Eranhal Karuvante Valappil Katherkutty Saheb v. Poolakkadan Mammad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932** **SA.No. 693 of 1993()** **-------------------------** ## **AS.35/1991 of SUB COURT, SULTHAN BATHERY OS.22/1983 of MUNSIFF MAGISTRATE COURT,MANANTHAVADY** **....................** ## **APPELLANT(S):1ST APPELLANT/2ND DEFENDANT** **----------------------------------------------------------** - ***1. ERANHAL KARUVANTE VALAPPIL KATHERKUTTY SAHEB AGED 82 YEARS,S/O. BAVACHI, PLANTER, RESIDING AT PALLIKKUNNU BUNGLAW, TELLICHERRY AMSOM, AND DESOM, ELLICHERRY TALUK.(DIED. LR'S IMPLEADED)** - **ADDL. APPELLANTS 2 TO 7 IMPLEADED** - ****2. P.K.MAYAN, S/O. KATHERKUTTY SAHEB,PALLIKKUNNU BUNGLAW, TELLICHERRY AMSOM, AND DESOM, ELLICHERRY TALUK.(DIED. LR'S IMPLEADED AS ADD. A8 TO A12).** **3. P.K.MOHAMMED, -DO- -DO-** **4. P.K.HARIS, -DO- -DO-** **5. P.K.JAMEELA, -DO- -DO-** **6. P.K.RAFIA. -DO- -DO-** **7. P.K.HASHIM, -DO- -DO-** - **THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 7 AS PER ORDER DATED 29/03/2001 IN C.M.P. NO.677/2001.** - **** ADDL. A8 TO A12 IMPLEADED** **8. K.M.AMINA, W/O. LATE P.K.MAYAN, KOYAPPATHODY BUNGLOW NELLIKODE AMSOM DESOM, CHEVAYUR P.O., KOZHIKODE.** **9. P.K.KADERKUTTY, S/O.LATE MAYAN, RESIDING AT -DO- -DO-** **...............2/-...** **svs** **...2...** - **SA.No. 693 of 1993 10. P.K.AHMEDKUTTY,S/O.LATE MAYAN, RESIDING AT -DO- -DO-** **11. P.K.KADEEJA, D/O.LATE MAYAN, RESIDING AT -DO- -DO-** **12. P.K.AYSHA, S/O.LATE MAYAN, REPRESENTED BY POWER OF ATTORNEY HOLDER P.K.AHAMMED KUTTY, RESIDING AT -DO-** - **** ADDL. APPELLANTS 8 TO 12 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SUPPLEMENTAL 2ND APPELLANT AS PER ORDER DATED 18/11/2010 IN I.A. NO.2786/2010.** ## **BY ADV. SMT.S.ANITHA** **ADDL.A3 & A4, A8 TO A12 BY ADV.CIBY THOMAS** ## **RESPONDENT(S):APPELLANTS 2 TO 5 AND RESPONDENTS/PLAINTIFF/ AND DEFENDANTS 3 TO 6.** **-----------------------------------------------------------------------------------** - *** *1. POOLAKKADAN MAMMAD, AGED 73 YEARS, S/O. CHEKKUTTY, PERIA AMSOM, ARAYAL DESOM, MANANTHAVADI TALUK, (DIED. LR'S IMPLEADED)** **2. MANNIL PATHUMMA, AGED 53 YEARS,S/O.HASSAN , ESTATE WORKER,RESIDING AT T.P.VI-127,PERIA AMSOM, ARAYAL DESOM, MANANTHAVADI TALUK.** **3. K.SASIKUMAR, AGED 38 YEARS,S/O.KANNAN, MAISTRY, ESTATE WORKER, RESIDING AT T.P.VI-127,PERIA AMSOM, ARAYAL DESOM, MANANTHAVADI TALUK.** **4. CHERUMALLY THEKKETHIL ABDURAHIMAN KUNHU, AGED 46 YEARS,S/O.MOIDEENKUNHU,RESIDING AT T.P.VI-127, PERIA AMSOM, ARAYAL DESOM, MANANTHAVADI TALUK.** **5. P.KADEESA, W/O.POOLAKKOTTU SAIDUTTY, PERIA AMSOM, VARAYAL DESOM, MANANTHAVADI TALUK.** - ***** ADDL. R6 TO R11 IMPLEADED** **6. POOLAKKADAN CHEKKU, POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** **7. POOLAKKADAN THAYIMA,POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** **8. POOLAKKADAN SAIDU,POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** ## **svs** **...........3/-...** **...3...** ## **SA.No. 693 of 1993** **9. POOLAKKADAN IBRAYI,POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** **10. POOLAKKADAN HAMSA,POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** **11. POOLAKKADAN KADEEJA,POOLAKKADAN HOUSE,VARAYAL P.O., TELAPUZHA VIA, MANANTHAVADI TALUK.** - ***** ADDL. RESPONDENTS 6 TO 11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 25/02/2009 IN I.A. NO.1344/2007.** **SINCE 1ST DEFENDANT IS AK T EASTE OF 2ND DEFENDANT, THE MANAGER IS NOT MADE A PARTY TO THIS APPEAL AND M.S.RAJ IS NOT IN SERVICE.** **R1 BY ADVS. SRI.M.VIJAYA KUMAR SRI.M.RAMESH CHANDER SRI.M.S.MANIKANDAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **P.BHAVADASAN, J.** ------------------------------------SA No.693 of 1993 ------------------------------------Dated this the 1[st] day of March 2011 ## Judgment The disappointed second defendant in OS No.22/83 before the Munsiff's Court, Mananthavady, is the appellant. He suffered a decree at the hands of the trial court, which was confirmed in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. During the pendency of the appeal before this court, the appellant and the first respondent died and their legal representatives have been brought on the party array. 2. The plaintiff obtained the plaint schedule property as per Ext.A7 purchase certificate dated 14.09.1972. There is a building consisting of a line of rooms in plaint A schedule property. In one of the rooms, the plaintiff's daughter-in-law, who is the supplemental defendant No.6, is residing and in the other rooms, supplemental defendants 3 to 5 are residing. It is alleged SA 693/93 2 that on 30.03.1983, the first defendant, along with his men, trespassed into plaint B schedule property and attempted to dig a well therein. The plaintiff filed a complaint before the police, but that was of no use. Since the plaintiff felt that the defendants may again try to enter into the plaint schedule property, he laid the suit for injunction. Later, the plaint was amended, incorporating the prayer for recovery of possession on the strength of title. Essentially, the claim was based on Ext.A7 purchase certificate. 3. The second defendant resisted the suit. He pointed out that the properties are not identifiable and that the plaintiff is not entitled to any relief. It was conceded by him that the plaintiff had taken 50 cents of land on oral lease from the said defendant and that property is shown in the commissioner's report. The second defendant pointed out that the plaintiff has no manner of right over the property shown in the plaint. On the basis of these contentions, he prayed for dismissal of the suit. SA 693/93 3 4. Defendants 3 to 5 filed a separate written statement, setting out their independent claims. The first defendant also filed a separate written statement, disputing the right of the plaintiff. 5. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A 38 from the side of the plaintiff. The defendants examined DWs 1 to 8 and had Exts.B1 to B16 marked. Exts.C1 to C7 are the commissioner's report and plan. 6. On the basis of the commissioner's report and other evidence available in the case, the trial court found that the plaintiff is entitled to the reliefs sought for and granted a decree in his favour. 7. Defendants 2 to 5 carried the matter in appeal as AS No.35/91 before the Sub Court, Sulthan Bathery. The lower appellate court, after an elaborate consideration of the evidence in the case, found that the trial court decree SA 693/93 4 is unassailable and confirmed the same. Consequently, the appeal was dismissed. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1. Whether in a suit for recovery on title, is not the plaintiff bound to prove the property claimed by him is the same as described in the title deed unless the discrepancies are satisfactorily explained. In this case, are the courts below correct in holding that Ext.A7 property has been correctly identified as plot A, B, C and D in Ext.C7 plan. 2. Are the courts below correct in relying on the entries in the panchayat extract to establish title over the building and land on which it stands especially when the occupation under the appellant ? 3. Whether the courts below are correct in discarding the evidence of the person in occupation of the surrendering land and the description of boundaries in their document ? 4. Whether the courts below were correct in casting the burden to identify the leased property on the lessor in a suit for recovery on title ? SA 693/93 5 9. The learned counsel for the appellant pointed out that the main issue that arose in the case was regarding the identification of the property over which the plaintiff laid claim as per Ext.A7 document. He pointed out that Ext.A7 is only a purchase certificate and it cannot confer title as the entries in the revenue records are insufficient to confer title on a person. In support of his contention, the learned counsel relied on the decisions reported in _**E.Parashuraman v. Doraiswamy**_ (2006) 1 SCC 658), _**Mohammed Kunhi v. Lakshmana Pai**_ (1969 KLT 894) and _**Gopalakrishna Guptan v. Ammalu Ammal**_ (1971 KLT 578). The learned counsel took this court through the survey number, boundaries and extent of properties claimed by the plaintiff and contended that the documents relied on by the plaintiff did not tally with the commissioner's report and that should have resulted in the dismissal of the suit. 10. Though the argument may look very SA 693/93 6 attractive at the first blush, on a closer scrutiny, it can be found to be without any basis whatsoever. Much reliance is placed on the survey number, boundaries and the nature of property. Before going further, it will be useful to locate the properties over which the claim is laid by the plaintiff. As already noticed, the plaintiff relies on Ext.A7 document by which he obtained assignment of 43.5 cents of land under various survey numbers. The commissioner has identified the plot covered by Ext.A7 as 'ABCD' in Ext.C7 plan. Both the courts below have considered the matter in considerable detail and have found that the property seen mentioned on the west of the property covered by Ext.A7 relates to the jenm right of the plaintiff. The reasons given for arriving at such a conclusion seem to be cogent, convincing and credit-worthy. It is interesting to note that the second defendant has a case that even EF plots have been trespassed upon and buildings have been put up by the respective persons. The lower appellate court has rightly noticed that if, as a matter of fact, there was any SA 693/93 7 trespass, the second defendant would not have simply kept silent. 11. The lower appellate court has considered the boundaries in various documents produced by the plaintiff and has come to the conclusion that the boundaries as shown in the amended plaint are true and correct. The finding of the courts below that the plaintiff has been able to get the property identified, is based on appreciation of evidence in the proper perspective. They are essential questions of fact. The contention regarding the survey number, boundaries etc., has been considered by the courts below in considerable detail. There is no reason to take a different view. No substantial questions of law arise for decision in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. ## **P.Bhavadasan, Judge** sta SA 693/93 8 SA 693/93 9