTHAPURAM. 10. SAMBAH ANSAR, PULIMOOTTUVILAKOM PUTHEN BUNGLOW, KARAMANA, THIRUVANANTHAPURAM. 11. ABDUL SAMAD, S/O.LATE SULTHAN KANNU, CHANTHAVILAKATHU VEED, TOLGATE JUNCTION, MANACAUD, THIRUVANANTHAPURAM. 12. SAFARULLA KHAN, S/O.SULTHAN KANNU, CHANTHAVILAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM. 13. AHAMMED KABEER, S/O.SULTHAN KANNU, CHANTHAVILAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM. 14. ABUSALI, S/O.SULTHAN KANNU, CHANTHAVILAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM. 15. MOHAMMED ABDUL KHADER, S/O.SULTHAN KANNU, CHANTHAVILAKATHU VEEDU, MANACAUD, THIRUVANANTHAPURAM. 16. ARIFA BEEVI, W/O.LATE M.MAITHEENKANNU, THUNDATHIL VEEDU, POOVAR, THIRUVANANTHAPURAM. 17. AMNEDKHAN, S/O.LATE M.MAITHEENKANNU, THUNDATHIL VEEDU, POOVAR, THIRUVANANTHAPURAM. 18. FOUSIAKHAN, D/O.LATE M.MAITHEENKANNU, THUNDATHIL VEEDU, POOVAR, THIRUVANANTHAPURAM. 19. K.P.SHAHUL HAMED, S/O.LATE PEERUKANNU, MANNAKKAL PURAYIDOM, VIZHINJAM, THIRUVANANTHAPURAM 20. K.P.SHAJAHAN, S/O.LATE PEERUKANNU, MANNAKKAL PURAYIDOM, VIZHINJAM, THIRUVANANTHAPURAM. 21. K.P.SALIM, S/O.LATE PEERUKANNU, MANNAKKAL PURAYIDOM, VIZHINJAM, THIRUVANANTHAPURAM. 22. K.P.KABEER, S/O.LATE PEERUKANNU, MANNAKKAL PURAYIDOM, VIZHINJAM, THIRUVANANTHAPURAM. (APPELLANTS 19-22 REP. BY THEIR P/A HOLDER SMT.RAMLA, MANNACKKAL PURAYIDOM VEEDU, VIZHINJAM, THIRUVANANTHAPURAM. 23. JASEELA, W/O.LATE SHAHUL HAMMED, M.S.BUNGLOW, OPPOSITE TO TVS, NEERAMANKARA, THIRUVANANTHAPURAM. 24. FABIA, D/O.LATE SHAHUL HAMMED, M.S.BUNGLOW, OPPOSITE TO TVS, NEERAMANKARA, THIRUVANANTHAPURAM. 25. FOUSIA, D/O.LATE SHAHUL HAMMED, M.S.BUNGLOW, OPPOSITE TO TVS, NEERAMANKARA, THIRUVANANTHAPURAM. 26. FATHIMA, D/O.LATE SHAHUL HAMMED, AGED 10 (MINOR), M.S.BUNGLOW, OPPOSITE TO TVS, NEERAMANKARA, THIRUVANANTHAPURAM. (REP. BY HER GUARDIAN AS MOTHER- JASEELA, 23RD APPELLANT) BY ADV. SMT.M.HEMALATHA RESPONDENT(S): ADDITIONAL CLAIMANTS 27,29 - 35: ----------------------------------------------- 1. MYTHEENKANNU AHAMMED KANNU, ASUMA MANZIL, VIZHIJAM, THIRUVANANTHAPURAM. 2. MYTHEEN KANNU KANNU JAWAHARDEEN, ASUMA MANZIL, VIZHIJAM, THIRUVANANTHAPURAM. 3. MOIDEEN KANNU NAZAR MYTHEEN, ASUMA MANZIL, VIZHIJAM, THIRUVANANTHAPURAM. 4. FATHIMA BEEVI SOUDHA, ASMA MANZIL, VIZHINJAM, THIRUVANANTHAPURAM. 5. SOUDHA SAJEENA, ASMA MANZIL, VIZHINJAM, THIRUVANANTHAPURAM. 6. SOUDHA SAFIRA, ASMA MANZIL, VIZHINJAM, THIRUVANANTHAPURAM. 7. SOUDHA SALIHA, AGED 11 (MINOR), ASMA MANZIL, VIZHINJAM, THIRUVANANTHAPURAM. 8. SOUDHA SULTHANA, AGED 9 (MINOR) ASMA MANZIL, VIZHINJAM, THIRUVANANTHAPURAM. (MINOR RESPONDENTS 7 & 8 ARE REPRESENTED THEIR GUARDIAN AND MOTHER THE 4TH RESPONDENT) ADV. SRI.M.RAJASEKHARAN NAYAR FOR R1 TO 6 SMT.K.N.RAJANI FOR R1 TO 6 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.4173 OF 2009 IN L.A.A.NO.1446 OF 2009 DISMISSED. 8.6.2011 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- L.A.A.No.1446 of 2009 ---------------------------------------------------- Dated this the 8th day of June, 2011 Judgment Balakrishnan, J. The judgment impugned in this case was passed by the reference court in a reference made under Section 31(2) of the Land Acquisition Act. An extent of 9.55 Ares of property in Survey No.77/12 of Vizhinjam Village in Neyyattinkara taluk was acquired for the construction of KVFH project at Vizhinjam. A sum of Rs.4,39,332/- being the amount of compensation was deposited in court since there was dispute as to the persons to whom the compensation amount was to be paid. As per the impugned judgment, the court below held that claimant Nos.27 and 29 to 35 are entitled to get the amount in deposit (We are told that now the amount is lying in fixed deposit in a Nationalised Bank). The claim made by the other claimants was rejected. Claimants 4, 6 to 14 and additional claimants 36 to 51 have come up in appeal challenging the decision of the learned Subordinate Judge. 2. Before the court below, Exts.A1 to A16 and Exts.X1 to LAA 1446/09 2 X3 were marked. AW 1, AW 2 and BW 1 were examined. 3. It was not seriously disputed that a total extent of 50 cents in the survey sub-division mentioned above was in the possession of Manisan Pillai Mamman Pillai, the predecessor-in- interest of the appellants. He left behind seven persons as his legal heirs. Some of them died. Their legal heirs were impleaded in the case. Sri.Rajasekharan Nayar, the learned counsel for the contesting respondents (legal heirs of 1st claimant)submit that the appeal is preferred only by the legal heirs of two among the seven legal heirs of late Manisan Pillai Mamman Pillai. Smt.M.Hemalatha, learned counsel for the appellants has taken us through the various mortgage deeds executed by the parties and also to the various judgments in the redemption suits. The fact that Manisan Pillai Mamman Pillai was having title over 50 cents of property including the acquired land measuring 9.55 ares was not disputed. First claimant died in 1994. Claimants 27 to 30 are the legal heirs of deceased 1st claimant. It appears, the mahazar prepared by the Land Acquisition Officer shows that possession was taken from claimant No.1. But that does not mean that other co-owners have no right over the property. The contesting respondents contend that the recitals in Ext.A13 and LAA 1446/09 3 the lease deeds executed by the tenants in respect of the shop buildings situated in the acquired land would show that Maitheen Kannu, one of the sons of Mamman Pillai was in possession of the property. Mr.Rajasekharan Nayar would also submit that out of the seven legal heirs of Manisan Pillai Mamman Pillai, only two of them claimed right/share which according to the learned counsel, would sufficiently indicate that the other legal heirs of Manisan Pillai Mamman Pillai admitted the fact that deceased 1st claimant alone was in actual possession of the property. According to the learned counsel for the appellants, Manisan Pillai Mamman Pillai after redeeming the earlier mortgage was in possession of the property. Out of 50 cents of land referred to above, 12.50 cents was the property purchased by aforesaid Manisan Pillai Mamman Pillai as per sale deed No.4934/1101 M.E. Though a decree was passed for redemption, the execution petition was dismissed and thereafter it became barred by limitation. It is also argued that aforesaid Manisan Pillai Mamman Pillai obtained jenmom right also over the entire 50 cents of property. Out of the aforesaid 50 cents, 8.177 cents of property was stated to have been gifted in favour of a Jama-ath and two cents of land was given to Suhara Beevi as kudikidappu. According to the learned counsel for the LAA 1446/09 4 appellants, the entire remaining property belonged to Manisan Pillai Mamman Pillai and on his death his seven legal heirs (whose names are mentioned in the impugned judgment) inherited the said property and as such the contesting respondents alone cannot claim the entire amount. 4. Strenuous arguments were addressed by Mr.Rajasekharan Nayar to the effect that a perusal of Ext.A13 and other rent deeds would show that the appellants were out of possession and as such they are not entitled to claim any amount as compensation. But this argument has been stiffly resisted by Smt.Hemalatha pointing out that since the property originally belonged to Manisan Pillai Mamman Pillai, unless it is pleaded and proved that the right of any of the legal heirs is barred by ouster and adverse possession, their right cannot be denied. It is also pointed out that no specific plea was putforward by the contesting respondents before the reference court to the effect that the right of the appellants was barred by ouster, adverse possession and limitation. If there is no such plea, the act or possession by one of the co-owners should be treated as the one for and on behalf of other co-owners as well and as such, even if the deceased 1st claimant (being one of the co-owners) LAA 1446/09 5 alone was dealing with the property, that will not rouse any presumption that the other legal heirs were ousted. The court below has not adverted to these aspects, but proceeded on the premise that the first claimant alone was in possession of the property for which he relied upon the rent deeds produced by him. The court below also relied upon the oral evidence adduced by A.W.1 to hold that first claimant alone was in possession of the property and was collecting rent from the tenants of the building situated in the acquired property. Mere oral assertion made by A.W.1 (one of the legal heirs of deceased 1st claimant) is not sufficient to prove ouster and adverse possession. The fact as to how the right of the appellants could be defeated was not adverted to at all. Admittedly, no specific plea was raised that the title of the appellants was lost by ouster, adverse possession and limitation. Since these aspects were not considered by the court below and since there is no specific pleading with regard to the ouster, adverse possession and limitation, we are inclined to set aside the impugned judgment and to remand the matter to the court below to afford an opportunity to both sides to adduce further evidence in the matter. We do so. The contesting respondents, if they want to putforward a plea of ouster, adverse LAA 1446/09 6 possession and limitation would be at liberty to amend their pleadings also. If so, the appellants would also be entitled to file additional written statement. The parties are directed to appear before the court below on 30.06.2011. Refund 75% of the court fee paid on the appeal memorandum to the counsel for the appellants. I.A.No.3317 of 2010 will be transmitted to the Sub Court, Neyyattinkara to be considered by that court in LAR No.4 of 2000. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd LAA 1446/09 7 LAA 1446/09 8