IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 444 of 2006()
1. C.SUBBIAH, SON OF CHELLIAH,
... Petitioner
2. VEERIAH, SON OF CHELLIAH,
Vs
1. PAPPACHAN.K.ELENJICKAL,
... Respondent
For Petitioner :SRI.SATHISH NINAN
For Respondent :SRI.P.N.RAMAKRISHNAN NAIR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :05/04/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.444 of 2006
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Dated this 05th day of April, 2010
JUDGMENT
The following substantial questions of law are framed for a
decision:
(i)When a suit or counter claim is made seeking a
declaration of title and recovery of possession is not the
plaintiff/counter claimant bound to establish his title.
(ii)Without producing the original title deed and without
having any valid explanation for non production of
original title deed was the Court justified in relying on
the copies produced which are inadmissible in evidence
to declare title.
(iii)When identity of the property claimed by the plaintiff
is not disputed and that admittedly the defendants
documents have no clear boundary descriptions of the
property claimed can the counter claim be allowed?
(iv)Can the patta issued by the Tahsildar be valid as a valid
title deed in respect of a property in the Kannan Devan
Hills Village in the light of provisions in Kannan Devan
Hills (Resumption of Possession of lands) Act?
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These questions arise in this second appeal preferred by
appellants/plaintiffs challenging concurrent finding entered by the
courts below, consequent dismissal of the suit and decree in the
counter claim. The dispute concerns about a cent of land situated
towards the southern portion of the property admittedly belonging to
the respondents, both items comprised in survey No.62/28A of
Kannan Devan Hills Village. Appellants claimed that they are in
possession of the suit property since the last 35 years where
appellant No.2 is running a petty shop since 1975 onwards. The suit
property has been assessed by the Panchayath for
building/professional tax purposes. Appellant No.2 has another shed
in the suit property to store firewood. On the east of the suit property
is the soil cutting and wire fencing. On the further east, it is the
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property of Central Government. Alleging that respondent tried to
trespass into the suit property and open up a pathway, appellants
filed the suit for a decree for prohibitory injunction. Respondent
while resisting the suit made a counter claim. He claimed that he has
right, title, interest and possession over 12.830 cents in survey
No.62/28A (counter claim A schedule property) as per gift deed
No.1809 of 1985 executed by his father who in turn got it from the
KDH Private Limited Company in the year 1977 and that the suit
property (counter claim B schedule property) forms its southern
portion. The suit property and the rest of the property belonging to
the respondent on the north lie contiguously. Respondent obtained
patta issued by the Tahsildar on 09-10-1995. The southern portion of
the said 12.830 cents was left by the respondent to be used as car
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parking area for the multi storied building constructed by him. It is
not true that appellants are in possession of the suit property.
Respondent’s father had constructed a tin shed in the suit property in
the year 1977 and the eastern portion of that shed was given into the
possession of one Shanmughan as per license arrangement to run a
barber shop. The western portion was given to appellant No.1 on a
similar arrangement on payment of license fee of Rs.1.20 per day for
conducting business which he carried on till 1985. While so, one
Udayan trespassed into the counter claim B schedule property (suit
property) in the year 1990 and he was evicted in the year 1997.
Appellant No.1 influenced the local revenue authorities and obtained
certain documents in his name as if he is in possession of counter
claim B schedule property (suit property) but, those documents were
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canceled by the Tahsildar on a complaint preferred by the
respondent. In the counter claim, respondent prayed for a
declaration of his title over counter claim A and B schedule property
and for recovery of possession of the said B schedule property (suit
property). Trial court found the issues in favour of the respondent
and dismissed the suit while, counter claim was decreed in part
declaring title of respondent in the counter claim B schedule property
and directing appellants to remove the unauthorised constructions in
the counter claim B schedule property within one month from the
date of the judgment. That was confirmed by the first appellate court.
Hence this appeal. It is argued by learned counsel for appellants that
counter claim of the respondent being based on the absolute title
claimed by him over the suit property, burden lay on the respondent
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to prove the title which has not been done in this case. According to
the learned counsel, even an admissible copy of the patta relied on by
the respondent is not produced and what is produced is only a copy
attested by the counsel concerned as a true copy which is not
admissible as secondary evidence. It is also contended that the order
granting patta in favour of respondent is invalid since it is issued in
accordance with the provisions of the Kannan Devan Hills
(Resumption of Lands) Act 1971 (for short, “the Act”). According to
the learned counsel, at any rate Ext.B18 would show that appellant is
a co-owner of the suit property and hence no declaration or
mandatory injunction as prayed for could be granted. Learned
counsel for respondent would contend that title of the respondent is
proved by sufficient evidence and that appellants cannot challenge
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title of the respondent. It is also contended by learned counsel that
the claim of appellants that at any rate they are co-owners of the suit
property cannot stand in so far as there is neither plea nor evidence
in that line. Alternatively, it is argued that even the documents of
title relied by appellants show that appellants have no right to use the
suit property and hence courts below are justified in granting relief
on the counter claim.
2. Going by the averments in the plaint and contentions
raised in the replication, appellants have no claim of title over the suit
property and instead what is pleaded is possessory right. It is of
course stated that appellants are awaiting issue of patta in their
favour in respect of the suit property but concededly, no such patta
has been issued to the appellants. Exts.A1 to A5 series are produced
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by the appellants to prove their possessory right over the suit
property. Ext.A1 is the certificate issued by the Village Officer on
28.05.1997 certifying that appellants are in possession of the suit
property. Exts.A2 to A4 are documents based on Ext.A1. It has come
in evidence that on a complaint of respondent Ext.A1 was revoked
which PW1, Village Officer who issued Ext.A1 has admitted. Hence
based on Exts.A1 to A5 series, appellants cannot claim any possession
over the suit property.
3. So far as entitlement of respondent over the suit property
is concerned, his case is that it formed part of the 12.830 cents in
survey No.62/28A belonging to him as per Ext.B10, gift deed
No.1809 of 1985 executed by his father, the late Kuri Iype. In
Ext.B10 it is stated that the donor got that property for consideration
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from the KDH (Private Limited) company. In Ext.B10 the southern
boundary stated is post office road. Ext.B11 is the proceedings of
District Collector, dated 09-10-1995. In Ext.B11 the subject referred
is the Act and states that as per award dated 29-03-1974 issued by
the Land Board of Kerala, 226.69.440 acres of land was either leased
out, sold or gifted to outsiders by KDH (Private Limited) company
which has to be examined by the District Collector and appropriate
action taken in the matter to regularise occupation. There is
reference to the request of respondent for assignment of 12.830 cents
which was got enquired by the District Collector through the
Tahsildar concerned. It is also stated in Ext.B11 that as per the
award of Land Board of Kerala respondent has right over 12.830
cents with the old building situated thereon purchased by his father
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from the KDH (private limited) company. Accordingly, District
Collector accorded sanction for assignment of 12.830 cents in survey
No.62/28A as per the Kerala Land Assignments Rules 1964 (for short,
“KLA Rules”) and directed the Tahsildar to issue patta. It is
accordingly that the Tahsildar issued patta in favour of respondent
concerning the said 12.830cents in survey No.62/28A. Ext.B13 is the
photocopy of that patta signed by the advocate concerned as a true
copy. That patta is issued under the KLA Rules, 1964.
4. The argument of learned counsel for appellants is that
while in Ext.B11, reference is made to the Act the patta issued is not
in accordance with the rules framed under that Act but under
provisions of the Kerala Land Assignment Act (for short, “the KLA
Act”) and the Rules. Learned counsel would contend that it was not
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possible for the District Collector to issue patta under the KLA Act
and Rules in respect of land covered by the Act. Section 3 of the KLA
Act refers to vesting of possession of certain lands and sub section 2
(b) exempted “buildings, other than buildings belonging to
trespassers, and lands appurtenant to”. According to the learned
counsel for respondent the 12.830 cents is the land appurtenant to
the old building situated thereon, exempted from vesting under
subsection 2(b) of Section 3 of the KLA Act and hence there was
nothing illegal in the issue of patta in favour of the respondent under
the provisions of the Kerala Land Assignment Act and the Rules,
1964.
5. Though, not produced in evidence learned counsel for
respondent has given for my perusal a certified copy of proceeding of
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the Land Board dated 28-03-1974 where, in paragraph 35 it is stated
that 226.69.440 acres have been either leased out, sold or gifted to
outsiders by the KDH (private limited) company and that in respect of
the said area the District Collector, Idukki has to conduct appropriate
enquiry and take necessary further action (to regularise occupation).
The District Collector was directed to take further action to grant
patta. In the case of outright sale or gift a list of areas continued to
vest with the Government was also annexed to the order. In that list
item “C” is the area leased out, gifted or sold for which claims were
relinquished or in the possession of others but, not deducted form the
total holdings of KDH (private limited) company. Serial No.7 relates
to “building and land handed over to Mr. E K Kuri Iype – 0.1283 acres
(i.e., the 12.830 cents in survey No.62/28A which respondent’s
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father claimed by way of assignment from the KDH private limited).
Thus the old building and land appurtenant to it which the KDH
company had assigned to the father of respondent was exempted
from vesting under section 3(2)(b) of the KLA Act and hence it was
within the power of the District Collector to take action to issue patta
to in respect of such lands. It is accordingly that by authority of the
provisions of the Kerala Land Assignment Rules, District Collector has
sanctioned issue of patta to the respondent as per Ext.B11 order. In
the circumstance, the contention that patta issued under the KLA
Rules is invalid cannot be sustained.
6. The next argument is that Ext.B13 is not an admissible
copy of the patta. No doubt, Ext.B13 cannot be classified as
secondary evidence as it is only a true copy signed by the Advocate.
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But no objection was raised at the time that document was
introduced in evidence and hence in the light of the decision in
Krishnan Nair. S. Vs. S. Jayakumari (2009 (4) KHC 692)
appellant cannot at this stage raise objection regarding admissibility
or acceptability of Ext.B13.
7. Now the question is whether disputed property formed
part of the 12.830 cents covered by Exts.B10, B11 and B13. Burden
of proof in the nature of counter claim is on the respondent. In
Ext.B10 southern boundary of the 12.830 cents stated is post
office road. It has come in evidence that on the south of disputed
property, it is a post office (link) road. There is no case or evidence
that in between the suit property and property admittedly belonging
to the respondent there is any such road. Therefore it is clear from
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Ext.B10 that the 12.830 cents in survey No.62/28A extends up to the
post office road on the south. Respondent has produced Ext.B3, plan
for construction of building in the 12.830 cents where also the
southern boundary of the said property is shown as the road. The
Advocate commissioner in Ext.C3(a) has shown the actual extent
available as 12.464 cents bounded by road on the south and the
extent of counter claim B schedule property as 1.112 cents. In
Ext.B18, copy of assignment deed on which appellants now rely,
southern boundary of the 12.830 cents is shown as post office (link)
road. The Advocate commissioner who measured the property with
the assistance of surveyor has also reported that disputed property
(suit property, i.e., the counter claim B schedule property) is part of
counter claim A schedule property. Finding of the courts below in
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that regard requires no interference.
8. A contention is raised by learned counsel that there is no
proper identification of the suit property. But in the light of Exts.C3
and C3(a), that contention also cannot stand. Thus courts below
basing on the evidence on record rightly found that disputed property
formed part of 12.830 cents covered by Exts.B10 and B13.
9. A contention is now advanced by learned counsel for
appellant that Ext.B18, copy of assignment deed in favour of
respondent would show that appellants are co-owners of the suit
property along with the respondent. According to the learned
counsel if Ext.B18 is accepted, then there is no escape from the
conclusion that appellants have right over the suit property in which
case declaration and mandatory injunction prayed for cannot be
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granted against the appellants they being co-owners along with the
respondent. Learned counsel for respondent would contend that
there is no claim of title based on Ext.B18 made by the appellants
and instead, their contention is that the suit property did not form
part of 12.830 cents, no such contention was raised in any of the
courts below and hence at this stage that contention cannot be
allowed to thrive.
10. I have gone through Ext.B18, certified copy of assignment
deed No.2164 of 2001 dated 05-11-2001 executed by the assignee of
respondent purportedly conveying his 976/35000 undivided share in
the A schedule property mentioned therein in favour of appellants.
According to the learned counsel for appellants, A schedule stated in
Ext.B18 is the 12.830 cents and hence fractional interest of the
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assignor under Ext.B18 i.e., 976/35000 undivided shares must take in
his fractional interest in the disputed property as well. But I must
bear in mind that such a contention was not advanced by the
appellants in any of the courts below, not to say about lack of
pleading in that regard. On the other hand contention raised by the
appellants is that suit property does not formed part of the 12.830
cents belonging to the respondent. Therefore it is not necessary for
me to go into that question in this appeal but having regard to the
contention raised by the appellants, I make it clear that it will be open
to them to establish co-ownership right claimed by them over the
disputed property as per Ext.B18 if they are otherwise entitled to
that course. That need not result in interference with the decree
granted by the courts below on the counter claim. Decree in the
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counter claim only declares right of respondent as per Ext.B10, B11
and B13. So far as the decree for mandatory injunction is concerned,
even clause 5 of Ext.B18 would say that so far as the car parking area
(disputed property) is concerned, appellants will have no right of
enjoyment. If that be so, even if Ext.B18 is accepted as conferring
title on appellants, they cannot put up any structure in the disputed
property. Hence appellants are bound to remove the structures from
the suit property. Trial court has only granted a mandatory injunction
for removal of structures in the suit property (counter claim B
schedule property. That even in the light of clause 5 in Ext.B18 has
to stand. The substantial questions of law are answered in the above
lines. I make it clear that the title of respondent declared over the
counter claim B schedule property will not prevent appellants from
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establishing the claim made by them on the strength of Ext.B18, if
they are otherwise entitled to other course.
Resultantly with the observation that dismissal of the suit or
decree on the counter claim declaring title of respondent over the suit
property will not prevent appellants from establishing their claim on
the strength of Ext.B18 if there are otherwise entitled to that course,
the second appeal is dismissed. No costs.
Interlocutory Application No.444 of 2006 shall stand dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-