IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 142 of 2000(A)
1. K.RAJAPPAN
... Petitioner
Vs
1. SUDHAKARAN
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.M.V.MATHEW
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. Nos.142 & 143 of 2000
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Dated this the 22nd day of July, 2010.
JUDGMENT
The defendants in O.S. 970 of 1992 before the
Munsiff’s court, Alappuzha are the appellants in S.A.142
of 2000. The plaintiff in O.S. 790 of 1992 is the appellant
in S.A. 143 of 2000. O.S. 970 of 1992 was decreed and
O.S. 790 of 1992 was dismissed. The parties and facts
are hereinafter referred to as they are available in O.S.
970 of 1992 as that was treated as the leading case
before the trial court.
2. O.S. 970 of 1992 was a suit for declaration,
eviction and recovery of possession filed by the
respondents herein. O.S. 790 of 1992 was a suit filed by
the appellant for injunction simplicitor. Referring to the
facts in O.S. 970 of 1992, the plaint allegations are that
the plaint schedule item No.1 having an extent of 11
cents is comprised in Sy. No.388/1 of Aryad South
Village. The property was assigned in the name of
S.A. 142 & 143/2000. 2
Kankali, the father of the first plaintiff. As per a Will the
property came to vests with plaintiffs 1 to 4. According to
the plaintiffs there were three kudikidappukars in the
property including the first defendant. He had applied for
purchase of kudikidappu as O.A. 26 of 1985 before the Land
Tribunal, Alappuzha. That application was allowed and he
was allowed to purchase one cent of land as per the Kerala
Land Reforms Act as kudikidappu. It is pointed out by the
plaintiffs that prior to the said application, he had earlier
filed O.A. 483 of 1976 before the same Tribunal and one
cent was granted to him as kudikidappu. That was
measured and demarcated. Meanwhile against the order in
O.A.26 of 1985, the first defendant approached the appellate
authority as per A.A. 4 of 1987. The appellate authority set
aside the order of the Land Tribunal and remanded to the
Land Tribunal for fresh consideration. While the case stood
thus, the first plaintiff filed O.S.12 of 1988 before the
Additional Munsiff’s Court, Alappuzha for demarcation of one
cent of property as kudikidappu. It so happened that after
S.A. 142 & 143/2000. 3
remand, the first defendant withdrew O.A. 26 of 1985 and
consequently the suit was dismissed. According to the
plaintiffs, the defendants are residing in plaint item No.2.
They have no manner of right over the rest of the property.
According to the plaintiffs, the defendants are bound to
vacate plaint item No.2 and hand over possession to the
plaintiffs. On the basis of the above allegations, the suit was
laid.
3. Defendants 1, 2 and 4 contested the suit. They
contended that the plaint schedule property does not belong
to the plaintiffs. It is the Government puramboke land,
which is in the occupation of the defendants. These
defendants denied that the first defendant had filed O.A. 483
of 1976 and according to them, that is stage managed by
the plaintiffs themselves to defeat the claims of the first
defendant. The defendants have no knowledge about the
said application and they are unaware of the same. Under
the mistaken belief that the first defendant was occupying
the property owned by the first plaintiff, he instituted O.A.
S.A. 142 & 143/2000. 4
26 of 1985 for purchase of kudikidappu. The survey number
shown in the application was 388/3. But later it turned out
to be that the property, in which the first defendant was
residing as kudikidappukaran, was in survey No. 388/1. In
O.A. 26 of 1985, accepting the revenue inspector’s report,
the first defendant was allowed to purchase one cent of land
as kudikidappu. The matter was taken in appeal by him.
The appellate court set aside the order and remanded it
back to the Land Tribunal for fresh consideration. In the
meanwhile, the plaintiffs had instituted O.S. 12 of 1988
seeking to have the one cent granted as kudikidappu
measured and demarcated. However, after remand, since it
was found that the real survey number of the property over
which the first defendant lays claim is 388/1 and that is
Government puramboke, the application was not pursued
before the Land Tribunal. The suit O.S.12 of 1988 came to
be dismissed. According to these defendants, they are in
occupation of 9 cents in Sy. No.388/1/1 for the last 40 years
and they had preferential right for assignment. These
S.A. 142 & 143/2000. 5
defendants are occupying puramboke land and the plaintiffs
have no manner of right over the suit property. Therefore
they are not entitled to any relief.
4. The first defendant in turn laid O.S. 790 of
1992 against the plaintiffs in the above case seeking
injunction on the basis of the allegations almost similar to
the contentions in the written statement in O.S. 970 of 1992.
5. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws.1 to 3 and documents marked as Exts.A1 to A11 from
the side of the plaintiffs. The defendants had D.Ws. 1 and 2
examined and had Exts. B1 to B8 marked. Exts. C1 to C4
are the commission report, mahazar, plan etc.
6. On an appreciation of the evidence in the case,
the trial court came to the conclusion that the appellants
have not been able to establish their rights over the
property involved in the proceedings and therefore decreed
the suit against them and dismissed their suit. Though the
S.A. 142 & 143/2000. 6
appellants carried the matters in appeal, the exercise turned
out to be futile.
7. The following questions of law are raised in this
appeal for consideration:
“a) Whether the courts below was right in
granting a declaration of title without the title of
the property being produced by the plaintiff.
b) Whether the courts below was right in
treating Will executed by the father of plaintiff as
title deed especially when the description of the
plaint schedule property in this will varies from
identification made by commissioner.
c) Whether the court below erred in holding
tat the documents prepared by the commissioner
in this case has more probative value than the
documents prepared by the commissioner in O.S.
12 of 1988 without evidence on the same.”
8. At the time when the appeals were taken up for
hearing, it was found that some of the documents were not
available. On enquiry it was found that they had been
destroyed by the trial court. However counsel on both sides
S.A. 142 & 143/2000. 7
made available photostat copies of the documents for
perusal of this court.
9. Learned counsel appearing for the appellants
pointed out that the court below have not understood the
case put forward by the parties and have gone to
misconception that the appellants almost admit that they
are in occupation of the land over which the plaintiffs have
right. Learned counsel drew the attention of this court that
the assertion of the plaintiffs in O.S. 970 of 1992 that they
obtained 11 cents of puramboke land is not disputed by the
appellant. But the issue was where exactly that 11 cents is
to be located. Learned counsel brought to the notice of this
court that admittedly the property over which both lay claim
is comprised in 388/1. It is a puramboke land. It has a vast
extent of nearly 56 cents. There was no attempt from the
side of the courts to ascertain as to whether exactly 11
cents claimed by the plaintiffs lie. The evidence is to the
effect, according to learned counsel, that the appellants
have been found to be residing in the property for a long
S.A. 142 & 143/2000. 8
time and under such circumstances the lower courts could
not have held that they have no manner of right. It is also
contended that there is nothing to show that the plaintiffs in
O.S. 970 of 1992 had to accommodate three
kudikidappukars. There is no evidence regarding that
aspect. Counsel would point out that that was a deliberate
ploy employed by the plaintiffs to defeat the larger claim of
the appellants. At any rate, according to learned counsel,
without locating the 11 cents claimed by the plaintiffs, the
courts below could not have granted a decree in their
favour.
10. Learned counsel appearing for the
respondents on the other hand pointed out that the
evidence is clear to the effect that the appellants were
occupying the 11 cents assigned to the predecessor in
interest of the plaintiffs and which was acquired by the
plaintiffs as per the Will executed by their predecessor in
interest. It was for the appellants to show the right based on
which they lay claim to the suit property. Having failed to do
S.A. 142 & 143/2000. 9
so, they are not entitled to any relief. In other words,
learned counsel points out that there are no grounds made
out to interfere with the judgments and decrees of the
courts below.
11. It is an admitted fact that the appellants are
kudikidappukars under the respondents. From the records,
it is seen that the first appellant is said to have instituted
O.A. 486 of 1976 before the Land Tribunal, Alappuzha and
the land Tribunal disposed of the application granting one
cent to him as kudikidappu. The appellants would stoutly
deny that such an application was ever made by them and
according to them it is a fraud played by the plaintiffs to
defeat their claims. However, it is admitted by the
appellants that they have filed O.A. 26 of 1985 against the
plaintiffs claiming kudikidappu. They say that they were
under the bonafide belief that the property which was being
occupied by them was in Sy. No.388/3. The records indicate
that in O.A. 26 of 1985 the appellants were granted one cent
as kudikidappu since the Land Tribunal was given to
S.A. 142 & 143/2000. 10
understand that there were three kudikidappukars in the
property.
12. The appellants very vehemently submitted
that though the finding of the Land Tribunal was that there
were three kudikidappukars, no details whatsoever are
available in this regard. According to learned counsel for the
appellants there is nothing to show that the plaintiffs’ claim
is true. However, adjudication of this issue is neither
warranted at this point of time nor is this court competent
to do so. That is a matter to be determined by the Land
Tribunal concerned.
13. Coming back to the facts of the case,
aggrieved by the order granting assignment of one cent, the
appellant went in appeal against that order. In the
meanwhile, taking aid of the order of the Land Tribunal in
O.A. 26 of 1985, the plaintiffs approached the Munsiff’s court
for measurement and demarcation of one cent assigned by
the Land Tribunal to the appellant. A commissioner was
deputed from the court to locate the said portion. The
S.A. 142 & 143/2000. 11
commissioner filed a report that Sy. No. of the property is
388/1 and not 388/3. The Commissioner also reported that
the property in Sy. No.388/1 is puramboke property. In the
light of this revelation, the appellants herein chose to
withdraw O.A. 26 of 1985 because they found that they were
not occupying the property owned and possessed by the
plaintiffs, but they were in the puramboke property.
14. They lay claim to 9 cents of land in Sy.
No.388/1. According to them the plaintiffs have no manner
of right whatsoever in the property now in their possession.
They actually did not dispute the claim of the plaintiffs that
their predecessor in interest got assignment of 11 cents of
property. But their only dispute is that the 11 cents
assigned in favour of the predecessor in interest of the
plaintiffs does not take in any portion of the property
occupied and owned by them.
15. The plaintiffs in O.S. 970 of 1992 on the other
hand would say that the appellants are occupying a portion
of the property assigned to them.
S.A. 142 & 143/2000. 12
16. The courts below accepted the case of the
plaintiffs in O.S.970 of 1992. The question that arises for
consideration is whether the lower courts were justified.
17. After going through the records and hearing
learned counsel on either side, it is seen that both the courts
below have grievously erred in their approach and
conclusion.
18. It may be immediately noticed that even
though the plaintiffs in O.S.970 of 1992 claim that 11 cents
were assigned to their predecessor in interest, they have not
produced the assignment deed. Instead, they produced the
Will executed by their father bequeathing the property to
them. Property was sought to be identified on the basis of
the recital in the will. As rightly pointed out by the learned
counsel for the appellant, that approach does not appear to
be correct. Even assuming that the plaintiffs in O.S. 970 of
1992 did not have the original assignment document with
them, nothing prevented them from having the document
produced by the authority concerned to establish the
S.A. 142 & 143/2000. 13
identity of the property which was assigned to them. Both
the courts simply go on to say that the appellants had failed
to establish any right over the suit property and they should
fail. The real issue involved was regarding the identity of
the property. Both the courts below have came to the
conclusion that the property claimed by both sides is
identical one.
19. From the records, it does not appear to be so.
Ext.B1 is the mahazar which shows that one cent initially
granted to the appellant as kudikidappu by the Land
Tribunal was located to be situated in Sy. No. 388/1. The
evidence shows that the property comprised in Sy. No.388/1
is puramboke property. Ext.B3 may be of some relevance in
the present context. That is the judgment in O.S. 12 of
1988, which was filed by the first respondent herein against
the first appellant. The suit was one for fixation of boundary
and for perpetual injunction. The finding in Ext.B3 is that the
plaintiff has not been able to prove his title to the property
claimed by him in Sy. No.388/1.
S.A. 142 & 143/2000. 14
20. In fact the appellants do not know if the
plaintiff in O.S. 970 of 1992 have any property in Sy.
No.388/1. According to them, may be that the predecessor
in interest of the plaintiffs have been assigned property in
Sy. No.388/1. But their contention is that that property is
not the property occupied by the appellants.
21. It appears that a commission has been taken
out in O.S. 790 of 1992 to note various aspects. A reference
to that report may be useful. In paragraph 3 of the report
the house and the surroundings occupied by the appellant
and his family is described in detail. What is significant is
that on the eastern side from north to west, and on the north
towards east-west there is a well laid fence. On the eastern
side of the eastern fence is the Alappuzha-Kattoor road. One
must remember that the plaint schedule referred to in
Ext.C4 is the plaint schedule in O.S. 790 of 1992. In
paragraph 7 the commissioner has reported that some
portions of the property comprised in Sy. No. 388/1 lies on
the western side and some portion lies on the eastern side
S.A. 142 & 143/2000. 15
of Alappuzha-Kattoor road. It appears that the plaintiffs in
O.S. 970 of 1992 had shown the Will to the Commissioner.
The commissioner has stated that going by the recitals in
the Will, the plaintiffs have rights over 52 cents in Sy.
No.388/3 and 11 cents in Sy. No.388/1, then they have a
total extent of 63 cents. The commissioner in his report has
extracted the boundaries shown in the Will. That does not
tally with the boundaries at site. According to the
commissioner, the total extent of property in Sy. No.388/1 is
56 cents. The Commissioner also mentions that going by
the Will, there is no road on the eastern side of the
defendant’s property in O.S. 790 of 1992. The definite
finding of the commissioner that it is not possible to say
whether the property claimed on the basis of the Will by the
plaintiffs in O.S. 970 of 1992 is the property claimed by the
defendants in the said suit. The report also discloses that on
the northern and eastern side of the property occupied by
the appellants, there is a well laid fencing. The report in
detail gives various structures found in the property in the
S.A. 142 & 143/2000. 16
possession of the appellants. Commissioner has noticed
that the house occupied by the appellants is situate in Sy.
No.388/1-2. Commissioner has also noticed on the western
side of the property possessed by the appellant, there is a
thodu. It is also mentioned in the report that the property in
Sy. No.388/1 extends beyond that thodu also. That is also
puramboke land. Further west is the property comprised in
Sy. No.387/13. Various other details were also given, which
are not very relevant for the present purpose.
22. Going by the commission report referred to
above, it is very evident that it cannot be conclusively said
that the property occupied by the appellant is the property
assigned to the respondents in these appeals. The
commissioner has noticed that on either side of Alappuzha-
Kattoor road there are lands comprised in Sy.No.388/1. It is
significant to notice that the property now located by the
commissioner is on the western side of the road. It is
possible that the assignment of atleast a portion of the
property said to have been assigned to the predecessor in
S.A. 142 & 143/2000. 17
interest of the plaintiffs in O.S.970 of 1992 could be on the
eastern side of the road. That possibility cannot be ruled
out. Under such circumstances, the courts below were not
justified in coming to the conclusion that the property
involved in both the suits is the same and the plaintiffs in
O.S. 970 of 1992 have absolute rights over the same.
23. One may at once refer to the evidence of
P.W.1. He says that his claim is based on Ext.A1 Will. He
speaks about the various documents produced by him. It is
admitted by him that the land comprised in Sy. No.388/1 is a
puramboke land and also that the appellants reside therein.
Pointed question was put to him whether he has any
objection to the report and mahazar filed by the
commissioner. The reply was that he understood the
contents therein and he has no objection to any of the
statements contained therein. He candidly admits that the
statements in the report that the appellants, who are the
plaintiffs in O.S. 790 of 1992, are residing in the plaint
schedule property in O.S. 970 of 1992 is correct. He says
S.A. 142 & 143/2000. 18
that he does not know the point of time at which his
predecessor in interest got assignment of the property
comprised in Sy. No.388/1. He then takes objection to the
commission report as regards the boundaries mentioned by
him. However, he admits that on the northern and eastern
sides of the property occupied by the appellant herein, there
is fencing. P.W.1 says that he has property on the western
side of Alappuzha-Kattoor road. But he is unable to say the
extent and survey number of the property. He says that
Alappuzha-Kattoor road cuts through the property in Sy. No.
388/3.
24. The said claim of P.W.1 does not appear to be
correct in the light of Ext.C4 report filed by the
Commissioner. Whatever that be, there is infact a bonafide
dispute regarding the identity of the property claimed by
both the parties. Going by the commission report, one has
to ascertain the property said to have been obtained by the
predecessor in interest of the plaintiffs as well the property
claimed by the plaintiff in O.S. 790 of 1992. Without
S.A. 142 & 143/2000. 19
properly identifying the property, it will not be possible for
the court to grant decree in O.S. 970 of 1992.
25. It is felt that a reconsideration of the entire
matter is necessary at the hands of the trial court in order to
do justice to the parties. In the result these appeals are
allowed, judgments and decrees are set aside and the
matter is remanded to the trial court for fresh consideration
in accordance with law and in the light of what has been
stated above. The parties shall appear before the trial court
on 18.8.2010. They shall be permitted to adduce further
evidence if they so choose. The trial court shall make every
endeavour to dispose of the suit as expeditiously as
possible, at any rate, within six months from the date of
appearance of the parties. There will be no order as to
costs. Office of this court shall re-transmit the records
forthwith.
P. BHAVADASAN,
JUDGE
sb.