Keethadath Puthiayapurayil Aliyumma and others v Therath Puthiayapurrayil Janju and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929** ## **SA.No. 429 of 1994(A)** - **-------------------------------** **AS.180/1989 of SUB COURT, PAYYANNUR OS.243/1984 of MUNSIFF COURT, THALIPARAMBA** **....................** ## **APPELLANTS/APPELLANTS/ PLAINTIFFS** - **------------------** **1. KEETHADATH PUTHIYAPURAYIL ALIYUMMA, D/O. SOOPI HAJI, KEEZHALLUR AMSOM AND KODU DESOM.** **2. KEETHADATH PUTHIYAPURAYIL MUHAMMAD, S/O. ALIYUMMA, KEEZHALLUR AMSOM AND KODUR DESOM. (DIED)** **3. KEETHADATH PUTHIYAPURAYIL MOOSAN, S/O. ALIYUMMA, DO. DO.** **4. KEETHADATH PUTHIYAPURAYIL ABDUL SALAM, S/O. ALIYUMMA, DO. DO.** **5. KEETHADATH PUTHIYAPURAYIL SEKIYA, D/O. ALIYUMMA DO. DO.** ## **ADDL. APPELLANTS 6 TO 10 ARE IMPLEADED.** **6. P.K.SAIDA, W/O. DECEASED MUHAMMED, KEEZHALLUR AMSOM , KODAR DESOM, MATTANNUR.** **7. P.K.SAJILA, D/O. DECEASED MOHAMMED, KEEZHALLUR AMSOM, KODAR DESOM, MATTANNUR.** **8. P.K.SALEELA, D/O. DECEASED MOHAMMED, KEEZHALLUR AMSOM, KODAR DESOM, MATTANNUR.** **9. P.K.SAMEELA, D/O. DECEASED MOHAMMED, KEEZHALLUR AMSOM KODAR DESOM, MATTANNUR.** **10. P.K.MOHAMMED SAFEEL, S/O. DECEASED MOHAMMED KEEZHALLUR AMSOM, KODAR DESOM, MATTANNUR.** **THE FIRST APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND APPELLANT SUPPLEMENTAL APPELLANTS 6 TO 10 ARE ALSO IMPLEADED AS LRS OF DECEASED 2ND APPELLANT AS PER ORDER DT. 25.9.04 IN IA. 1953/04 AND CM.APPL. NO.664/04.** ## **BY ADV. SRI.M.A.MANHU SRI. M.A.FAYAZ SRI.V.V.NARAYANAN - A1 AND A3 TO A10** ## **S.A. NO.429/1994** ## **DEFENDANTS/ RESPONDENTS/DEFENDANTS** ## **-----------------------** **1. THERATH PUTHIYAPURAYIL JANU, D/O. KALLIANI, PADIYUR AMSOM, VAYATHUR DESOM, TALIPARAMBA TALUK, VII/790, PADIYOOR KALLIYAD PANCHAYAT.** - ***2. SARAMMA CHANDY, JAYA VIHAR, C/O. P.C. CHANDY JAYA VIHAR, MUTHADA, P.O.TRIVANDRUM - 25. (DIED)** - ***3 THAZHATH PUTHIYAPURAYIL YESODA, D/O. KALLIANI, PADIYUR AMSOM AND VAYATHUR DESOM, TALIPARAMBA TALUK. (DIED)** **ADDL. R4 TO R8 ARE IMPLEADED** **4. K.K.SAVITHRY ALIAS OMANA, D/O. KUNHAMBU, KOOVAKKATTUMMEL HOUSE, ERIYAMANGAAM P.O., BALUSSERY P.O., KOZHIKODE DIST.** **5. K.K. VANAJA, D/O. KUNHAMBU, KUNIYATH HOUSE, ULIKKAL P.O., PIN A670 705.** **6. K.K.VALSA D/O. KUNHAMBU, KUNIYATH, ULIKKAL P.O., PIN 670 705.** **7. K.K.LEKSHMANAN S/O. KUNHAMBU, KUNNIYATH ULIKKAL P.O., P.O. 670 705.** **8. K.K.BALU, S/O. KUNHAMBU, KUNNIYATH ULIKKAL P.O., PIN 670 705.** **ADDITIONAL RESPONDENTS 4 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD RESPONDENT AS PER ORDER DT. 23.2.06 IN IA. 1928/04** **9. PANAVELIL CHANDY, S/O. CHANDY,DEVAMATHA ESTATE, NUCHIYAD AMSOM DESOM, MUNDAVOOR P.O., NACHIYAD. (DIED).** ## **SA. NO.429/1994** **10. P.C.LATHA, D/O. SARAMMA CHANDY, DEVAMATHA ESTATE, NUCHIYAD AMSOM, DESOM, P.O. NACHIYAD.** **11. P.C.PREMA, D/O. SRAMMA CHANDY, DEVAMATHA ESTATE, NUCHIYAD AMSOM, DESOM, P.O. NACHIYAD.** **12. P.C.ALEX, CHANDY S/O. SARAMMA CHANDY, DEVAMATHA ESTATE, NUCHIYAD AMSOM DESOM P.O. NACHIYAD.** **ADDL. RESPONDENTS 9 TO 12 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT AS PER ORDER DT. 26.6.06 IN IA. 1930.04.** **ADDITIONAL RESPONDENTS 10 12 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 9TH RESPONDENT AS PER ORDER DT. 26.6.06 IN IA. 995/06.** **BY ADV. SRI.M.P. ASHOK KUMAR - R1 BY ADV. SRI.K.V.SOHAN - R1, R4 TO R8 BY ADV. SMT.K.AMBILY - ADDL.R10 TO R12** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## M.SASIDHARAN NAMBIAR,J. S.A.NO.429 of 1994 Dated, this the 21st day of January,2008 ## JUDGMENT Plaintiffs in O.S.243/1984 on the file of Munsiff Court, Taliparamba are the appellants. Respondents are the defendants. Appellants instituted the suit seeking a decree for permanent prohibitory injunction and in the alternative recovery of possession of plaint B schedule property. Plaint A schedule property is 3.34 acres in R.S.No.2/1A1 of Padiyoor Village. It admittedly originally belonged in jenm to Vayathoor Devaswom of Kalliat tarwad. Case of appellants was that five acres in that survey number was obtained by Puthiya Purayil Keeranteakath Moideen Kutty under Ext.A1 registered marupat dated 15.8.1948 and since then he has been in possession of the property. He also obtained properties under Ext.A3 registered marupat on the same day from Kalliat tarwad and has been in possession of the said property which lies S.A.429/1994 2 to the south of the property covered under Ext.A1. Appellants contended that subsequently portions of the property covered under Ext.A1 was alienated and a portion was surrendered for formation of the road and plaint A schedule property has been in the possession of Moideen Kutty at the time of his death and first appellant widow purchased the jenm right from the Land Tribunal and obtained Ext.A2 purchase certificate. It was contended that plaint B schedule property having an extent of 51 cents forms part of plaint A schedule property being the property covered under Ext.A1 and Moideenkutty constructed two buildings and one building was granted on oral lease in favour of Kalliani, the mother of the respondents and apart from the tenancy right over the building, Kalliani and respondents have no other right in the property and when appellants went to the property to take usufructs respondents obstructed the same claiming right alleging that under an oral lease plaint B schedule property was obtained by Kalliani. The S.A.429/1994 3 suit was filed seeking a decree for permanent prohibitory injunction in respect of plaint B schedule property and in the alternative for recovery of possession of plaint B schedule property. 2. Respondents resisted the suit contending that plaint B schedule does not form part of the property obtained by Moideen Kutty and instead it was obtained by Kalliani under an oral lease from the Devaswom in 1951 and she has been in the possession of the property and constructed the building and has been paying the tax for the building as well as the property and obtained Ext.B2 purchase certificate from the Land Tribunal and therefore appellants have no right or title to the plaint B schedule property and even if appellants have title, it is lost by adverse possession and limitation. 2. After the filing of the written statement appellants filed an appeal before the Appellate Authority (Land Reforms),Cannanore and under Ext.A9 S.A.429/1994 4 order the Land Tribunal set aside the order in favour of respondents and remanded the O.A. back to the Tribunal. Learned Munsiff on the evidence of PWs.1 to 3, DWs. 1 and 2 and Exts.A1 to A9, B1 to B9 and X1 to X3 and C1 and C2 dismissed the suit holding that the appellants failed to establish their title or possession of the property. Appellants challenged the judgment before Sub Court, Payyannur in A.S.180/1989. Learned Sub Judge on reappreciation of evidence found that the Commissioner in Ext.C1 plan and C2 report identified the plots A B and C and plot 1 to 19 therein as the property covered under Ext.A1 and plot B as part of the said property. On that basis, learned Sub Judge found that appellants have title to the plaint B schedule property as it is part of the plaint A schedule property which was obtained by Moideen Kutty under Ext.A1. Learned Sub Judge also found that when under Ext.A9 order, Ext.B2 purchase certificate was set aside by the appellate authority and therefore based on Ext.B2 S.A.429/1994 5 respondents cannot claim title to the property. Learned Sub Judge further found that when under Ext.A1 plaint B schedule being part of the property covered under Ext.A1 was granted on lease , it could not have been obtained by kalliani under oral lease in 1951 and therefore the case of oral tenancy will not stand. Learned Sub Judge therefore found that appellants have title to plaint B schedule property. But based on Ext.B5 to B8 and B9 series as well as extracts of the building tax of the Panchayat it was found that the building in plaint B schedule property is registered in the name of respondents as owners and therefore the evidence establish that right from 1951 plaint B schedule property has been in the possession of respondents and therefore that possession is adverse to the appellants and held that appellants are not entitled to recovery possession of the same. The appeal was dismissed. It is challenged in the second appeal. 3. Second appeal was admitted formulating the S.A.429/1994 6 following substantial questions of law. 1. Whether courts below were right in holding that title of the plaintiffs was lost by adverse possession when there is no evidence to hold that possession of the respondents was adverse to the plaintiffs. 2. When there is no dispute as to the title of plaint B schedule property and it is proved that defendants were put in possession of the property as tenant and there is no evidence to prove the defendants have been in possession of the property adverse to the plaintiffs whether finding of the first appellate court on adverse possession is sustainable. 4. Learned counsel appearing for appellants and respondents were heard. 5. Learned counsel appearing for appellants argued that first appellate court found that plaint B schedule property is part of plaint A schedule property and it is part of the property obtained under Ext.A1 and that finding was not challenged by S.A.429/1994 7 respondents by filing a Cross Objection and therefore the finding of fact that plaint B schedule forms part of Plaint A schedule property and plaint A schedule property which obtained under Ext.A1 has become final. It was argued that as the appellants have title to the property unless that title is lost by adverse possession, they are entitled to the decree for recovery of possession sought for and the burden is on the respondents to establish adverse possession and there is no evidence to substantiate that claim and therefore the finding of first appellate court is not sustainable. Relying on the decision of the Apex Court in **Deva v. Sajjan Kumar (2003(7) SCC 481)** and the learned single Judge of this court in **Kodiyan v. Karambi (2007(2) KLT 361)** learned counsel argued that unless the respondents establish that they have been in possession of the property adverse to the appellants who are the owners and that too with the necessary documents to possess it the plea S.A.429/1994 8 of adverse possession sustained by the first appellate court will not stand. It was argued that the case of the respondents was that they are tenants under the Devaswom and not that they have been in possession of the property with the knowledge that the property belongs to the appellants and that too in derogation of the title of the appellants and therefore the finding of the first appellate court is not sustainable and a decree for recovery of possession is to be granted. Learned counsel appearing for respondents argued that unless the appellants have established the title to plaint B schedule property it is not necessary to consider the claim for adverse possession at all. It was argued that first appellate court did not correctly decide the question of title and even without filing a Cross Objection as provided under Rule 22 of Order XL1 of Code of Civil Procedure respondents are entitled to challenge the finding as against them in the judgment of the first appellate court while S.A.429/1994 9 supporting the findings in their favour. It was argued that first appellate court based on the finding on title and the correctness of Ext.C1 plan and the identification they omitted to take note of the fact that the Commissioner did not identify the property with reference to Ext.A1 registered marupat or Ext.A2 purchase certificate. It was pointed out that the appellants paid property tax only from 1973 fixed by Ext.A5 series and Ext.A5(d) and (e) do not relate to the plaint schedule property but to the property covered under Ext.A3 and the payment of tax under the other receipts are for 4 acres and therefore based on tax receipts the title cannot be sustained. It was also pointed out that when under Ext.A1, 5 acres were obtained by Moideen Kutty and it was admitted that 1 acre 54 cents covered by that property was alienated and about 12 cents was lost for formation/widening of the road and appellants claim that the property left by Moideen Kutty, at the time of his death, covered under Ext.A1 is only 3.34 acres, the S.A.429/1994 10 purchase certificate was obtained in respect of 5 acres and therefore based on Ext.A2 the appellants cannot succeed in establishing the title. It was also argued that as is clear from Ext.C2 report and C1 plan, the Commissioner did not identify the property either with reference to Ext.A1 or Ext.A2 and instead identified the property as shown by the appellants and therefore based on Ext.A2 the title of the appellants cannot be sustained. It was also argued that unless it is proved that plaint B schedule property is part of the property covered under Ext.A1, it cannot be held that Devaswom could not grant a lease in respect of the property claimed by respondents and obtained by kalliani and though under Ext.A9 the order based on Ext.B2 purchase certificate was granted was set aside the O.A. was remanded to the Land Tribunal and so long as the Land Tribunal did not find the tenancy claimed by respondents against them based on Ext.A9 it cannot be said that respondents have no right to plaint B schedule property. Learned counsel argued S.A.429/1994 11 that when Ext.B9 series establish that respondents and their predecessors have been paying tax for 50 cents of that property in that survey number and Ext.B5 series establish that the building constructed therein stands registered before the Panchayat showing the name of respondents as owners the finding of first appellate court that appellants are not entitled to the recovery of possession is perfectly correct and the appeal is to be dismissed. 6. When appellants are claiming recovery of possession of plaint B schedule property on the strength of title, they can succeed only on establishing the title. The title was set up under Ext.A1. The case is that out of 5 acres obtained under Ext.A1, the tenant Moideen Kutty alienated portions and plaint A schedule property is the remaining property which was left behind with his legal heirs at the time of his death. If that be so, when the first appellant as legal heir of Moideen Kutty applied for purchase of jenm right, S.A.429/1994 12 she could have claimed only plaint A schedule property instead under Ext.A2 purchase certificate was granted for 5 acres of land. Therefore it is clear that no reliance could be placed on Ext.A2 to find the title. 7. First appellate court found the question of title in favour of the appellants holding that plaint A schedule is plot A B C and plots 1 to 19 as marked by the Commissioner in Ext.C1 plan and plaint B schedule property is plot A and B therein. It is on that basis, the first appellate court found that appellants have title as under Ext.A1 the lease was granted in favour of Moideen Kutty Kalliani could not have obtained a portion of that property under an oral lease in 1951. This finding could be upheld only if it is found that plot A B forms part of the property obtained under Ext.A1. Otherwise even if under Ext.A1 5 acres of land obtained not Moideen Kutty so long as Devaswom has got other properties in that survey number, there is no impediment for the Devaswom to grant a lease S.A.429/1994 13 or Kalliani obtained an oral lease. Therefore the crucial question is whether plaint B schedule property forms part of plaint A schedule property and whether plaint A schedule property is the property identified by the Commissioner in Ext.C1 plan and whether it is the property covered under Ext.A1. Though learned counsel appearing for appellants vehemently argued that as the respondents did not prefer a Cross Objection, they are not entitled to challenge the finding on title against them by first appellate court, Rule 22 of Order XL1 enables respondents not only to support the findings in the judgment of the first appellate court against them but also to challenge the findings against them. When the first appellate court confirmed the dismissal of the appeal the respondents who succeeded in the appeal need not file an appeal as provided under Rule 22 of Order XL1 of CPC definitely entitled not only to support the finding in their favour but also to challenge the finding as against them. Though respondents S.A.429/1994 14 did not prefer a Cross Objection they are entitled to contend before this court that the finding of the first appellate court on the question of title is in accordance with the evidence and therefore not legally tenable. 8. The question therefore is whether the finding of the first appellate court that plaint A schedule property is as marked by the Commissioner in Ext.C1 plan is correct. A reading of Ext.C2 report conclusively prove that Commissioner did not identify the property covered under Ext.A1 and did not find that plot A B C and plots 1 to 19 in Ext.C1 plan are the property obtained under Ext.A1. Instead the report shows that originally the Commissioner inspected the property and measured the property in part. The measurement of the property in the possession of the respondents was not completed. Commissioner entrusted that work with the Village Assistant. The respondents immediately filed a memo before the Commissioner representing that properties are to be measured in S.A.429/1994 15 their presence. Therefore Commissioner inspected for the second time and in the presence of the appellants and respondents and the Village Assistant who came there along with the Field measurement group measured the property. Ext.C2 establish that the Commissioner did not even make an attempt to identify the property as shown in Ext.A1 or Ext.A2 purchase certificate. Instead when the appellants shown the property as covered under Ext.A1 the Commissioner directed the Village Assistant to measure it and prepare the plan. Therefore plot A B C and plots 1 to 19 were identified as the plaint A schedule property not based on the identification but based on Ext.A1 registered marupat or Ext.A2 purchase certificate. Instead it is identified solely on the basis of what was shown by the appellants as the plaint A schedule property. Therefore when the property covered under Ext.A1 was not identified the first appellate court was not justified in holding that plot A and B is the plaint B schedule property or S.A.429/1994 16 that plot A B C and plots 1 to 19 as marked in Ext.C1 plan is the property obtained by appellants under Ext.A1. If that be so, the finding of the first appellate court that appellants have title to the property based on that finding will not stand. 9. When Ext.A1 shows that except the eastern boundary the remaining properties on all the three sides are the properties belonging to Devaswom. If that be so, the southern boundary of the property covered under Ext.A1 should be the remaining property in the possession of Devaswom. Ext.A3 shows that the property obtained by Moideen Kutty under the registered marupat is not the Devaswom property but the tarwad property comprising resurvey No.28/1A2. Ext.C1 plan shows that the property which lies to the south of the plot C is the property in survey No.28/1A2. If the identification made by the Commissioner is correct, the southern boundary must be the property of the Devaswom and cannot be the tarwad property obtained under Ext.A3 registered marupat. So also the S.A.429/1994 17 northern boundary was not shown as the property obtained under Ext.A1 or the property belonging to the Devaswom. Therefore on the basis of Ext.A1, it is not possible to affirm the finding of the first appellate court that the property identified by the Commissioner is the property is correct or that plot A and B is part of the property covered under Ext.A1. When the northern boundary of the property covered under Ext.A1 is remaining property of Devaswom Ext.C1 plan shows that it is a road. Though appellants contended that the road was formed subsequently there is no evidence when that road was formed. In appreciating the entire evidence in the proper perspective the finding of the first appellate court that plaint B schedule forms part of plaint A schedule property is the property obtained by Moideen Kutty under Ext.A1 cannot be accepted. If that be so, the finding of the first appellate court that appellants have title to the plaint B schedule property will not stand. S.A.429/1994 18 10. Though appellants claimed that the building in the plaint B schedule property was constructed by Moideen Kutty Ext.B5 series along with Ext.B9 series of tax receipts establish that it was the respondents who have been paying the tax for the plaint B schedule property right from 1951. So also building was registered in the name of respondents as owners. In such circumstance, appellants have title to the plaint B schedule property can only be set aside. If the appellants have no title, then relying on the decision of the Apex Court or this Court, it is not necessary to decide the claim for adverse possession and therefore I find no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE Tpl/-