IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 AS.No. 427 of 1999() -------------------- OS.8/1997 of DISTRICT COURT, LAKSHADWEEP .................... APPELLANTS/SUPPL. DEFENDANTS 6 TO 16 IN OS: ------------------- 1. SHEKKINTAVEETTIL KUNHIBI, D/O. KOYAMMAKOYA THANGAL, AGED 42 YEARS. 2. SHEKKINTAVEETTIL CHERIYA KOYA THANGAL, AGED 36 YEARS. 3. UMMABI, SHEKKINTAVEETTIL, D/O.KOYAMKOYA THANGAL, AGED 26 YEARS. 4. SHEKKINTAVEETTIL MOHAMMED KHALEEL, S/O.KOYAMMAKOYA, AGED 31 YEARS. 5. JAMEELABEEBI. 6. RAMLA BEEGUM, PUTHIYA ILLATHUPURA FATHIMA BUILDING. 7. RASEENAL BEEGUM, FATHIMA BUILDING. 8. MOHAMMED MASHOOD. 9. MOHAMMED SAMEEL. 10. THAHIRA BEEGUM. 11. MUMTHAZ BEEGUM. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENTS/PLAINTIFFS, DEFENDANTS 1 & 2 AND SUPPL. DEFENDANT No.5: --------------------- 1. KOMALAM PATHUMMABI, D/O. HAJEE P.A., NALLAKOYAL THANGAL, AGED 51 YEARS. 2. KOMALAM AYASHABI, D/O. HAJEE P.A., NALLAKOYA THANGAL, AGED 39 YEARS. =2= A.S.NO.427/99 3. UNION OF INDIA REPRESENTED BY THE SECRETARY, HOME AFFAIRS, SECRETARIAT, NEW DELHI. 4. THE ADMINISTRATOR,UNION TERRITORY OF LAKSHADWEEP, ' KAVARATTI. 5. SHEKKINTAVEETTIL AYSHUMMABI, D/O. KODAT SAYED KOYA -DO- -DO- ADV. SRI.S.RADHAKRISHNAN FOR R4 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ALONG WITH AS NO. 445 OF 1999 ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.3710/99 IN A.S.NO.427/99 ------------ Dismissed 01/03/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NOS.427 & 445 OF 1999 -------------------------- DATED THIS THE 1ST DAY OF MARCH, 2010 JUDGMENT The legal heirs of the deceased 3rd defendant are the appellants in A.S.No.427/99. Defendants 1 and 2 are the appellants in A.S.445/99. Both these appeals arose from O.S.No.7/89 (renumbered as O.S.No.8/97) on the file of the District Court, Lakshadweep. The suit was filed by the two plaintiffs/respondents for perpetual injunction restraining the defendants 1 and 2 and their men from trespassing into the suit property and from causing loss or damages to the improvements and from interfering with the peaceful possession and enjoyment of the property by the plaintiffs. The suit was amended and an alternative prayer for recovery of possession was also added. The court below decreed the suit granting perpetual injunction as prayed for. Aggrieved by the judgment and decree, the defendants have preferred separate appeals. The parties hereinafter are -2- A.S.Nos.427 & 445/99 referred to plaintiff and defendants as arrayed in the suit. 2. The subject matter of the suit is 6.3 ares of land in Sy.No.196/7 of Androth Island. The lst defendant is the Union of India and the 2nd defendant is the Administrator, Union Territory of Lakshadweep, Kavaratti. The suit property is 2.90 ares of land which is a portion of the larger extent having 6.3 ares. The plaintiffs' case is that the plaint schedule property, namely, 2.90 ares of land of the Androth Island belongs to the plaintiffs' tharwad. The property was in the ownership, possession and enjoyment of the tharwad under its karanavan. The remaining extent of the property in the same survey number belongs to the 3rd defendant's tharwad by name “Shekkinteveettil Tharwad”. It is averred in the plaint that the land was jointly in the names of Komalam Nallakoya Thangal (predecessor of the plaintiffs) and Shekkinteveettil Pookoya Thangal (Karnavan of the 3rd defendant tharwad). The suit property is enjoyed by plaintiffs 1 and 2. The coconut trees in the property were divided between plaintiffs 1 -3- A.S.Nos.427 & 445/99 and 2. It is the plaintiffs' case that on 8/3/99 the 2nd plaintiff's husband saw some construction works going on in the adjacent property in the possession of the 3rd defendant's family by workers from the Public Works Department and on enquiry he came to know that the 3rd defendant had transferred the property including the plaint schedule property belonging to the plaintiffs to defendants 1 and 2. It is contended that the 3rd defendant had no right, title or possession over the property and therefore she had no right to alienate the plaint schedule property. The 3rd defendant alienated the entire property, namely, 6.3 ares including the plaint schedule property (2.90 ares) to the Central Government by document No.70/86 produced as Ext.A4. In the above circumstances, the suit was filed to restrain the defendants including the officers of the Central Government from entering into the suit property or cutting down the trees or improvements standing thereon. 3. The stand of the defendants 1 and 2 is that the entire -4- A.S.Nos.427 & 445/99 property in Sy.No.196/7 having an extent of 6.3 ares belonged to the Central Government by virtue of Ext.A4 sale deed No.70/86 executed by the 3rd defendant and since then the Government is in possession and enjoyment of the property. The Government needed some extent of land for implementing the Water Supply Scheme at Androth Island and for the purpose of implementing the said scheme they have purchased by negotiation some properties including 6.3 ares in Sy.No.196/7. Before purchasing the same, they obtained consent of the land owners in respect of 6.3 ares of land in Sy.No.196/7. It is further contended that the Government obtained consent of the 3rd defendant and after negotiation of the price, consideration was paid to the 3rd defendant. It is also stated in the written statement that before payment of sale price notice was published calling objections, if any, and having no objection filed by anyone, the properties were taken by the Government paying the price. 4. The 3rd defendant maintained the stand that the entire -5- A.S.Nos.427 & 445/99 6.3 ares of land in Sy.No.196/7 is possessed, enjoyed and owned by the 3rd defendant's tharwad and therefore the 3rd defendant has got every right to transfer the property. She contended that Ext.A4 sale deed executed in favour of the Government is valid and the same was executed, after receiving valid consideration. She also maintained the stand that the plaintiffs have no ownership, possession or enjoyment of the plaint schedule property and that the property was enjoyed by her and her tharwad till Ext.A4 sale deed was executed in favour of the Government. 5. Both sides adduced evidence in support of their respective contentions. The husband of the 2nd plaintiff was examined as PW1. Exts. A1 to A7 were marked on the side of the plaintiffs. The Sub Divisional Officer, Androth was examined as DW1 and the son of the 3rd defendant was examined as DW2. Exts.B1 to B5 were marked on the side of the defendants. The court below deputed a Commissioner and the Commissioner filed Exts.C1 report and C2 plan. -6- A.S.Nos.427 & 445/99 6. The land in Sy.No.196/7 having 630 sq. metres (6.3 ares) was surveyed in the name of two persons each from the tharwad of plaintiffs and the 3rd defendant. Ext.A1 is the copy of the extract of land register which shows that the property stands in the name of the predecessors-in-interest of the plaintiffs' tharwad and 3rd defendant's tharwad. Ext.A1 is the only document relied on by both sides to prove that portions of the property belong to and are in their possession. Plaintiffs' case is that 2.90 ares out of 6.3 ares with the improvements therein belongs to and is in their possession. Though the 3rd defendant contended that the entire extent is in their possession and enjoyment till the execution of Ext.A4 sale deed, paragraph 6 of the written statement shows that they are in possession of only a portion of the property in Sy.No.196/7. The relevant portion of paragraph 6 of the written statement reads as follows: ''The statement in para 3 that property in Sy.No.196/7 of Androth Island is the ancestral property of the plaintiffs' tharwad is wrong and -7- A.S.Nos.427 & 445/99 false. The plaintiffs have ownership and possession of a portion of the property in that survey number. This defendant's tharwad also owned and possessed a portion of the land in the same survey number which was devolved on this defendant and later transferred to the 2nd defendant under document No.70 of 1986 of S.R.O., Androth.........'' 7. The above statement shows that both the plaintiffs' tharwad and defendant's tharwad are having ownership and possession over the property having a larger extent of 6.3 ares. In the above extracted portion, the 3rd defendant admitted that both tharwads are having ownership and possession of land in Sy.No.196/7. The 3rd defendant admitted that she has right over a portion of the land in Sy.No.196/7 and in fact that portion was sold in favour of the 2nd defendant. The Commissioner in Ext.C1 reported that the portion of the property marked as 'A' is in the possession and enjoyment of the plaintiffs and the portion of the property marked as 'P' is originally in the possession and enjoyment of the 3rd defendant and subsequent to the execution of -8- A.S.Nos.427 & 445/99 Ext.A4, constructions were made by the 2nd defendant. The Commissioner also noted that there is a compound wall separating A and P schedule properties. PW1, who had tendered evidence on behalf of the plaintiffs, testified before the court below in terms of plaint and relied on Exts.C1 report and C2 plan. He has also relied on Exts.A3 and A5 documents in support of their case. Ext.A3 is the copy of the decree in O.S.No.2/77. Ext.A2 is a suit for partition between the members of the plaintiffs' tharwad. Item No.29 in Ext.A3 decree is 6.3 ares of land in Sy.No.196/7. 8. PW1 also testified before court below that the plaintiffs are in possession and enjoyment of 2.90 ares and the balance extent is in the possession and enjoyment of the 3rd defendant's tharwad. The court below relied on Ext.A1 land register, Ext.A3 decree, Ext.A5 application and the evidence of PW1and rightly held that the plaint schedule property belongs to the plaintiffs' tharwad 'Komalam'. 9. It is true that Ext.A4 sale deed was executed by the -9- A.S.Nos.427 & 445/99 3rd defendant in favour of the 2nd defendant for the entire extent in Sy.No.196/7. The 3rd defendant had sold the right, title and interest over the entire extent of property to the Government of India represented by its Administrator, Union Territory of Lakshadweep under Ext.A4. The defendants failed to prove that the entire extent in Sy.No.196/7 belongs to the 3rd defendant or her tharwad and that the 3rd defendant had exclusive alienable right in the whole property or that she was in possession and enjoyment of the same. Though the 3rd defendant's tharwad owns only a portion of the property, she had executed the sale deed covering the portion belonging to the plaintiffs as well. She had no right to alienate the portion belonging to the plaintiffs' tharwad. There is categorical admission of the 3rd defendant in the written statement that a portion of property in Sy.No.196/7 belongs to the plaintiffs' tharwad. It is also pertinent to note that the Government purchased the property from the 3rd defendant. Ext.A7 register which is the only document to prove the title to the land, was not perused and -10- A.S.Nos.427 & 445/99 not acted upon before the sale deed was executed. Going by Ext.A1 extract of land register the total extent of 6.3 ares was surveyed in the name of the two families. Ext.A1 is the only document relied on by the plaintiffs and the 3rd defendant to show that a portion of the property belongs to and is in the possession of the parties. The court below also examined the oral evidence tendered by the parties and the Commissioner's report and found that the trees in plot A marked in Ext.C2 plan are in the possession and enjoyment of the plaintiffs in the suit. The court also found that the defendants are unable to prove that they are taking yield from the plaint schedule property. Though the sale deed was executed in the year 1986, the defendants 1 and 2 were unable to produce any materials to show that the income from the property is collected by them. 10. The evidence adduced also shows that another extent of land belonging to the 3rd defendant's family was also alienated by her to the Government for the purpose of -11- A.S.Nos.427 & 445/99 implementation of the water supply scheme. The court below, in the facts and circumstances of the case, held that the plaintiffs are entitled to the relief of injunction as prayed for. The court below observed that the 2nd defendant may take appropriate steps for recovery of the portion of the amount from the 3rd defendant or her legal representatives, which was paid in excess of the amount due to the 3rd defendant. The grant of relief by the court below is appropriate, in the circumstances discussed above. I do not find any reason to interfere with the judgment and decree passed by the court below. In the result, the judgment and decree passed by the court below in O.S.No.8/97 are confirmed and the appeals are dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -12- A.S.Nos.427 & 445/99 HARUN-UL-RASHID,J. -------------------------- A.S.NOs.427 & 445 OF 1999 -------------------------- JUDGMENT 1st March, 2010