IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 555 of 1994(G)
1. K.J.XAVIER
... Petitioner
Vs
1. T.K.RAGHAVAN NAIR
... Respondent
For Petitioner :SMT.ELIZABETH MATHAI IDICULLA
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/02/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.555 OF 1994
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Dated this the 12th day of February, 2008
JUDGMENT
Plaintiffs in O.S.468/1983 on the file of
Munsiff Court, Alappuzha are the appellants.
Defendants are the respondents. Appellants
instituted the suit for declaration of their title,
possession and permanent prohibitory injunction.
Plaint schedule property is about 4 cents in extent
in survey No.188/1A of Kozhimukku Village of
Kuttanad taluk which is part of 9.02 acres.
According to appellants, 9.02 acres known as
noottirupathum padam lying as a separate block and
the property was obtained on lease hold right by
appellants. Subsequently they purchased jenm right
from the Land Tribunal evidenced by Ext.A2 purchase
certificate. It was contended that on all the
sides of the paddy field, there are chiras (banks)
where coconuts are planted and a portion of
Noottirupatham padam is lying on the southern side
S.A.555/1994 2
of Thirumanassery purayidom also and on the side
of this portion there exists the motor and the
accessories and on the eastern side of padasekharam
there is a muttuthodu which originates from main
thodu which lies on the southern side and it is a
chira on the northern side of padasekharam lying
east west and on the eastern side of padasekharam
lying east west there are yielding coconut trees
and on the northern side of Thirumanassery
purayidom there is a pond and there exists a chira
around the banks of the pond and this portion of
Thirumanassery purayidom is projecting to the
eastern side and is in the possession of the
Parvathi Amma the sister of respondents and they
are in possession of the southern side of
Thirumanassery purayidom. There exist another
muttuthodu abutting the property in the possession
of respondents and the said muttuthodu is starting
from the muttuthodu lying on the southern side and
terminates at the pond owned by Parvathi Amma. The
eastern side of the said muttuthodu is a chira
S.A.555/1994 3
which is the as plaint schedule property and on
the south eastern side of the chira is the
methikalam owned by appellants and plaint schedule
property forms part of the entire paddy fields
owned by appellants and respondents have no manner
of right or possession over the said property. On
24.6.1983 appellants planted 30 plantains. They
were forcibly removed by respondents two days
thereafter. Appellants filed a complaint before
the police authorities. Respondents have claimed
right in the property. Hence suit was filed for
declaration of title and injunction. Respondents
in the written statement contended that plaint
schedule property does not form part of the paddy
field owned by appellants and plaint schedule
chira is owned by respondents and they obtained
right to the property by virtue of partition deed
982/1955 (Ext.B5), Ext.B4 partition deed 2354/1957
and Ext.B3 sale deed of 1983 and appellants have no
right or possession to the plaint schedule chira
and therefore they are not entitled to the decree
S.A.555/1994 4
sought for.
2. Learned Munsiff on the evidence of Pws.1
and 2, Dws. 1 to 4, Exts.A1 and A2, Exts.B1 to B6 ,
C1 to C3 granted a decree in favour of appellants
declaring their right title and possession to the
plaint schedule property restraining respondents
from trespassing into the plaint schedule
property. Respondents challenged the judgment
before District Court, Alappuzha in A.S.34/1991.
Learned Additional District Judge on reappreciation
of evidence found that appellants did not produce
the lease deed by which the properties were
obtained and if that document was produced it would
have thrown light into the controversy and for its
non production an adverse inference has to be
drawn. Learned District Judge also found that
western boundary of the property obtained under
Ext.A1 is Mankuzhi Chempothuparambu and
Thirumanassery paddy field and evidence establish
that in between mankuzhi Chempothuparambu and
Thirumanassery there are three paddy fields and
S.A.555/1994 5
based on the boundary in Ext.A1 appellants cannot
claim title to the disputed chira. Finding that
Ext.B3 sale deed shows that the disputed chira
forms part of the property of respondents, learned
District Judge set aside the decree and dismissed
the suit. It is challenged in the second appeal.
3. Second appeal was admitted formulating the
following substantial questions of law.
1. When Ext.A1 establish
the title of appellants,
whether first appellate
court was justified in not
relying on Ext.A1 in view
of Section 72K of Kerala
Land Reforms Act.
2. Whether first
appellate court was
justified in drawing an
adverse inference against
appellants for non-
production of the lease
S.A.555/1994 6
deed when Ext.A1 purchase
certificate was produced.
3. Whether on the
evidence first appellate
court was justified in
holding that plaint
schedule property does not
form part of the property
belonging to appellants
under Ext.A1 purchase
certificate.
4. Learned counsel appearing for appellants
and respondents were heard.
5. The dispute in the appeal is with respect
to the plaint schedule property which is a chira
having an extent of about 4 cents, which lies to
the west of the admitted paddy fileds of
appellants and east of the admitted purauyidom of
respondents. Respondents admittedly obtained the
property which lies to the east of the plaint
schedule property comprised in R.S.187/18 under
S.A.555/1994 7
Ext.B3 sale deed. The right obtained under Ext.B3
is the right which was allotted to the assignor
thereunder, under Ext.B4 partition deed which in
turn was the right which was available to him
under Ext.B5 partition deed. Learned Munsiff on
the evidence found that plaint schedule property
forms part of the lease hold property obtained by
appellants and its jenm right was subsequently
purchased from the Land Tribunal under Ext.A1
purchase certificate. First appellate court found
fault for not producing the lease deed, though
Ext.A1 purchase certificate was produced then
relying on Ext.B3 sale deed where, the right over
the plaint schedule chira was claimed by
respondents it was found that the disputed chira
does not form part of the property obtained on
lease by appellants. The argument of learned
counsel appearing for appellants is that the
finding of first appellate court is erroneous and
under Ext.B4 and B5 all the properties available
were divided between the co-owners and no property
S.A.555/1994 8
was left common as undivided. Therefore at the
time assigning a portion of the property divided
under Ext.B4, the plaint schedule chira could not
have been referred as the property which was left
undivided at the time of the partition. Learned
counsel also argued that as per Ext.B3 the
property obtained by respondents is only in
R.S.187/19 and the said property is the property
which lies to the west of the disputed chira, as
the eastern boundary shown is the chira and under
Ext.B3 respondents cannot claim any right over the
disputed chira. It was also argued when the
entire properties were divide under Ext.B4 and B5,
it is improbable that a strip of land which
constitute only a chira would be left undivided
and recital about the chira, as the property which
was kept undivided in Ext.B3 is made just prior to
the institution of the suit to raise a false
claim and first appellate court was not justified
in relying on the said recital in Ext.B3. It was
also argued that the eastern boundary of the
S.A.555/1994 9
property which was divided under Ext.B5 and later
under Ext.B4, is the paddy fields belonging to
appellants under Ext.A1 purchase certificate and
not any chira and first appellate court was not
justified in interfering with the decree granted
by the courts below. It was also argued that it
is admitted by DW1 that there is no document to
show that they have any right over the disputed
chira and that paddy fields of the appellants are
surrounded by chiras on all the sides and so the
disputed chira forms part of the paddy fields. It
was argued that evidence establish that the
chiras are constructed for the purpose of
cultivation of the paddy fields and not for
purauyidom and when the property of respondents is
purayidom and so there is no necessity for
retaining a chira for the purayidom and all these
facts probablise the case of appellants that
plaint schedule property forms part of the
property covered under Ext.A1. Learned counsel
also argued that first appellate court was not
S.A.555/1994 10
justified in drawing an adverse inference for the
non-production of the lease deed when purchase
certificate was produced and that too when no
application was filed by respondents for a
direction to appellants to produce the lease deed
and adverse inference should not have drawn for
the lease deed and appellants are entitled to the
decree for declaration of title and possession.
Learned counsel appearing for respondents argued
that when cross examined PW1 admitted that there
is no document to show the right or title of the
appellants to the plaint schedule property and
Ext.A1 does not establish the title to the plaint
schedule property and therefore first appellate
court rightly found that appellants are not
entitled to the decree sought for.
6. Though appellants did not produce the
lease deed which was admittedly executed and by
which the undisputed property was obtained by
appellants on lease they produced Ext.A1 purchase
certificate which establish that they were granted
S.A.555/1994 11
purchase certificate in respect of 9.02 acres in
survey No.188/1A and 1B. Ext.C1 report and Ext.C2
plan submitted by the Commissioner establish that
the disputed chira which is marked in red shaded
colour forms part of R.S.No.188/1A. It is not
disputed that the property which belong to
respondents is in R.S.187/19. If the plaint
schedule property forms part of R.S.No.188/1A,
appellants have title to the said property
under Ext.A1 and respondents cannot claim title
to the property.
7. The evidence establish that the property
obtained by appellants on lease was the paddy
field by name noottirupathum padam which forms
part of padasekharam. That fact was not disputed.
It is also admitted case that on all four sides of
the paddy field there are chiras where coconut
trees are planted. The chiras form part of the
paddy fields. The disputed plaint schedule chira
forms part of the western portion of paddy fields,
which lies immediate to the east of the purayidom
S.A.555/1994 12
of respondents. Learned District Judge relied on
Ext.B3 to find that appellants have no title to
the disputed plaint schedule property. It was
based on the recital in Ext.B3 that the eastern
boundary of that property is chira which was
described as kept undivided at the time of the
earlier partition. As rightly argued by learned
counsel appearing for appellants, unfortunately
first appellate court did not properly appreciate
Ext.B3 in the light of Ext.B4 and B5. As stated
earlier, the assignor under Ext.B3 obtained the
property conveyed under Ext.B4 partition deed.
The property divided under Ext.B4 is the
property, which was obtained by the assignor and
others under Ext.B5 partition. Both Exts.B4 and
B5 show that the eastern boundary of the property,
which was subsequently assigned under Ext.B3, is
the property which lies immediate to the west of
the paddy fields belonging to appellants. If in
fact a portion of the properties was left
undivided at the time of Ext.B5 partition or
S.A.555/1994 13
Ext.B4 partition, it would have been specifically
mentioned in Ext.B5 or B4 partition deeds. The
conspicuous absence of such a recital in Exts.B4
and B5, establish that no property was left
undivided at the time of the partitions.
Moreover, it is not at all probable that a strip
of land, which forms a chira alone, would be left
undivided at the time of Ext.B5 partition and also
subsequently under Ext.B4 partition, when all
the remaining properties were divided. As rightly
pointed out by learned counsel for appellants the
recital about the chira, as kept undivided at the
time of partition in Ext.B3 sale deed could only
be made with ulterior motive, especially when it
was just prior to the suit. Moreover, what is
shown under Ext.B3 is that the property assigned
thereunder is the property which lies to the west
of the eastern chira. So Ext.B3 does not take in
the chira also. Therefore under Ext.B3
respondents cannot claim any right over the
chira. At best it could be said that the chira
S.A.555/1994 14
was left undivided and available to the sharers.
But as stated earlier if it was left undivided, it
would have been mentioned in Exts.B4 and B5. When
Exts.B4 and B5 show that the entire properties
were divided, the recital in Ext.B3 to the
contrary cannot be relied on at all. Therefore
first appellate court was not justified in
interfering with the finding of the trial court
based on the recitals in Ext.B3.
8.On appreciating the entire evidence the
trial court rightly found that plaint schedule
property forms part of the paddy fields obtained
by appellants on lease and comprised in R.S.188/1A
and 1B. When the report submitted by the
Commissioner after proper identification establish
that the disputed plaint schedule property is part
of survey No.188/1A and appellants have title to
the said property under Ext.A1, the non-production
of lease deed by appellants is not very material.
Even if that lease deed was produced, it would not
have thrown light into the controversy because
S.A.555/1994 15
the properties would have been described only as
paddy fields comprised in survey No.188/1A and
188/1B and it would not have helped the court to
decide the question of title to the disputed
chira. Therefore first appellate court was not
justified in drawing an adverse inference for the
non-production of the lease deed especially when
appellants never asked appellants to produce the
said document.
9. Appreciating the entire evidence, it is
absolutely clear that first appellate court did
not properly appreciate the evidence, when the
trial court on proper appreciation of evidence
rightly found that plaint schedule property forms
part of the leasehold property and under Ext.A1
appellants have title and possession to the said
property. First appellate court was not justified
in interfering with the decree granted by the
trial court.
The appeal is allowed. The judgment of the
first appellate court in A.S.34/1991 is set aside.
S.A.555/1994 16
The decree and judgment of the trial court are
restored. No costs.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.555 /1994
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JUDGMENT
12TH FEBRUARY,2008