IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 354 of 2004(F)
1. A.P.MICHAEL, S/O. PETER,
... Petitioner
2. VIMALA W/O.A.P.MICHAEL,
3. FRANCIS S/O. LANAKUTTY,
Vs
1. BHAGARAJ SINGH (DIED),
... Respondent
2. ANGUBHAI, W/O. BHAGARAJ SINGH, AGED 49,
3. B.ANGUBHAI W/O. LATE BHAGARAJA SINGH,
4. B.VENUGOPAL SINGH
5. B.PRATAP SINGH S/O. LATE BHAGARAJ SINGH,
6. B.INDIRA D/O. LATE BHAGARAJ SINGH,
7. B.MOHAN SINGH
8. B.ASOK KUMAR S/O. LATE BHAGARAJ SINGH,
9. B.SARAM SINGH S/O. LATE BHAGARAJ SINGH,
10. J.SARALABHAI D/O. LATE BHAGARAJ SINGH,
11. J.RAJESH (MINOR) REPRESENTED BY THE
12. J.MONICA (MINOR) REPRESENTED BY THE
13. JOSEPH @ JOY S/O. XAVIER, AGED 31,
For Petitioner :SRI.LATHEESH SEBASTIAN
For Respondent :SRI.KOSHY GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :06/12/2010
O R D E R
M.N. KRISHNAN, J.
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R.F.A. NO. 354 OF 2004
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Dated this the 6th day of December, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the Subordinate
Judge, Thodupuzha in O.S.110/82. The suit is
one for recovery of possession on the strength
of title with arrears of rent and damages.
According to the plaintiffs, first plaintiff
has obtained a lease over items 1 to 4 for
cardamom cultivation from the department. Item
No.5 was obtained by the 2nd plaintiff under a
partition in her family. It is submitted that
on 5.3.70 plaintiffs executed and registered a
‘kuthakapathram’ in favour of the defendant for
a period of nine years on payment of rent of
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Rs.3,000/- per year. Now it is over that
property the plaintiffs are claiming recovery of
possession. Originally the first defendant
contested the suit and now the present
contesting defendants are intervenors.
2. Heard the learned counsel for the
appellant as well as the respondent. I feel a
peculiar situation has arisen in this case with
respect to item Nos.1 to 4 of the plaint
schedule. According to plaintiffs, items 1 to 4
were obtained by them under a lease agreement by
the department. It was found by the department
correctly or incorrectly that there had been
violation of the terms of the lease and
therefore they have terminated the lease in
favour of the first plaintiff and it is
contended that the contesting defendants had
been given the lease of the property.
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3. The learned counsel for the plaintiffs
would submit that in a previous round of
litigation this Court had found that it is not a
lease but a licence and therefore there cannot
be any violation of the terms of the contract of
lease. But rightly or wrongly the department
moved action terminating the lease of the
plaintiff and it is under challenge and pending
before this Court in the writ jurisdiction as
W.P.C. 17510/05. So the title of the plaintiff
is now hanging.
4. In a suit for recovery of possession
also the Court has to take into consideration
whether the plaintiff has got title to the
property when a decree is granted in his favour.
Unfortunately, the trial court has entered into
a finding whether it is a lease or a licence
depending upon the earlier ruling but without
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making the Government a party who had terminated
the lease. It may be true that the said finding
may have bearing on the issue but the decision
cannot be rendered against a Department or a
Government without impleading or getting it as a
party. So everything depends upon the outcome
of the writ petition. Therefore it is desirable
in this case as well that the department is also
made a party and the matter can be pursued when
the judgment of this Court comes in the writ
petition. So far as item 5 is concerned 2nd
plaintiff has got title to the property under a
partition deed of the year 1956. The contesting
defendants are claiming right only by adverse
possession. The trial court has considered it
and found that adverse possession is not proved
at all. When petitioner’s possession is not
proved the 2nd plaintiff is entitled to that
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relief with respect to that item. Further the
Court below also verified the documents Exts.B15
to 17, 19, 22 and 23 and held that the
defendants entitlement is not supported by those
documents.
5. The trial court has held that there is
no evidence to show that the 2nd defendant had
obtained possession of plaint item 5 and
perfected title by adverse possession and
limitation. The Court held that “Apart from
these tax receipts, which are very feeble pieces
of material, nothing is available to prove the
contention and found that no oral evidence has
been adduced. So in the light of the fact that
the 2nd plaintiff’s claim stand satisfied by the
document of 1956 and in the absence of any
document on the side of the contesting
defendants, it has to be held that the plaintiff
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is entitled to recovery of possession of item
No.5 of the plaint schedule property. Therefore
the appeal is disposed of as follows.
(1) So far as it relates to items 1 to 4
are concerned, judgment and decree of the trial
Court are set aside and the matter is remanded.
The plaintiffs are directed to implead the
department also as a party since it has
cancelled the lease in their favour and
thereafter pursue the matter which would depend
upon the fate of the writ petition pending
before this Court.
(2) So far as item No.5 is concerned the
finding of the trial court is confirmed and the
plaintiffs are given a decree for recovery of
possession of item No.5 of the property on the
strength of title from the defendants.
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(3) The Receiver be directed to hand over
possession of the property to the plaintiffs and
he can be discharged after submission of proper
accounts. Parties are directed to appear before
the trial Court with respect to item Nos.1 to 4
on 10.11.2011.
M.N. KRISHNAN, JUDGE.
ul/-