IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 AS.NO. 83 OF 1998(A) -------------------- OS.130/1987 OF SUB COURT, HOSDRUG .................... APPELLANT(S)/ DEFENDANTS 1 TO 3: ------------------------------------------- 1. KINATTUNGARA AMBADY, S/O NIDUNGAI RAMAN, RESIDING AT KARIANGODE, CHATHAMATH IN NILESHWAR VILLAGE OF HOSDRUG TALUK, POST CHATHAMATH. 2. KUDUKKIL AMBUNHI, S/O CHERAMMAL POKKAN, RESIDING AT PARAKOLE, AREEKKARA IN KARINDOLAM VILLAGE OF HOSDRUG TALUK, POST KARINDOLOM. 3. P. MADHAVI, W/O KINATTUNGARA AMBADY, RESIDING AT KARIANGODE, CHATHAMATH IN NILESHWAR VILLAGE OF HOSDRUG TALUK, POST CHATHAMATH. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON RESPONDENT(S)/ PLAINTIFFS & DEFENDANTS 4,5 AND 6: ------------------------------------------------------------------------ 1. THEKKE VALAPPIL CHIRUTHA ALIAS CHEMMARATHY, AGED 68 YEARS, W/O LATE PATHRAVALAPPIL KUNHIRAMAN, RESIDING AT CHATHAMATH IN NILESHWAR VILLAGE OF HOSDRUG TALUK, POST CHATHAMATH. 2. THEKKE VALAPPIL BALAKRISHNAN, AGED 45, S/O THEKKE VALAPPIL CHIRUTHA ALIAS CHEMMARAHY, RESIDING AT CHATHAMATH IN NILESHWAR VILLAGE OF HOSDRUG TALUK, POST CHATHAMATH. 3. THEKKE VALAPPIL PRASANNA, AGED 39, D/O D/O. RESIDING AT DO. DO. 4. THEKKE VALAPPIL LALITHA, AGED 36, D/O D/O. RESIDING AT DO. DO. 5. THEKKE VALAPPIL CHANDRANGATHAN, AGED 42, S/O THEKKE VALAPPIL CHIRUTHA @ CHEMMARATHY, RESIDING AT 2576002, H.Q. COY SIG. SEET. MADRAS – 16. C/O. 99 A.P.O. 6. VANNATHAN VALAPPIL MATTUMMAL MADHAVI, W/O LATE PATHRA VALAPPIL KUNHIRAMAN, RESIDING AT PONDIYIL IN KARIMDALOM VILLAGE OF HOSDRUG TALUK, POST KARINDALAM. 7. NARAYAN, S/O LATE PATHRAVALAPPIL KUNHIRAMAN AND MADHAVI, RESIDING AT PODOTHURUTHY IN PEROLE VILLAGE OF HOSDRUG TALUK, POST KARINDALAM. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SMT.SUSEELA R.BHATT FOR SRI.K.JAYAKUMAR FOR R5 SRI.P.B.KRISHNAN FOR R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 83 OF 1998 = = = = = = = = = = = = = = = Dated this the 1st day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Hosdrug in O.S.130/87. The suit is one for recovery of possession on the strength of title with respect to 5 acres and 50 cents of land, i.e. 2 acres and 62 cents in S.N.No.110/1D, 2.33 acres in 110/1B and 15 cents in Sy.No.111/1. The property belonged to Veerabhadra Devaswom and it is the case of the plaintiffs that one Kumbachi obtained lease of the property by virtue of Ext.B16 with respect to 2 acres of land and on 12.5.61 by virtue of Ext.A1 Kumbachi assigned these two acres plus another 3.50 acres alleged to be orally taken on lease of by her in favour of one Kunhiraman and A.S. 83 OF 1998 -2- Kunhiraman permitted her to reside in the house. The plaintiffs and D4 are the wife and children of Kunhiraman. Therefore the plaintiffs are claiming right over the property through Kunhiraman and seeks recovery of possession on the strength of title. Defendants on the other hand would contend that the property having an extent of 3.50 acres of land was obtained on oral lease by one Kottan husband of Kumbachi and he had obtained a certificate of purchase in the year 1977. He had executed a gift in favour of Kumbachi and D1 in the year 1980 and Kumbachi in turn had transferred her half right in the property in favour of D3 on 15.11.83 by Ext.B12. According to the defendants the property of two acres covered by Ext.B16 was taken on lease by Kumbachi and one Acha together and Kumbachi died issueless and her right had devolved upon Acha. A.S. 83 OF 1998 -3- It is their contention that this Acha sold the property to D1 under Ext.B17 and thereby the defendants are entitled to get absolute right over the property. So in short the plaintiffs are claiming right over the property through Kumbachi and the defendants are claiming right over 3.50 acres of property from Kottan and two acres through Kumbachi and Acha. So the point that arises for determination is who is having better title to the said property. 2. It is to be stated that in a civil litigation for recovery of possession on the strength of title the plaintiff has to succeed on his own document and cannot succeed on the loopholes or weakness of the defendant's case. Now I had perused the document made available in this case. Both the sides had produced the certificate of purchase and I may state that the A.S. 83 OF 1998 -4- certificate of purchase fades to significance because such a certificate can be issued only on the basis of title to the property and as both the parties are not claiming tenancy directly under the Devaswom, the certificate of purchase has to be read along with other basic documents entitling to have the property. Ext.A1 is a registered copy of the assignment executed by Kumbachi in favour of Kunhiraman, the predecessor in interest of the plaintiffs and 4th defendant. Ext.A2 is the receipt alleged to be issued for payment of rent in 1970. Exts.A3 and A4 are the certified copies of the orders of the Land Tribunal and certificate of purchase. The other documents are evidencing the payment of revenue etc. Ext.B1 is a document executed by the executive officer of Veerabhadra Devaswom in favour of Abraham and others. It is of the year A.S. 83 OF 1998 -5- 1942 registered as document No.1118/1942. It is executed in favour of one Abraham. A perusal of the said document would reveal that large items of property had been assigned in favour of this person and the particular property which we are concerned is Sy.No.110. There is a clear recital in the schedule to the document that out of the total extent of 97.69 acres 14 acres and 63 cents are outstanding with the tenants. It is this Abraham who assigned the property in favour of one Kunhmabu by Ext.B2 document No.3476/51. There also there is a clear recital to the effect that 14 acres and 63 cents out of large extent of property is outstanding with the tenants as on that date. So Exts.B1 and B2 would reveal that 14 acres and 63 cents of property comprised in Sy.No.110 was outstanding with the tenants on the date of execution of A.S. 83 OF 1998 -6- Ext.B1 as well as Ext.B2. Now with respect to 3.50 acres of land both the parties are relying on oral lease set up in favour of Kumbachi or Kottan. With respect to 2 acres there is a document executed by Kumbachi and Acha in favour of Devaswom. So there is some property taken on lease by Kumbachi and Acha on lease is evidenced by Ext.B16 document. But the question on the death of Kumbachi on whom does the property devolves is a matter that will decide the question with respect to her half right over the property. Unless Acha had surrendered her right in favour of Kumbachi one cannot hold that she will get absolute right over the property. It is true that claiming to be the absolute tenant of the property Kumbachi had executed a document and it is with respect to two acres. But it is a well settled principle that one cannot dispose A.S. 83 OF 1998 -7- of more than what one has. Therefore it is a matter that requires consideration since the suit is one on the basis of title. Learned Subordinate Judge has not properly considered the matter in this case. 3. Now the next question is about the 3.50 acres of land. If the property is taken on lease by Kumbachi as contended by the plaintiffs, necessarily the plaintiffs would have title to the property. On the contra if the lease is taken by Kottan the defence case appears to be probable. So the basic approach to the case in order to solve the controversy between the parties is to find out who was the lessee of the property under the Devaswom and when an answer is given to the same it will decide the title of the property. Unfortunately it has not been highlighted before the Court in A.S. 83 OF 1998 -8- that fashion and sufficient documents are also not produced to convince the conscience of the Court on that point. In a suit for recovery of possession on the strength of title it is desirable that parties are given liberty to establish the same. Therefore the judgment and decree of the trial court calls for interference and it is set aside and the case is remanded back to the trial court for the following. (1) With respect to two acres claimed under Ext.B16 the Court shall conduct an enquiry with respect to the right of Acha as well and as to who were the legal representatives of deceased Kumbachi. This will give an answer to the question whether Kumbachi can assign the entire 2 acres and whether Acha has absolute right to transfer it to the defendants. A.S. 83 OF 1998 -9- (2) With respect to 3.50 acres of land parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions to find out whether Kumbachi was the lessee of the property or Kottan was the lessee of the property. (3) On answering these points the Court can find out who is having better title to the property and let the matter be disposed of in accordance with law. (4) Parties are directed to bear their respective costs in the appeal. They are directed to appear before the trial court on 2.8.2010. M.N. KRISHNAN, JUDGE. ul/- A.S. 83 OF 1998 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 83 OF 1998 = = = = = = = = = = = J U D G M E N T 1st July, 2010.