Kanangottu Purushothaman v. Vadakke Kannanchalil Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934** ## **SA.NO. 294 OF 2001 ( )** **----------------------------------AS.12/1998 OF PRINCIPAL SUB COURT, KOZHIKODE OS.129/1985 OF PRINCIPAL MUNSIFF'S COURT, KOZHIKODE-II** ## **APPELLANT/APPELLANT/PLAINTIFF:** **-----------------------------------------------------** **KANANGOTTU PURUSHOTHAMAN, SON OF SANKARAN, AGED 57 YEARS, RESIDING AT ADAMBATTU MEETHAL, NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK.** **BY ADVS.SRI.N.NEELAKANDHAN NAMBOODIRI SRI.P.S.NARAYANA RAJA** **RESPONDENT/RESPONDENT/DEFENDANT(S): ------------------------------------------------------------------** **VADAKKE KANNANCHALIL KRISHNAN, SON OF CHOYIKUTTY, AGED NOT KNOWN, RESIDING IN KOTTOOLI AMSOM, CHEVAYUR DESOM, KOZHIKODE TALUK.** **ADDITIONAL RESPONDENTS IMPLEADED ---------------------------------** **2. GIRISAN, AGED 47 YEARS, S/O.IMBICHIKUTTY, MANAKAKULANGARA, KOMMERI DESOM, P.O. KOMMERY, VALAYANADU VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** ## **S.A. No.294 of 2001** **3. N.T. BINDU, AGED 33 YEARS, W/O.GIRISAN, MANAKKULANGARA, KOMMERI DESOM, P.O. KOMMERI, VALAYANADU VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT** **ARE IMPLEADED AS PER ORDER DATED 1.2.2012 IN I.A. NO.267 OF 2012.** **BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) BY ADV. SRI.K.MOHANA KANNAN R1 BY ADV. SRI.M.PREMKUMAR ADDL. R2 & 3** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2012, ALONG WITH CRP. 1570/2003 CRP. 1685/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== S.A. No.294 of 2001, C.R.P. No.1570 of 2003 & C.R.P. No.1685 of 2003 ==================================== Dated this the 19[th] day of June, 2012** ## **J U D G M E N T** Though the second appeal was admitted and notice was issued on all the substantial questions of law urged in the memorandum of appeal, after hearing learned counsel on both sides the following substantial question of law is framed for a decision: Whether the courts below are legally and factually correct in entering a finding that the appellant has no possession of the suit property? 2. This Second Appeal arises from the judgment and decree of learned Principal Munsiff, Kozhikode in O.S. No.129 of 1985 as confirmed by the learned Sub Judge, Kozhikode in A.S. No.12 of 1998. 3. Appellant-plaintiff sued the first respondentdefendant for a decree for prohibitory injunction against trespassing into or removing/altering the boundaries of the suit ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 2 :- property described as 60 cents in R.S. No.126/2 and lying within the boundaries mentioned in the plaint schedule (Additional respondents 2 and 3 are impleaded as pendente lite assignees of portion of property from the first respondent. They have appeared through counsel). According to the appellant, the suit property belonged to the Zamorin Kovilakam wherefrom it was taken on oral lease, on his behalf by Chathu, his paternal uncle in the year, 1957 as he then was a minor with obligation to pay rent at the rate of Rs.3/- per annum. After the appellant attained majority, he got possession of the property and continued as a cultivating tenant. While so, he obtained Ext.A8, purchase certificate dated 09.07.1982 as per Ext.A9, assignment order dated 30.06.1982 in O.A. No.76 of 1982 of the Land Tribunal, Kozhikode (for short, “the Tribunal”). Appellant alleged that the respondent who is in possession of some property on the southern side of the suit property attempted to trespass into the suit property and remove/alter its boundaries. Hence the suit. 4. Fist respondent contended that appellant has no title or possession of the suit property and that it belongs to and is in his possession. Appellant has created some documents to make it ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 3 :- appear that the suit property belongs to and is in his possession. Respondent's father acquired certain items including the suit property as per Ext.B1, kanom demise of the year, 1944. After the death of the father, there was a partition in the family as per document No.40 of 1961 as per which the suit property along with other items was allotted to the share of the first respondent. He obtained Ext.B12, purchase certificate dated 13.03.1985 for one acre including the suit property as per assignment order dated 14.01.1977 in O.A. No.3510 of 1976 of the Tribunal. 5. The trial court was not impressed by the version of the appellant that his paternal uncle Chathu, at a time when he was a minor had taken lease of the suit property from the Zamorin Kovilakam. Trial court also found that evidence adduced by the appellant to prove his possession cannot be accepted. Consequently the suit was dismissed. 6. Appellant challenged that judgment and decree in A.S. No.12 of 1998. While that appeal was pending before the learned Sub Judge, appellant filed I.A. No.3290 of 2000 under Rule 27 of Order XLI of the Code of Civil Procedure (for short, “the Code”) to receive additional evidence and produced five revenue receipts ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 4 :- for the period from 1988-89 to 1999-2000 in respect of the 60 cents in R.S. No.126/2. Appellant filed I.A. No.3243 of 2000 to direct the Village Officer concerned to produce certain documents in respect of the property comprised in R.S. Nos.106/2, 126/2, 127/2 and 128. 7. On the above said applications learned Sub Judge ordered notice and counter and posted the same on 28.06.2000. Thereafter the said applications were posted on 14.07.2000. The appeal was dismissed on 14.07.2000. I.A. Nos.3290 and 3342 of 2000 were disposed of as under: “Appeal dismissed. Petitions closed”. 8. In S.A. No.294 of 2001, judgment and decree of the learned Sub Judge confirming the judgment and decree passed by the learned Principal Munsiff is under challenge on the substantial question of law I have now framed. 9. In the meantime, with respect to the purchase certificates the parties obtained, they did not remain idle. There were moves and counter moves. First respondent filed C.P. No.69 ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 5 :- of 1985 almost after 8½ years after the order dated 14.01.1977 directing issue of Ext.B12, purchase certificate in his favour for correction of R.S. No.125/2 mentioned in the order and Ext.B12, to R.S. No.126/2. That was allowed by the Tribunal. 'R.S. No.125/2' was corrected in the assignment order dated 14.01.1977 and Ext.B12, purchase certificate as 'R.S. No.126/2'. 10. Appellant, claiming that he had no notice of C.P. No.69 of 1985 and the proceeding thereon, challenged that order in A.A. No.208 of 1986 before the Land Reforms Appellate Authority, Kozhikode (for short, “the Appellate Authority”). That appeal was allowed on 30.09.1987, order on C.P. No.69 of 1985 was set aside and that petition was remitted to the Tribunal for fresh decision after hearing both sides. 11. First respondent challenged Ext.A9, order dated 30.06.1982 in O.A. No.76 of 1982 and Ext.A8, purchase certificate dated 9.07.1982 in favour of the appellant concerning the 60 cents in R.S. No.126/2 by filing A.A. No.156 of 1985 before the Appellate Authority. After filing that appeal, first respondent filed I.A. No.31 of 1985 obviously under Section 72MM(7) of the Kerala Land Reforms Act (for short, “the Act”) for cancellation of ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 6 :- Ext.A9, order and Ext.A8, purchase certificate. That application was filed with a delay of 2½ years and hence first respondent filed I.A. No. 43 of 1985 to condone the delay. 12. In the meantime, first respondent withdrew A.A. No.156 of 1985 in challenge of Ext.A8, purchase certificate and Ext.A9, order in O.A. No.76 of 1982 (obviously in view of the filing of I.A. Nos.31 and 43 of 1985). 13. On 11.03.1988 the Tribunal dismissed I.A. Nos.31 and 43 of 1985. First respondent challenged the order on I.A. No.43 of 1985 in A.A. No.59 of 1988. The Appellate Authority allowed that appeal on 30.09.1989 and admitted I.A. No.31 of 1985 to the file (by condoning the the delay vide order on I.A. No.43 of 1985). I.A. No.31 of 1985 was remitted to the Tribunal for fresh decision. The Appellate Authority also directed that I.A. No.31 of 1985 be decided along with C.P. No.69 of 1985 in O.A. No.3510 of 1976 (remitted to the Tribunal as per order in A.A. No.208 of 1986 filed by the appellant). 14. After remand the Tribunal, by order dated 30.10.1995 allowed I.A. No. 31 of 1985 and cancelled Ext.A9, assignment order dated 30.06.1982 and Ext.A8, purchase certificate dated ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 7 :- 09.07.1982 in O.A. No.76 of 1982. C.P. No.69 of 1985 was also allowed whereby R.S. No.125/2 in the assignment order dated 14.01.1977 and Ext.B12, purchase certificate in favour of the first respondent was corrected as R.S. No.126/2. 15. It was then the turn of the appellant. Against the order on C.P. No.69 of 1985 and I.A. No.31 of 1985 he filed A.A. Nos.349 and 350 of 1997, respectively. By common order dated 27.11.2002 the Appellate Authority allowed both the appeals and set aside the order of the Tribunal allowing I.A. No.31 of 1985 and C.P. No.69 of 1985 holding that first respondent has no right, interest or possession of the property comprised in R.S. No.126/2. Consequent to the said order dated 21.11.2002, the Appellate Authority directed the Tribunal to issue a formal order (in O.A. No.76 of 1982 as it has been cancelled by the Tribunal as per order on I.A. No.31 of 1985). First respondent challenges the common order in A.A. Nos.349 an 350 of 1997 in C.R.P. Nos.1570 and 1685 of 2003. 16. The learned counsel for appellant (first respondent in the Civil Revisions) contended that the finding of the trial and first appellate courts as to the possession of the suit property ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 8 :- claimed by the appellant is perverse. According to the learned counsel, relevant documents and the position of law were not taken into account. It is argued that a purchase certificate issued under Sec.72K of the Act is conclusive proof of assignment of landlord's right, title, interest and evidence of possession of the cultivating tenant in the property. Reliance is placed on the decision in **Lakshmi v. Viswanathan** (1999 (2) KLT 621). It is contended that the trial and first appellate courts failed to take notice that the claim of first respondent can only relate to the property comprised in R.S. No.125/2 or R.S. No.127/2 (as the case may be) and not to any inch of land in R.S. No.126/2. It is pointed out by the learned counsel that the boundary descriptions in the document of title relied on by the first respondent and Ext.B12, purchase certificate do not tally with the boundary descriptions of the suit property and the property referred to in Ext.A8, purchase certificate dated 09.07.1982. If that be so, it is contended that first respondent had no right or authority to challenge Ext.A8 and A9, purchase certificate and order, respectively in O.A. No.76 of 1982 or claim to be in possession of the suit property. Learned counsel contended that the first ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 9 :- appellate court was not right in dismissing I.A. Nos.3290 and 3342 of 2000 without a speaking order and that too, closing the applications for the reason that the appeal was dismissed. Learned counsel invited my attention to the decision in **Sankaranarayanan v. Ram Gupthan** (1979 KLT 744 - paragraph 7) to contend that though it is not essential, it was desirable that learned Sub Judge passed a speaking order on I.A. No.3290 and 3342 of 2000. 17. Referring to the decision of the Appellate Authority which is under challenge in C.R.P. Nos.1570 and 1685 of 2003 learned counsel for the appellant (first respondent in the Civil Revisions) contended that it is after about 8½ years of the order dated 14.01.1977 in O.A. No.3510 of 1976 that the first respondent came with an application for correction of re-survey number in the assignment order and Ext.B12, purchase certificate. It is contended that in so far as the first respondent has no right or interest in the suit property which is the subject matter of O.A. No.76 of 1982, question of first respondent seeking cancellation of Ext.A9, order and Ext.A8, purchase certificate in O.A. No.76 of 1982 does not arise. It is pointed out ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 10 :- by the learned counsel that even under Sec.72MM(7) of the Act, only person who is affected by the assignment order could apply for cancellation. 18. Learned Senior Advocate for the first respondent in the Second Appeal (petitioner in the Civil Revisions) contended that it is based on fictitious documents that appellant claimed title and possession of the suit property as found by the trial and first appellate courts. Relying on the decision in **Manickan v. Kanakam** (AIR 1991 Kerala 316) it is contended that the civil court has jurisdiction to decide whether the assignment order (Ext.A9) and purchase certificate (Ext.A8) are obtained fraudulently and while deciding that question, to decide who is the cultivating tenant of the suit property. It is pointed out by the learned Senior Advocate that even the evidence of P.Ws.2 and 3 relied on by the appellant would not salvage the situation since their evidence would show that appellant has no right or interest in any property in R.S. No.126/2. It is contended that no document worth the name was produced by the appellant to show his possession of the suit property and in the circumstances, the finding of fact entered by the trial court and confirmed by the first ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 11 :- appellate court requires no interference as no substantial question of law is involved. 19. Referring to the Civil Revisions it is contended by the learned Senior Advocate that it is without compliance of Sec.72MM(4) of the Act that appellant has clandestinely obtained the purchase certificate in collusion with the Receiver of the Zamorin Kovilakam. No notice as required under the law was either issued or published. No notice was given to the first respondent (petitioner in the Civil Revisions). Hence Exts.A8 and A9 are not conclusive as against the first respondent. According to the learned Senior Advocate, the Tribunal was right in cancelling Ext.A8, purchase certificate and Ext.A9, order in O.A. No.76 of 1982 and allowing the correction petition in O.A. No.3510 of 1976. It is argued that in the circumstances the Appellate Authority was not right in reversing the order of the Tribunal. 20. In view of the nature of the substantial question of law I have framed in the Second Appeal which has a bearing on the correctness of the assignment order and purchase certificates parties are relying, I shall first consider the challenge to the order ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 12 :- of the Appellate Authority in A.A. Nos.349 and 350 of 1997 which is under challenge in the Civil Revisions. 21. Appellant claims to be the cultivating tenant in possession and enjoyment of 60 cents in R.S. No.126/2. According to the appellant, his paternal uncle Chathu, at a time when he was minor, in the year 1957, had taken that property under an oral lease from the Zamorin Kovilakam. He produced certain documents before the Tribunal in (O.A. No.76 of 1982) support of his plea that he is in possession of the suit property in R.S. No.126/2 as cultivating tenant. Exhibit A9 is the assignment order passed by the Tribunal in O.A. No.76 of 1982. Exhibit A9 shows that the Zamorin Raja Estate was represented in O.A. No.76 of 1982 by P.K. Kutty Anujan Raja, one the joint Receivers. Exhibit A9, order says that the appellant and the respondent in O.A. No.76 of 1982, the Receiver representing the landlord filed Form J statement with respect to the sixty cents in R.S. No.126/2. The order further states that notices were duly served and published as contemplated under the Act and the Rules. The application was posted for hearing on 30.06.1982. On that day, appellant claiming to be the cultivating tenant and the ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 13 :- landlord were present. The Tribunal caused detailed enquiry to be conducted. The landlord agreed to assign jenm right to the appellant free of compensation. The application was allowed and the Tribunal ordered to issue purchase certificate to the appellant in respect of the 60 cents in R.S. No.126/2. It is accordingly that Ext.A8, purchase certificate was issued to the appellant with respect to the 60 cents in R.S. No.126/2 lying within the boundaries mentioned therein. 22. Exhibit A16 (marked in the original suit) is the copy of statement filed on behalf of the landlord in A.A. No.208 of 1986 filed by the appellant before the Appellate Authority. There, the Estate Receiver stated that the 60 cents comprised in (old Sy. Nos.160/3 and 161/2B2) R.S. No.126/2 and lying within the boundaries mentioned in Ext.A8, purchase certificate is in the possession and enjoyment of the appellant and that pursuant to the J form signed by the parties, purchase certificate was issued in favour of the appellant. It is further stated in Ext.A16 that the first respondent (petitioner in the Civil Revisions and the first respondent in A.A. No.208 of 1986) is in possession of some property near the said 60 cents and in respect of that property, ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 14 :- first respondent has obtained purchase certificate (Ext.B12) in O.A. No.3510 of 1976. 23. Learned Senior Advocate has contended that Ext.A9, order and Ext.A8, purchase certificate are null and void as it is obtained fraudulently. It is argued that all the necessary parties were not given notice of the said proceeding, not to say that the first respondent did not get any notice of the proceeding. 24. It is seen from Ext.A9, order that it is after compliance with the relevant provisions of the Act that the J Form was accepted and Ext.A9, order was passed in favour of the appellant pursuant to which Ext.A8, purchase certificate was issued. There is nothing on record to show that Ext.A9, order was passed and Ext.A8, purchase certificate was issued in violation of any of the provisions of the Act and Rules. Exhibit A9 states that notice was duly published and issued to all parties concerned. The landlord was represented by its authorised representative, the joint Receiver. Legality and regularity of official acts are to be perused. This Court cannot for the mere assertion however vehement it be, start with any presumption that Ext.A9, order was passed and Ext.A8, purchase certificate was issued violating the provisions of ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 15 :- the Act and the Rules particularly as Ext.A9, order itself says that all the relevant provisions were complied. And so far as the first respondent (petitioner in the Civil Revisions) is concerned, question of issuing notice to him did not arise since by order dated 14.01.1977 in O.A. No.3510 of 1976 it was directed to issue purchase certificate to him for the land comprised in a different re-survey number (R.S. No.125/2) and lying within entirely different boundaries. 25. Exhibit A9, order and Ext.A8, purchase certificate I must notice, are with respect to the 60 cents in R.S. No.126/2 lying within the boundaries mentioned in Ext.A8, purchase certificate while the claim of the first respondent was with respect to either the property comprised in R.S. No.125/2 (as originally stated in O.A. No.3510 of 1976 and Ext.B12, purchase certificate) or R.S. No.127/2 referred to in Ext.B1 [marked in the civil court]). It is seen from the records that the boundary descriptions of the 60 cents in R.S. No.126/2 claimed by the appellant and the one acre claimed by the first respondent be it in R.S. Nos.125/2 or 127/2 are totally different. The claim of the first respondent was to a totally different land. In such a situation ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 16 :- first respondent could not have asked for cancellation of the order in O.A. No.76 of 1982. 26. Nor could the first respondent seek a correction of the re-survey in the assignment order dated 14.01.1977 and/or and Ext.B12, purchase certificate in O.A. No.3510 of 1976. It is seen from Ext.B12 that the request was to correct R.S. No.125/2 into R.S. No.126/2. In Ext.B1, kanom demise of 1944 relied on by the first respondent, the re-survey number stated is '127/2'. Boundaries mentioned in that document for that property is also different. If that be so, first respondent could not have sought a correction of the re-survey number in O.A. No.3510 of 1976 without any basis. Learned counsel for appellant points out that in Ext.R1, the prior document of Ext.B1 produced in the Tribunal, the re-survey number stated is 125/2. There was absolutely no material to show that first respondent acquired right, interest or possession of any land in R.S. No.126/2. On going through the order in A.A. Nos.349 and 350 of 1997, I find that the Appellate Authority came to the conclusion that the first respondent has no possession of the 60 cents in R.S. No.126/2 with respect to which appellant was assigned landlord's right and to which Exts.A8 and ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 17 :- A9 relate. In that view of the matter, the Appellate Authority has correctly allowed A.A. Nos.349 and 350 of 1997. 27. It is seen from the common order in A.A. Nos.349 and 350 of 1997 that the Appellate Authority has directed the Tribunal to pass a formal order pursuant to the disposal of I.A. No.31 of 1985. That does not mean that the said application was remitted to the Tribunal for fresh decision. Direction issued to the Tribunal consequent to allowing A.A. Nos.349 and 350 of 1997 is only to pass a formal order in O.A. No.76 of 1982 as contemplated under Sec.102(4) of the Act. The said provision says that where there has been any modification in appeal from any decision or order of the Land Tribunal such decision or order shall be modified accordingly. It is therefore clear that the direction issued by the Appellate Authority while allowing A.A. Nos.349 and 350 of 197 to the Tribunal is to pass consequential orders in O.A. No.76 of 1982 (as the order had been cancelled by the Tribunal pursuant to its decision on I.A. No.31 of 1985) in view of the finding that first respondent has no right, interest or possession of the 60 cents in R.S. No.126/2. 28. In the light of what I have stated above, I do not find ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 18 :- reason to interfere with the order passed by the Appellate Authority in A.A. Nos.349 and 350 of 1997. It follows that the Civil Revisions are to fail. 29. Turning to the claim of possession made by the appellant in O.S. No.129 of 1985, learned Munsiff was not impressed by the case pleaded by the appellant that at a time when he was a minor, his paternal uncle, Chathu obtained an oral lease in the year, 1957. Learned Munsiff wondered why at a time when the father of the appellant was alive, his paternal uncle took the task of obtaining an oral lease. Learned Munsiff also found that as per the version of the appellant, he got possession of the property after he attained majority but he admitted that he did not get possession during the lifetime of his paternal uncle. Appellant when examined as P.W.1 stated that the said Chathu died in the year 1965. Learned Munsiff opined that appellant had no possession of the suit property till 1965 and that there is no satisfactory answer to the question when he got possession. Learned Munsiff also held that there is no documentary evidence to show possession claimed by the appellant for the period from 1960 to 1979. ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 19 :- 30. So far as Exts.A1 to A4 and A10, receipts for payment of revenue is concerned, learned Munsiff held that those receipts would not show that it concern the suit property as the survey number is not stated. Exhibit A5, rent receipt is in the name of one 'Chandran'. Learned Munsiff also took the view that it is not shown that the said receipt refers to the suit property. Exhibit A6 is another receipt dated 25.03.1982 produced by the appellant. Learned Munsiff observed that the re-survey number originally mentioned in Ext.A6 as 106/2 was corrected as 126/2, the correction is not shown to be with proper authority and hence Ext.A6 cannot be looked into. Evidence of Pws.1 to 3 was not accepted. 31. Referring to the various documents produced by the first respondent before the learned Munsiff, it is observed in paragraph 16 of the judgment that most of those documents are not relevant as it did not pertain to the suit property and that those documents related to the property comprised in R.S. No.127/2. Learned Munsiff was of the view that it was not necessary to decide whether respondent is in possession of the suit property as being a suit for injunction the question is whether ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 20 :- appellant is in possession of the property. The first appellate court without much effort agreed with the view of learned Munsiff. It did not even consider I.A. Nos.3290 and 3342 of 2000 filed by the appellant to receive/call for additional evidence and after dismissing the appeal closed those applications for the reason that the appeal is dismissed. 32. P.W.2, one of the joint Receivers of the Zamorin Kovilakam (admittedly the landlord of the suit property) has given evidence that the suit property was taken on lease by the guardian of the appellant and that appellant used to pay rent for the property. Appellant is in possession of the suit property. The Receivers used to issue receipts for acceptance of rent. With reference to Ext.A6, P.W.2 stated that the said receipt is signed by one of the joint Receivers of the Zamorin Kovilakam (he identified the signature) and that Ext.A6 is written in the handwriting of Narayanan Nair, the clerk of the Kovilakam (who expired sometime in 1995). P.W.2 identified the handwriting of the said Narayanan Nair in Ext.A6. He also stated about the purchase certificate issued to the appellant concerning the suit property pursuant to the J Form signed by the appellant and the ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** ## -: 21 :- joint Receiver on behalf of the Kovilakam. In cross examination he admitted that there is a correction of the re-survey number in Ext.A6 from 106/2 to 126/2. P.W.2 was not able to say whether that correction was made before or after Ext.A6 was signed by the joint Receiver. He admitted Ext.A5, rent receipt. He stated that it is with reference to the property referred to in Ext.A6 that J Form was signed for assignment of landlord's right in favour of the appellant (the question to P.W2 was to make it appear that O.A. No.76 of 1982 was with respect to the property comprised in Sy. No.106/2). 33. P.W.3 is another witness examined by the appellant to prove his possession of the suit property. He is a witness in the J Form submitted by the appellant and the joint Receiver of the Zamorin Kovilakam in O.A. No.76 of 1982. He claimed that the 60 cents in R.S. No.126/2 is in the possession and enjoyment of the appellant and that possession of the first respondent is with respect to the adjoining land. In cross-examination he asserted that he signed as a witness in the J Form (in O.A. No.76 of 1982) with respect to the property comprised in R.S. No.126/2. But he was not able to recollect from his memory how many J ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** ## -: 22 :- forms were signed by the joint Receiver each day. It was suggested to him that appellant has no inch of land in his possession in R.S. No.126/2 but that was refused by P.W.3. In re-examination the witness asserted that it is towards the northern side of the property in the possession of the first respondent, comprised in R.S. No.126/2 that appellant is in possession of the 60 cents. 34. Learned Senior Advocate for the first respondent has made much emphasis on the above statement of P.W.3 in reexamination to contend that first respondent possesses property in R.S. No.126/2. But merely based on the above said stray statement of P.W.3 in re-examination, I am unable to find particularly in the light of Exts.B1 and Ext.B12 that first respondent has possession of property in R.S. No.126/2. 35. I referred to Ext.B1 to say that the title and possession claimed by the first respondent as per that document is concerning the property comprised in R.S. No.127/2. Learned counsel for appellant pointed out that in Ext.R1, prior document of Ext.B1 (produced in the Tribunal, the re-survey number of the property in the possession of the first respondent is ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 23 :- stated as 125/2 ([which is carried over in Ext.B12]). 36. It is relevant to refer to Exts.C1 and C1(a). The Advocate Commissioner has identified the suit property with the assistance of a Surveyor. Plot “ABCDEFGHIJKLMNOP” is the entire property available in R.S. No.126/2. Plot “ABCDEXWVUTSRQP” is the suit property comprised in R.S. No.126/2, the extent of which was found to be 59.5/8 cents (as against 60 cents referred to in Exts.A8, A9 and the plaint schedule). As per Exts.C1 and C1(a), the property comprised in R.S. No.127/2 is on the west of the suit property. 37. So far as the documentary evidence appellant has produced is concerned, I referred to Ext.A16, which is the copy of statement filed by the Joint Receiver before the Appellate Authority with reference to the claim made by the first respondent for correction of the re-survey number in his purchase certificate and cancellation of Exts.A8 and A9 in favour of the appellant. There, it is specifically stated that appellant is in possession of the 60 cents in R.S. No.126/2 and that possession of the respondent is not near the said 60 cents. 38. While deciding the correctness of the order passed by -: 24 :- ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** the Appellate Authority in A.A Nos.349 and 350 of 1997 in the Civil Revisions I found that there is no reason to interfere with the said order of the Appellate Authority. If that be so, the purchase certificate (Ext.A8) issued in favour of the appellant is evidence of his possession of the suit property. 39. It is seen from the judgment that learned Munsiff has not given much consideration for the evidence of Pws.2 and 3 who in my opinion are the crucial witnesses who could give evidence regarding the possession claimed by the parties. Learned Munsiff appears to have been carried away by the version of the appellant that he did not get possession of the property during the lifetime of Chathu (who died in the year 1965) which means that possession of the appellant was only after 1965. But I must notice the claim of appellant that Chathu had taken the oral lease on his behalf. Appellant stated that he was born in the year, 1942. So he became a major in the year 1960. Chathu died in the year, 1965. Assuming that appellant started dealing with the property on his own only after 1965, possession of Chathu prior to that was for and on behalf of the appellant. 40. The documents produced by the appellant were also ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 25 :- not properly considered. Though learned Munsiff said that Ext.A5, rent receipt (admitted by P.W.2, the joint Receiver) is issued to one 'Chandran', I find on verification that it is issued to Chathu (paternal uncle of the appellant) as guardian of the appellant. True, the re-survey number is not mentioned. If that document were fabricated, the re-survey number also could have been mentioned there. P.W.2 has admitted that the said receipt was issued from the Kovilakam for acceptance of rent for the suit property. So far as Ext.A6, receipt of payment of purchase price is concerned, true that the re-survey number originally written as 106/2 is corrected as 126/2 by giving correction to the figure '0'. P.W.2 admitted Ext.A6. It is only that he could not say whether the figure '0' was corrected as '2' before or after it was signed by the joint Receiver. But nobody has a case that appellant has in his possession any property in R.S. No.106/2 under the Kovilakam. P.W.2 did not say that Ext.A6 concerns R.S. No.106/2. P.W.2 did not say that Ext.A6 is fabricated or that the correction in it is unauthorized. According to P.W.2, appellant possessed the 60 cents in R.S. No.126/2. There is nothing to show that Ext.A6 is the result of forgery and it is also difficult to think so, in the light ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 26 :- of the evidence given by P.Ws.2 and 3 and Exts.A7 and A16. There was no good reason to reject Exts.A5 and A6 in the light of evidence given by P.W.2. 41. Exhibit A7 is the carbon copy of report filed by the Revenue Inspector in O.A. No.76 of 1982. He conducted the enquiry on 07.06.1982 (much before filing of the suit) and reported that appellant is in possession of the suit property. Courts below unceremoniously rejected Exts.A7 and A17. 42. For what reason was the evidence of P.Ws.2 and 3 rejected? There is no evidence of any collusion between them and the appellant. There is no case that they were enmical to the first respondent. They are connected with the Zamorin Kovilakam and have given evidence of possession of the suit property with the appellant. 43. No doubt, first respondent produced documents and adduced oral evidence. The documents pertained to the property in R.S. No.127/2. None of the witnesses examined by the first respondent is connected to the Zamorin Kovilakam so that they could give authoritative version about lease of the suit property. First respondent states about a partition in his family ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 27 :- following Ex.B1 (which concerns R.S. No.127/2) but that document is not produced. Learned counsel for appellant states that appellant produced a copy of that partition deed in the trial court. Even that document, first respondent did not want to get exhibited in evidence obviously because it did not help his case. 44. It is not disputed that in Ext.R1, the copy of prior document of Ext.B1 produced by the appellant in the Tribunal to oppose the application made by the first respondent, the resurvey number of property claimed by the first respondent is 125/2 which is the re-survey number originally mentioned in Ext.B12, purchase certificate in favour of the first respondent. Obviously, the application made by the first respondent is for purchase of landlord's right mentioned in re-survey number as 125/2. Courts below unfortunately did not consider these aspects. Courts below also did not take into account the fact that not only that no document produced by the first respondent revealed that he has any possession of the land in R.S. No.126/2 but also that the boundaries mentioned in Exts.B1 and B12 did not tally with the boundaries of the suit property which tallied with the boundaries in Ext.A8, purchase certificate. Even the nature of ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 28 :- properties in Exts.A8 and B12 did not tally. In Ext.A8, it is 'parambu' while in Ext.B12 it is 'thottam'. These crucial aspects were ignored by the courts below. 45. Appellant produced five (5) revenue receipts in the first appellate court to be received as additional evidence along with I.A. No.2390 of 2000. Those revenue receipts related to the period from 1988-89 to 1999-2000 (true after institution of the suit). Those receipts are issued in the name of the appellant and related to the 60 cents in R.S. No.126/2. The first appellate court did an easy job on that application (as also I.A. No.3342 of 2000 to call for document with which I am not very much impressed) by simply closing it for the reason that the appeal is dismissed (both on the same day). As that application and documents are not before me, I am not passing any order. But fact remains that appellant did produce, though for the period after institution of the suit revenue receipts concerning the 60 cents in R.S. No.126/2 while, as the trial court observed the documents produced by the first respondent did not pertain to the property comprised in R.S. No.126/2. 46. Apart from proof of possession available from Exts.A8 ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 29 :- and A9, appellant has also adduced sufficient oral and documentary evidence to prove his possession of the suit property. The courts below did not give proper consideration of that evidence and either did not refer to the relevant evidence and aspects or rejected it for flimsy reasons. Non-consideration of relevant aspects by itself is a substantial question of law requiring interference. 47. The decision relied by the learned Senior Advocate was a suit for declaration of title and recovery of possession and other reliefs. That suit was resisted with a purchase certificate and the question arose whether that purchase certificate was obtained fraudulently. The question this Court considered in that case was whether it was within the power of civil court to decide whether the purchase certificate was obtained fraudulently and while deciding so, the civil court could decide who is the real cultivating tenant of the property in question. This Court held that it is within the jurisdiction of the civil court under Sec.9 of the Code to go into the question whether the purchase certificate was obtained fraudulently and collusively and in deciding that issue, to decide the ancillary question as to who exactly was the ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 30 :- real cultivating tenant of the property. 48. No doubt, the civil court could decide whether purchase certificate was obtained fraudulently or without complying with the statutory requirements. It could also, while deciding so, say who is the real cultivating tenant. But for the mere alleging so, or on flimsy grounds the civil court cannot upset the decision of the Tribunal which is invested with the power to decide whether the applicant before it is a cultivating tenant or not. Merely for the reason of some correction of the re-survey number in Ext.A6 (which itself is not proved to be the result of any forgery) or that Ext.A5 did not mention the re-survey number (particularly when P.W2 has given evidence supporting those documents), the civil court could not say that Exts.A8 and A9 are fraudulently obtained. Fraud, when pleaded by the first respondent had to be proved like any criminal charge. A finding as to fraud cannot be based on mere suspicion and conjecture. A high degree of proof is required (See _**A.L.N. Narayanan Chettiar v. Official Assignee, High Court, Rangoon**_ - AIR 1941 PC 93) and _**Svenska Handelesbanken v. M/s. Indian Charge Chrome**_ - AIR 1994 SC 626 - paragraph 44). Such ## **S.A. No.294 of 2001 & C.R.P.Nos.1570 & 1685 of 2003** -: 31 :- evidence is absent here. Nor is there any evidence (as against the specific statement in Ext.A9, order) that Ext.P8, purchase certificate is issued without complying with the relevant provisions of the Act and the Rules. The courts below therefore had to accept and act upon Exts.A8 and A9. 49. In the light of the evidence parties have let in, finding of the learned Munsiff confirmed by the learned Sub Judge that appellant has no possession of the suit property is erroneous and cannot be sustained as it does not have the backing of the evidence and the law. On the other hand, that finding is against the evidence and the effect law has provided for Exts.A8 and A9. Having regard to the facts, evidence, circumstance and the legal effect of Exts.A8 and A9 I have discussed above, the irresistible conclusion that I reach is that appellant is in possession of the suit property. The unsustainable claim made by the first respondent over the suit property justified apprehension of the appellant and established the cause of action pleaded by him. Appellant is entitled to the reliefs prayed for. 50. Substantial question of law framed is answered as above. ## **S.A. No.294 of 2001 &** ## **C.R.P.Nos.1570 & 1685 of 2003** -: 32 :- Resultantly, (i) S.A. No.294 of 2001 is allowed. Judgment and decree of learned Sub Judge, Kozhikode in A.S. No.12 of 1998 and of learned Principal Munsiff, Kozhikode-II, in O.S. No.129 of 1985 are set aside. (ii) O.S. No.129 of 1985 of the court of learned Principal Munsiff, Kozhikode-II is decreed as under: (a) First respondent/defendant and those claiming under him are restrained by a decree for prohibitory injunction from trespassing into the suit property or destroying/altering its boundaries. (iii) C.R.P. Nos.1570 and 1685 of 2003 are dismissed. - (iv) Parties shall suffer their respective costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv