IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 508 of 1995(B)
1. U.GANGADHARAN
... Petitioner
Vs
1. SUNFLAG NYLONS LTD
... Respondent
For Petitioner :SRI R.SANKARANARAYANA IYER,
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice K.M.JOSEPH
Dated :27/05/2009
O R D E R
K.M. JOSEPH, J.
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S.A. NO. 508 OF 1995
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Dated this the 27th day of May, 2009
JUDGMENT
The defeated plaintiff in a Suit for declaration of title and
possession, in both the Courts below, is the appellant in this
Second Appeal. The case of the plaintiff, in brief, is as follows:
The plaint schedule property belonged to deceased
Ummini, the father of the plaintiff, having been obtained the
same as his share in an oral partition. The father of the plaintiff
was in absolute possession and enjoyment of the property.
While so, he executed a deed of Otti and Kuzhikanam in favour
of one Kali Parvathi and Velayudhan Krishnan as per document
No.3751/1107 M.E. After the mortgage, the said Kali Parvathi
and Velayudhan Krishnan were in absolute possession and
enjoyment of the schedule property and while so, in 1122 the
said Kali Parvathi and Velayudhan Krishnan executed a release
of the Otti kuzhikanam right in favour of the plaintiff, as per
document No.691/1122. Ever since the release deed, the
plaintiff has been in absolute possession and enjoyment of the
schedule property and has been dealing with the same as
absolute owner thereof. No one else has any manner of right,
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title, interest or possession over the schedule property or any
part thereof. The defendant’s agents and employees have been
constantly harassing the plaintiff to execute a sale deed in their
favour, to which the plaintiff refused. On 10-1-1985, the
defendants along with their agents attempted to trespass into the
plaint schedule property alleging that they have purchased the
same. Their attempt was prevented by the timely intervention of
the plaintiff and his relatives. The defendant has no manner of
right title, interest or possession over the plaint schedule
property. They have no right to trespass upon the property or to
alter its boundaries or to put up any construction or to commit
waste in the property. The defendant is highly influential and it
may go to any extent. The plaintiff apprehends that the
defendant may commit the illegal acts unless restrained by the
court. By the attempt to trespass upon the property and also
claiming right over the same, the defendant has case a cloud
upon the plaintiff title over the schedule property and the
plaintiff is entitled to have his title declared. Therefore, it was
prayed that the plaintiff’s title in the schedule property may be
declared and the defendant may be restrained from trespassing
into the schedule property by decree or permanent injunction.
2. The respondent contested the Suit, inter alia, denying
title and possession. It was the case of the respondent that the
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respondent is a Public Limited Company in the joint sector
formed for establishing a project estimated to cost over Rs.49
Crores and an area of about 16 Acres for that purpose has been
purchased from the owners through the good offices and
services of the Kerala Government Revenue Officers. Except
for 40 cents, out of the total area, the whole property was
conveyed by the several owners to the respondent in June, 1984
and immediate possession over the entire area demarcated
inclusive of the said 40 cents was given to and taken by the
respondent. It is stated that in June, 1984, the occupier of the
said 40 cents was only a tenant entitled to fixity of tenure under
the Kerala Land Reforms Act. The appellant represented to the
Minister for Industries objecting to the payment of sale
consideration to the tenant on the ground that the latter had not
acquired jenmom right over the said property. It is stated that
the Land Tribunal issued Certificate of Purchase in respect of 52
cents in Survey No.2112/3 in favour of the occupier tenant, C.
Bahuleyan and that the respondent was in possession of the
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entire 16 Acres from June, 1984.
3. The appellant examined Pws. 1 and 2 and marked
Exts.A1 to A4. Ext.A1 is Otti kuzhikkanam deed executed by
Ummini in favour of K. Parvathy and V. Krishnan dated
28.11.1107 (ME). Ext.A2 is a Release Deed executed by K.
Parvathy and V. Krishnan in favour of the appellant, dated
21.2.1122 (ME). Ext.A3 purports to be tax receipt dated
22.6.1122 (ME). Ext.A4 is the Judgment in OS No.16 of 1970.
The respondent examined one of its Officers and produced
Exts.B1 to B7.
4. The Trial Court considered the entire matter and came
to the conclusion, inter alia, that Exts.A1 to A3 are not
conclusive proof of title. The trial court found that the evidence
of Pws.1 & 2 do not inspire confidence in regard to the
possession of the property by the appellant. It took note of the
fact that both the appellant as also the respondent produced tax
receipts. Ext. A3, as already noted, is of the year 1947.
Appellant was not in a position to produce any tax receipt after
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the point of time. Exts.B4 to B6 are tax receipts of the years
1982, 1973 and 1984 respectively, produced on behalf of the
respondent. It is also found that Ext.B3 which is the Certificate
of assignment issued by the Land Tribunal to Shri Bahuleyan,
who is cited as the predecessor in interest of the respondent, has
not been impugned by the appellant. It was noted that unless the
Purchase Certificate is set aside, the title would stand in favour
of the assignee under Section 72F of the Land Reforms Act.
Moreover, the appellant has admitted in Exts.B1 Petition and B7
Suit Notice that the defendant had intended to purchase the land
including the plaint schedule property. The First Appellate
Court has confirmed the findings.
5. I heard Shri S. Syam, learned counsel for the appellant
and also the learned counsel appearing on behalf of the
respondent.
6. The appellant has purported to raise the following as
substantial questions of law:
“(i) Whether a purchase certificate like
Ext.B3 granted by the Land Tribunal in a suo motu
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proceeding is binding on a person who is not a
party to it ? Is it obligatory on the affected party to
move for setting it aside ?
(ii) Is not ancient documents like Exts.A1 to
A3 sufficient and satisfactory proof for title and
possession pleaded on their basis ?
(iii) When the dispute regarding title is in
respect of a portion of a larger extent comprised in
a particular survey number, is it not obligatory to
locate and identify the property by issuing a
Commission ?
(iv) Are not the findings of the Courts below
perverse ?”
7. I would think that there is no merit in the Second
Appeal. As far as possession goes, apart from Ext.A3 and the
testimony of Pws.1 and 2, there is no evidence. It was for the
appellant to take steps to get a Commission issued. He has no
case that despite applying for appointing a Commission, that
was refused by the Court. In this context, it is also worthy to
reiterate, as noted in the Judgments under attack, that Ext.A3
purporting to be a tax receipt produced in support of the alleged
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possession of the appellant, is of the year 1947. Absolutely, no
evidence is forthcoming to show that the appellant was in
possession of the said property. Furthermore, when the
appellant was examined as PW1, he has admitted that the
property on the western side belonged to Shri Bahuleyan. He
would submit that he does not know whether it is in the same
survey number. He has also stated that Shri Bahuleyan has
constructed a building in the property about ten to twelve years
back and the appellant did not obstruct him. By no stretch of
imagination, can it be said that the finding that the appellant
could not prove his possession, is a perverse one. Essentially,
the findings are findings of facts and they certainly do not
warrant any interference in the limited jurisdiction contemplated
by Section 100 of the Code of Civil Procedure. Be it a suo motu
proceedings, Ext.B3 Certificate of assignment has the effect
which Section 72F of the Land Reforms Act declares. The
suggestion that identity of the property was not proved is
meritless. The appellant himself in Ext.B1 has stated that one
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Bahuleyan is understood to have created a fraudulent and false
document and that he is attempting to snatch away the price of
the property of the appellant. I would think that the findings as
regards title and possession rendered by both the courts below
concurrently do not call for interference. I see no merit in the
Second Appeal and it is dismissed. I.A. No.516/07 is also
dismissed.
Sd/=
K.M. JOSEPH, JUDGE
kbk.
// True Copy //
PS to Judge
S.A.508/95 B 9
S.A.NO. 508 OF 1995 B
JUDGMENT
27th May, 2009