IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 427 of 1999()
1. SHEKKINTAVEETTIL
... Petitioner
Vs
1. KAMALAM PATHUMMABI
... Respondent
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.S.RADHAKRISHNAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :01/03/2010
O R D E R
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 & 445/99false. 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 & 445/99Ext.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