Karthayani @ Ammini @ Nellu Amma d/o Kavungal Uchanathil Parukutty Amma v. Janaky @ Gouri Velayudhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935** ## **RSA.No. 588 of 2013 (C)** **-----------------------** **AGAINST THE JUDGMENT IN AS 321/2007 of II ADDL.SUB COURT, THRISSUR DATED 24-03-2012** **AGAINST THE JUDGMENT IN OS 205/1999 of MUNSIFF COURT, VADAKKANCHERRY DATED 31-01-2006** **APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 9:** - **----------------------------------------------------------------------------------** **1. JANAKY @ GOURI VELAYUDHAN AGED 78 YEARS W/O.LATE VELAYUDHAN, NAMBALATHUVEETTIL HOUSE THICHUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** **2. ANNAPOORNESWARI AGED 58 YEARS** - **D/O.JANAKI AND W/O.KARTHIKEYAN NAMBALATHUVEETTIL HOUSE, THICHUR VILLAGE THALAPPILLY TALUK, THRISSUR DISTRICT.** ## **3. LILLY AGED 56 YEARS** - **W/O.PRAKASAN AND D/O.JANAKI, NAMBALATHUVEETTIL HOUSE THICHUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** **4. REETHA AGED 54 YEARS** - **W/O.RAJAN AND D/O.JANAKI, NAMBALATHUVEETTIL HOUSE THICHUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** ## **5. BEENA AGED 52 YEARS** - **D/O.JANAKI AND W/O.KUNNATHUVEETTIL SUBRAMANYAN THICHUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** ## **6. RATHI AGED 50 YEARS** - **D/O.JANAKI AND W/O.KODUKAL VEETTIL HARIDAS NATTIKA VILLAGE AND DESOM, CHAVAKKAD TALUK THRISSUR DISTRICT.** ## **7. REKHA AGED 48 YEARS** - **D/O.JANAKI AND W/O.MELEVALAPPIL SIVASANKARAN VARAVOOR VILLAGE AND DESOM, THALAPPILLY TALUK THRISSUR DISTRICT.** ## **8. SIVASANKARAN AGED 58 YEARS** - **S/O.MELEVALAPPIL VELU, KUMARAPANAL DESOM VARAVOOR VILLAGE, THALAPPILLY TALUK THRISSUR DISTRICT.** **BY ADVS.SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR** **...2** ## **RSA.No. 588 of 2013 (C)** **-2-** ## **RESPONDENT(S)/RESPONDENT/PALAINTIFF:** **------------------------------------------------------------------------** **KARTHYAYANI @ AMMINI @ NELLU AMMA D/O.KAVUNGAL UCHANATHIL PARUKUTTY AMMA THICHUR VILLAGE AND DESOM, THALAPPILLY TALUK THRISSUR DISTRICT, PIN 680609.** **BY ADVS. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 588 of 2013 -----------------------------------------Dated this the 8[th] day of October, 2013 ## **J U D G M E N T** Defendants 2 to 9 are the appellants. The suit was filed for recovery of possession on the strength of title. The trial court decreed the suit. It was confirmed by the appellate court. 2. The plaintiff contended that she had obtained 97½ cents of property as per Ext.A1 assignment deed of 1958. The property was comprised in Survey nos. 768/1, 768/2 and 768/3 of Thrissur Village. The landlord's right was purchased by her through the Land Tribunal as per Ext.A2 -purchase certificate. There is a house situated in 50 cents of property comprised in Survey No.768/2, which is part of 97½ cents mentioned above. Item no.1 shown in the plaint, which is in Survey no. 768/1, is a palliyal land and is lower in level than the residential compound of the plaintiff, which ## **R.S.A. No. 588/2013** **-2-** is in Survey no. 768/2. There is a fence between the residential compound situated in Survey no.768/2 and item no.1. It was put up to prevent cattle trespass into the residential compound. The kudiyiruppu compound of the defendants is lying to the west of plaint item no.1. The plaintiff was staying away from the plaint schedule property. When she came back she could see a pathway of a width of 1½ koles having been put up along the entire length of the boundary at the eastern extremity of plaint item no.1. A new gate was also seen put up in the eastern boundary with steps to get into the new pathway. The defendant has absolutely no right to do so. It was also found that a motor pump set was seen installed by the defendant in item no.1. Since the defendant failed to remove the same, the suit was filed. 3. During the pendency of the suit, the 1[st] defendant died and his legal representatives were impleaded as ## **R.S.A. No. 588/2013** **-3-** defendants 2 to 9. The deceased 1[st] defendant denied the plea that the plaintiff obtained title to the property as per Exts.A1 and A2. The plaintiff was never in possession of the property as there is a well defined boundary and 'mattom' aged about 40 years between the residential compound of the plaintiff and plaint item no.1 and there is no direct access from the residential compound of the plaintiff to plaint item no.1. There is an old pathway on the eastern side which is not part of the plaint schedule property. There is a clear demarcating boundary between item no.1 of plaint schedule property and the pathway mentioned above. 4. The allegation that the defendants constructed a pathway, gate etc when the plaintiff was away, was denied. It was contended that a property measuring 45 cents comprised in Survey no.768/1 along with two other items was purchased by the deceased 1[st] defendant as per sale deed no.662/1989 and thus the 1[st] defendant has got title **R.S.A. No. 588/2013** **-4-** and possession over the said property. That property was purchased by him from Ammu alias Kamalakshi Amma and her children who had purchased the said property as per Ext.B5 sale deed of 1961 and he also obtained the purchase certificate from the Land Tribunal. Thus, the 1[st] defendant contended that he was having title and possession over the said property. It was also contended that he had effected so may improvements and had raised agricultural crops in the said property. 5. The defendants set up title on the strength of Ext. B4 lease deed stated to have been executed by Ammukutty @ Parvathy Amma on 11-3-1950. But the grantor Ammukutty @ Parvathi Amma had no right over the property so as to grant lease under Ext. B4 since as per Ext.A3 she had already transferred her right over the properties comprised in Sy. Nos.768/1,768/2 and 768/3 in 1124 M.E. corresponding to 1949 . Therefore, Ext. B4 ## **R.S.A. No. 588/2013** **-5-** cannot have any legal effect as far as the property comprised in Survey Nos.768/1 and 768/2 is concerned, based on which alone the defendants contended that they had obtained lease of the property. 6. It was pointed out that the entire extent of 50 cents comprised in Re-survey No.768/2 had been transferred as per Ext. A3. It is also pointed out that no fresh lease was created as per Ext. B4 since the property had already been in the possession of the original lessee and her assignee as per Ext.A3. In other words, on the strength of Ext. B4, no lease could have been created. Therefore, the title claimed by the defendants on the strength of B4 must fall to the ground. If Ammukutty Amma had no leasehold right or possession over the property comprised in Sy. No. 768/1, she was not legally competent to execute Ext.A6 sale deed in favour of her daughter's; namely, Kunhilakshmi Amma and Bhageerathy ## **R.S.A. No. 588/2013** **-6-** Amma in respect of that property namely; the property comprised in Sy. No. 768/1 measuring 45 cents. 7. In Ext. B3 (the release deed No. 863/1951), the executants who are the children of Ammukutty Amma, mention is seen made about Ext.B4 the verumpattom chit. It has already been found that no lease could be created as per Ext. B4 since Ammukutty Amma already assigned her leasehold right as per Ext.A3 in 1949. 8. If Ammukutty Amma could create no leasehold right, it was also not possible for her to execute the sale deed in respect of that property in favour of her daughters. The lower appellate court found that since property comprised in Sy. No. 768/1 could not be the subject matter of Ext. B4 lease since Ammukutty Amma had already assigned her leasehold right as per Ext.A3, it cannot also be the subject matter of Ext. B3, Ext. B5 and Ext. B1. Therefore, the whole case set up by the defendants, on ## **R.S.A. No. 588/2013** **-7-** the strength of Ext. B4 and the subsequent documents is found to be bereft of any merit. 9. The contention that an implied surrender could be presumed was found against by the lower appellate court. The decision in Zulekha Beevi v. Mathew reported in **2001 (1) KLT 360** has no application to the facts of this case. It was not a case where there was an implied surrender by execution of a fresh lease deed but the lessee had already assigned her property to another person by executing a registered assignment of lease in 1949 as evidenced by Ext.A3. It is also not a case where there is an implied surrender of leasehold right in favour of the landlord followed by a fresh lease deed. That apart, there was nothing in the subsequent documents, Ext. A13 or any other document to support the plea of implied surrender. The case advanced by the defendants was that when Ext. B4 was executed Ammukutty Amma was in possession of ## **R.S.A. No. 588/2013** **-8-** the property. That would scuttle the plea of implied surrender as well. Since the assignor had already assigned her leasehold right in favour of her daughter Ammu @ Kamalakshi Amma as per Ext.A3 nothing remained with the original lessee Ammukutty @ Parvathy Amma so as to have an implied surrender and to create a new lease deed. The plea so raised by the defendants were found to be mutually inconsistent and was thus turned down by the lower appellate Court. 10. The contention that it was a tavazhi property was also not accepted by the courts below. It was found that for the purpose of paying the consideration for Ext.A3 the amount was paid by the assignee in favour of the assignor and that consideration was obtained by the assignee as per Ext. A2 a release deed which was executed by her on the same day. It was contended that it was that amount which was spent by the assignee for obtaining the assignment of ## **R.S.A. No. 588/2013** **-9-** leasehold right as per Ext.A3. There is nothing in Ext.A3 to indicate that the acquisition was for the tavazhi. There was no joint family /tarvad nucleus so as to contend that the acquisition was for the joint family. Not only that the daughter who is the assignee under Ext.A3 was only a junior member of that family who could not have possessed any joint family nucleus. If Ext.A3 was intended as an assignment in favour of the members of the tavazhi there was no difficulty for the other children of Ammukutty @ Parvathi Amma to join the said lease assignment deed in Ext. A3 especially because those children were parties to Ext.A12 the release deed executed on the same day. In other words, on the date of Ext. A3., all those children of Ammukutty Amma @ Parvathy Amma were present in the office of the document writer and so if actually it was an acquisition in favour of the tavazhi, there was no difficulty to execute the document in favour of Ammu @ Kamalakshi **-10-** ## **R.S.A. No. 588/2013** Amma and the other siblings of the assignor. 11. Simply because in some documents it was referred to as the family property, the property will not get itself impressed with the character of tavazhi property. That apart, there was no specific case that the plaint schedule properties are tavazhi properties. Another contention that was pressed into service by the appellants before the lower appellate court was that there is difference in the description of the properties in Ext.A1,A13 and in the plaint schedule. It was well explained by the lower appellate court. Originally the property was described as a 'nilam' (paddy filed). It is quite usual, natural and probable that the property was converted as a garden land. Conversion of a paddy land into a garden land is not something quite unusual or unnatural. As the property could be identified with reference to Survey No. and the boundaries shown in the title deed, the contention to the **-11-** ## **R.S.A. No. 588/2013** contrary advanced by the learned counsel for the appellant was rightly rejected by the courts below. 12. It was further contended that there are discrepancies in the boundaries of the property shown in the documents relied upon by the respondent/plaintiff. But such discrepancies were shown in the documents relied upon by the defendants also. Of course that may not be a reason to hold that the plaintiff can get a decree if the property is not identified. But the properties could be identified by referring to the four clear boundaries. The survey numbers of the properties were shown as against the boundaries of the properties shown in the plaint as well as in the title deed relied upon by the respondent. But the Commissioner could identify the property with reference to the four boundaries mentioned in the document and in the plaint. ## **R.S.A. No. 588/2013** **-12-** 13. It was also observed by the lower appellate court that both parties went to trial knowing fully well that the dispute is over the properties comprised in Sy.No. 768/1 and both parties were claiming the whole extent in that survey number. Since the extent of the property comprised in that survey subdivision is definite and certain, as both parties claim right over that property, there could be no dispute regarding the identity of the property as well. 14. Yet another aspect has been projected by the lower appellate court. It is pointed out by the learned counsel for the respondents that Commissioner has reported that the improvements situated in the suit property and the improvements in the property admittedly in the possession of the plaintiff are identical which did indicate that both properties were held by the very same owner or person whereas the improvements found in the suit property and the property admittedly in the **-13-** ## **R.S.A. No. 588/2013** possession of the defendants were not similar . 15. It is argued on behalf of the appellants that the plaintiffs were admittedly not in possession of the property as on the date of suit and so the observation so made by the courts below cannot be accepted. But those observations were relied upon by the courts below to hold that the age and similarity of the improvements would indicate that the properties were held by the same person which would support the case of the plaintiff that they were in possession of the property by virtue of Ext.A3 and A13. 16. Ext.A2 is the purchase certificate obtained by the plaintiff in S.M. 5711/1976 . Ext.X3 is the file relating to the same. It was also found that Ammu @ Kamalakshi Amma was issued a purchase certificate in SM Case 5704/1976. That was issued in respect of 1.08 acres in Sy. No.768. The lower appellate court found that the purchase certificate in SM 5711/76 and 5704/76 were issued ## **R.S.A. No. 588/2013** **-14-** pursuant to the orders passed in both cases on 2-3-1977. The purchase certificates in those two cases were also issued on the same day namely; 4-11-1977 and so one cannot claim precedence over the other. In such circumstances, the court has to find what is the basis for issuance of the certificate and which certificate is to be accepted. Since the case of lease set up by the defendants was found to be untenable for the reasons already stated, the purchase certificate, even if it was issued in favour of the defendants, also will not salvage the position since the plaintiffs were issued purchase certificate for the very same property. When the lease set up by the plaintiffs is found to be more probable, reasonable and acceptable, the purchase certificate issued to them in SM 5711/1976 should be preferred to. 17. The plea of adverse possession set up by the appellants was found against by the lower appellate Court. **-15-** ## **R.S.A. No. 588/2013** Since the appellants set up title in themselves by setting up an independent leasehold right, they cannot thereafter turn round and contend that their possession was adverse to that of the real owner. The alleged possession was not in denial of the true owner's title. Therefore, the findings entered by the courts below do not require any interference at the hands of this Court. No substantial question of law is involved. In the result this Regular Second Appeal is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani