Kallyani Pankajakshy and others v. Krishnan Velayudhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932** **SA.No. 543 of 1998(F)** **-------------------------------** **AS. NO.173/1996 OF THE SUB COURT, NEDUMANGAD. OS. NO.388/1980 OF THE PRL.MUNSIFF COURT, NEDUMANGAD.** **........** ## **APPELLANT(S): APPELLANTS/PLAINTIFFS** **-------------------------------------------------------------** **1. KALLYANI PANKAJAKSHY, KAVINTHALA VEEDU ARYANAD, KOTTAKKSKOM MURI, ARYANAD VILLAGE. (DIED)** **2. PANKAJAKSHY SUJATHA OF DO. DO.** **3. NARAYANAN SUDHAKARAN, OF DO. DO.** **4. PANKAJAKSHY LALITHA OF DO. DO.** **5. NARAYANAN JAYACHANDRAN OF DO. DO.** **6. PANKAJAKSHY USHA OF DO. DO.** ***IST APPELLANT DIED. APPELLANTS 2 TO 6 ARE RECORDED AS THE LRS OF THE DECEASED IST APPELLANT AS PER ORDER DTD. 16.11.1998 ON MEMO C.F. NO.5074/1998.** ## **BY ADV. SRI.L.GOPALAKRISHNAN POTTI** ## **RESPONDENT(S): RESPONDENT/ DEFENDANT** **------------------------------------------------------------------** **1. KRISHNAN VELAYUDHAN, KIZHAKKUMKARA PUTHUVAL PUTHEN VEEDU, THOLOOR, CHITTUVEETTU MURI, UZHAMALACKAL VILLAGE.** **2. PACHI LEKSHMI, W/O. IST RESPONDENT OF DO. DO.** **tss** ## **S.A. NO.543/1998** ## ***ADDL.R3 TO R6 IMPLEADED.** **3. LAKSHMY BABY, KAVILTHALA VEEDU, THOLOOR ARYANAD.** **4. V.CHANDRAN, MECHANIC, K.S.R.T.C. DEPOT, NEDUMANGAD.** **5. V.JAYAMOHAN, KIZHAKKUMKARA PUTHUVAL PUTHEN VEEDU, THOLOOR DO. DO.** ## **6. V.RAJAN OF DO. DO.** ***THE CAUSE TITLE AMENDED BY INCLUDING THE NAMES ADDITIONAL RESPONDENTS 3 TO 6( LRS OF R1) THE AS PER ORDER DTD. 4.2.2000 ON CMP.2643/1998,** ## **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON 16/02/2011 DELIVERED THE FOLLOWING:** **tss** ## **ORDER ON CMP. NO.2290/1998 IN SA. NO.543/1998** ## **DISMISSED** **16/02/2011** **SD/- P.BHAVADASAN, JUDGE** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 543 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. ## **JUDGMENT** The plaintiffs in O.S. 388 of 1980, who were non-suited by both the courts below are the appellants. The suit was one for declaration, recovery of possession and other ancillary reliefs. 2. According to the plaintiffs, they obtained plaint A schedule property, which has an extent of 38 cents by virtue of Ext.A1 dated 4.10.1123, which was an acquisition in favour of the husband of the first plaintiff and father of the rest of the plaintiffs. The plaintiffs succeeded to the property as the legal heirs of Padmanabha Panicker Narayana Panicker. The defendants owned property on the north-eastern corner of plaint A schedule property. Since they did not have a convenient way to approach their property, they requested the plaintiffs to sell a portion of their land to S.A.543/1998. 2 the defendants. Accordingly Ext.A2 dated 12.3.1977 was executed in favour of the defendants assigning an extent of 2 cents on the eastern side of plaint A schedule property. While the plaintiffs were away and since there was no one to attend to the plaint A schedule property, taking advantage of the situation, it is alleged that the defendants appropriated a portion of the plaint A schedule property shown as plaint B schedule and reduced it into their possession. Inspite of demands, the defendants refused to vacate the property. Hence the suit. 3. Defendants resisted the suit. They pointed out that the attempt of the plaintiffs are to get property, which they did not obtain under Ext.A1. They disputed that plaint B schedule is a portion of plaint A schedule property. According to the defendants, they obtained 25 cents of property as per Ext.B1 dated 9.6.1924, which is an Ottikuzhikkanam deed executed in their favour by one Lekshmy. Later they obtained purchase certificate in respect of the property. Family of the assignor under Ext.B1 S.A.543/1998. 3 had instituted a suit for partition, in which the property obtained by the defendants was also included. In O.S. 191 of 1974 a preliminary decree was passed, the copy of which is Ext.B2. In Ext.B2 it was clarified that the property enjoyed by the defendants are not available for partition. Apart from the 25 cents obtained by the defendants, they also obtained 2 cents from the plaintiffs. They contended that 25 cents of property obtained by them lies within well defined and well demarcated boundaries and separated from the property owned and possessed by the plaintiffs. They also took up the contention that even if it is found that any portion of the property owned by the plaintiffs is in their possession, they had perfected title by adverse possession and limitation. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendants examined D.Ws. 1 to 5 and had Exts. B1 to B3 marked. Exts.C1 to C7 are the commission reports and plans. S.A.543/1998. 4 5. On an evaluation of the evidence in the case, the trial court found that the plaintiffs have not been able to establish their title or possession over plaint B schedule property. It was also found that the defendants had obtained purchase certificate in respect of 25 cents covered by Ext.B1 and that took in B schedule also. Finding that the plaintiffs had not succeeded in establishing their case, the suit was dismissed. 6. Plaintiffs carried the matter in appeal as A.S.173 of 1996 before the Sub Court, Nedumangad. The lower appellate court considered the evidence independently and reached the same conclusion as the trial court. It was found by the lower appellate court also that the plaintiffs have not succeeded in establishing their rights over plaint B schedule property and therefore the appeal was dismissed. 7. Notice is seen issued on the following questions of law: S.A.543/1998. 5 _“(i) Whether the proceedings under the Kerala Land Reforms Act without impleading the person who has title will confer title to the person claiming tenancy and whether the order will affect the title of the true owner._ _(ii) Whether a preliminary decree in a suit in which plaintiffs are not parties will affect the title of the plaintiff._ _(iii) Whether based on a preliminary decree dated 4.1.1977 and Land Tribunal Proceedings of 1975 can adverse possession under the Limitation Act in a suit filed in 1980 be established ._ _(iv) Are the principles of adverse possession applicable when the defendants have not specifically pleaded the claim of adverse possession._ _(v) Whether the burden of the defendants has been discharged.”_ 8. Learned counsel appearing for the appellants contended that the courts below have omitted to notice the fatal admissions made by the defendants, which would have clinched the issue. According to learned counsel, the S.A.543/1998. 6 southern boundary of the property obtained by the defendants is shown as property belonging to the plaintiffs. Further, when the defendants obtained 2 cents of property as per Ext.A2 dated 12.3.1977, they had admitted in the deed that the plaintiffs were the owners in possession of 38 cents of land, out of which they were purchasing 2 cents of property for a way. Thereafter, the defendants cannot be heard to contend that the plaintiffs did not obtain the extent of the property covered by Ext.A1. It was then contended that the courts below have not appreciated the evidence in the proper perspective and that has resulted in miscarriage of justice. 9. Per contra, learned counsel appearing for the respondents pointed out that both the courts below have concurrently found that the plaintiffs have no title and has never been in possession of the disputed property. It was contended on behalf of the respondents that merely because in Ext.A2 it is mentioned that out of 38 cents obtained by the plaintiffs, 2 cents were being assigned to the defendants, S.A.543/1998. 7 that does not mean that that is an admission on behalf of the defendants that the plaintiffs obtained 38 cents of property as claimed by them as per Ext.A1. Learned counsel pointed out that in fact a close scrutiny of the documents produced by either side will clearly show that the plaintiffs could not have obtained 38 cents as claimed by them. Attention was drawn to the fact that Ext.A1 document was executed by the legal heirs of one Kochan. In fact Kochan had already assigned 25 cents to the assignor of Ext.B1 much earlier. It was without excluding the property so assigned by Kochan that the legal heirs of Kochan had assigned 38 cents to the plaintiffs. The plaintiffs never obtained possession of the entire 38 cents as claimed by them. Attention was drawn to the fact that the plaintiffs were laying claim to a property with reference to which purchase certificate has been obtained by the defendants. Further, it would be clear on an appreciation of the evidence that the allegation that the defendants have trespassed into the property recently will be found to be totally false since S.A.543/1998. 8 the residential house in which the defendants reside is in the disputed portion of the property and the house constructed, going by the commission report, is about 30 years old. 10. It was these overwhelming items of evidence, which had persuaded the courts below to hold against the plaintiffs. It was contended that there is nothing to show that the courts below have misdirected themselves in the appreciation of the evidence or that their findings are perverse. Therefore, no interference is called for in Section 100 of the Code of Civil Procedure. 11. Even though learned counsel for the respondents pointed out that Kochan, the predecessor in interest of the assignor of the plaintiffs, had assigned 25 cents on the northern side of one and odd acres of land, no documents were produced by the defendants either in the trial court or before the lower appellate court. They have not produced any document before this court also. Going by the document, namely, Ext.A1 produced by the plaintiffs, they seem to have obtained 38 cents of land. According to S.A.543/1998. 9 the plaintiffs, the defendants had trespassed into about 13 cents of property belonging to the plaintiffs and they are entitled to recover the same. The defendants on the other hand would contend that the plaintiffs had never obtained title or possession of the disputed property and it was covered by the documents of title relied on by the defendants. 12. It is true that in Ext.B1 the southern boundary of the property obtained by the defendants is shown as the property belonging to the plaintiffs. It is also true that by Ext.A2 dated 12.3.1977 the defendants have purchased 2 cents on the eastern side of the 38 cents possessed by the plaintiffs. The question is whether these facts by themselves are sufficient to come to the conclusion that the plaintiffs are the owners of the disputed property, which is about 13 and odd cents. 13. One has to necessarily refer to Ext.B1 document, by which the defendants claimed to have obtained the property. That is an ottikuzhikkanam deed. S.A.543/1998. 10 The assignor traces his title to the property under a partition deed of the year 1103. It takes in 25 cents of land. One may here at once recall that the documents of title relied on by the plaintiffs is of the year 1123. True, Ext.B1 is dated 9.6.1924, which is after execution of Ext.A1. But as already noticed, in Ext.B1 the assignor traces title to the document of the year 1103, which is much earlier to the document in favour of the plaintiffs. It would appear from a reading of Ext.B1 that the property was outstanding with the family of the assignor in the said document and the assignor got the property under partition deed of the year 1103. One may here also notice that subsequently one of the members of the family belonging to the assignor under Ext.B1 instituted a suit for partition, in which he had included the property assigned under Ext.B1 and sought partition of the same. The suit was O.S. 191 of 1974 of the Munsiff's Court, Nedumangad. Ext.B2 is the preliminary decree passed in the said suit. Strangely enough the judgment does not appear to have been produced. 11 S.A.543/1998. 14. Learned counsel appearing for the respondents pointed out that in the said suit even though property obtained by the defendants under Ext.B1 was included, the court found that it was not available for partition. As already noticed, the judgment has not been produced. However, the preliminary decree produced shows that this item is excluded from partition. Reasons are not available, since judgment as such is not produced. 15. Next comes the claim based on the purchase certificate obtained as per Ext.B3 order. It appears that the defendants had moved the Land Tribunal for assignment of the right, title and interest of the property obtained by them under Ext.B1 and Ext.B3 is the order granting them purchase certificate. There is no dispute regarding the fact that the said purchase certificate takes in the disputed property also. 16. Learned counsel for the appellant pointed out that the appellants are not parties to the proceedings and therefore it is not binding on them. No reliance could S.A.543/1998. 12 therefore be placed on that document to negative the claim put forward by the plaintiffs. 17. True, the plaintiffs are not parties to the said proceedings. But a look at the various provisions under the Kerala Land Reforms Act dealing with the application for purchase certificate and procedure to the followed thereafter would clearly show that a notice is envisaged and that has infact been issued in the case on hand. Section 72K of the KLR Act says that a purchase certificate obtained is an acquisition of the right, title and interest of the land owner by the person, who has been issued with the purchase certificate. In the decision reported in **Lakshmi v. Viswanathan** (1999(2) K.L.T. 621) it was held as follows: _“A cultivating tenant is a person always in possession of the property concerned. Such a certificate is issued by a competent Land Tribunal after finding that he was in possession of the scheduled properties as a cultivating tenant. S.72K(2) says that such a certificate when issued shall be conclusive proof of the assignment to the tenant of right, title and interest of the land owner_ S.A.543/1998. 13 _and the intermediaries if any over the holding or portion thereof to which assignment relates. Tenant means a cultivating tenant always in possession of the proceedings. Therefore, such certificate is the conclusive proof of possession as well. Unless that certificate is set aside by a competent authority or in a court of law, the statutory enforcement in terms of S.72K(2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties.”_ 18. The person to whom purchase certificate is issued is deemed to be in possession of the property. Therefore, it could not be said that the purchase certificate obtained as per Ext.B3 order can be simply ignored. How far it is binding on the plaintiffs is a different question. But that is prima facie sufficient to show that the defendants have been in possession atleast from the date of the order in the O.A. which relates back to 1975. One may now refer to the commission report. Ext.C7 is the plan accepted by the S.A.543/1998. 14 courts below. In the said plan, GHFI is shown as the plot in the possession of the plaintiffs, where they also reside. KABCDL is the property in which the defendants reside. AMGFNCB is the disputed property. IJDN is the narrow strip of land of 2 cents purchased by the defendants from the plaintiffs as per Ext.A2. 19. On an appreciation of the evidence, the courts below have come to the conclusion that even though the documents of title of the plaintiffs takes in 38 cents of property, they did not get possession of that extent of property. The courts below have given cogent reasons for arriving at such a conclusion. Reliance has been placed on Exts.B2 and B3 for arriving at the said finding. Both the courts below seems to have accepted that Kochan, the predecessor-in -interest of both the parties, had assigned 25 cents to Vally Parvathy. As per the partition in the family of Vally Parvathy, 25 cents was conveyed to Parvathy Lekshmi, who in turn assigned the same to the second defendant as per Ext.B1. The courts below were therefore S.A.543/1998. 15 of the opinion that the assignment in favour of the plaintiffs could not take in portion of 25 cents already assigned by Kochan in favour of Vally Parvathy. The courts below have also noticed the recitals in Exts.A1 and B1 are almost similar. 20. One may now refer to the evidence of P.W.1 in this regard. The first plaintiff examined himself as P.W.1. In cross-examination he admitted that if plaint B schedule, which is the disputed property, is to be given to the plaintiffs, necessarily the defendants will have to demolish the house in which they reside. But P.W.1 says that he is willing to take the property with the building therein. He admitted that the building has been in existence for over 10 to 20 years and that the defendants have been residing in the said building. 21. The commissioner was examined as P.W.3. In cross examination, he deposes that on inspection at the spot, it was impossible to identify the plaint schedule property going by the description in the plaint. The S.A.543/1998. 16 commissioner has also stated that the house in which the defendants reside is about 30 years old. If the property is to be measured going by the plaint description, then the boundary will run through the middle of the building where the defendants and family reside. 22. Apart from the fact that it is highly improbable that the plaintiffs would have obtained the entire extent of property covered by Ext.A1, the allegation of recent trespass is also false going by the evidence given by P.W.1 himself. It is clear that in the disputed portion of the property the defendants had put up a building and had been residing there for a long time. 23. It was the above facts and circumstances, which had persuaded the courts below to arrive at a finding that the plaintiffs did not obtain possession of the disputed property. The findings are based on evidence on record and it is a finding of fact. There is nothing to show that the findings entered are either perverse or unwarranted by the evidence on record. No justifiable grounds are made out to S.A.543/1998. 17 interfere with the judgments and decrees of the courts below. The result is that, this appeal is without merits and it is liable to be dismissed. I do so with costs to the respondents. **P. BHAVADASAN, JUDGE** sb.