Kochu Devassy v Joy alias Lonappan

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 RSA.No. 882 of 2008() --------------------AS.83/2007 of I ADDL.SUB COURT, THRISSUR OS.265/2001 of M.C.,WADAKKANCHERRY .................... ## APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------------------- KOCHU DEVASSY, S/O. MURINGATHERY VAREED, PUNNAPARAMBA DESOM, THEKKUMKARA VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): RESPONDENT/DEFENDANT -------------------------------------------------------------------------- JOY ALIAS LONAPPAN, S/O.THERMADOM DEVASSY, PUNNAPPARAMBA DESOM, THEKKUMKARA VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R SMT.PREETHY KARUNAKARAN FOR R THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V. RAMKUMAR, J.** ## **= = = = = = = = = = = = = R.S.A.No.882 of 2008** ## **= = = = = = = = = = = = = = Dated this the 3rd day of December, 2008** ## **JUDGMENT** The plaintiff in O.S.No.265/2001 on the file of the Munsiff's Court, Wadakkanchery is the appellant in this second appeal. The said suit was one for a perpetual injunction restraining the defendant from trespassing into the plaint schedule property shown as admeasuring 13 cents comprised in survey No.288/2 of Wadakkenchery village. 2. The case of the plaintiff was that the plaint schedule property which belonged to Thoma son of Neyyan Thoma and Rosa, the 2[nd] wife of Thoma was sold by the said Thoma after the death of his 2[nd] wife to the plaintiff's parents Vareeth and Mariyam as per Ext.A1 sale deed of the year 1123 ME corresponding to the year 1948, that on the death of the plaintiff's parents Vareed and Mariyam the property devolved upon the plaintiff and his three brothers, Thoma, Porinchu and Anthony and one sister Elsy, that as per Ext.A8 release deed of the year 1978 one of his brothers Thoma released his right over **R.S.A.No.882 of 2008** 2 the property in favour of the plaintiff, that the other two brothers Porinchu and Anthony released their rights in favour of the plaintiff as per Ext.A9 release deed of the year 1979 and Elsy the sister also released her rights over the property as per Ext.A10 release deed of the year 1997, that there are two houses in the property and the plaintiff is residing in the western house and the eastern house was permitted to be occupied by Rosa, the 2[nd] wife of Thoma of Ext.A1, after the death of Rosa her sister Kunjannam started claiming a right of 3 cents of land together with the eastern building on the allegation that their sister Rosa got it from the Jenmy in the year 1968 and that the defendant who claims to be an assignee from Kunhannam attempted to trespass into the plaint schedule property. 3. The defendant on the other hand contended that the plaintiff's parents did not get 13 cents of land under Ext.A1 sale deed, that the plaintiff also did not get 13 cents of land under Exts.A8 to A10 release deeds, that the defendant was in possession of the eastern house bearing No.443 corresponding to new number 508 of Thekkumkara panchayat that the said 3 cents of land together with the said building was obtained by **R.S.A.No.882 of 2008** 3 Rosa on lease from the Jenmy as per Ext.B2 verumpattam dated 15.3.1968, that Rosa had no children and her rights were inherited by her sister Kunhannam who sold three cents and the house to the defendant as per Ext.B1 sale deed dated 19.03.2001 and ever since the said deed the defendant was in possession of the said property and at a time when he was away the plaintiff had trespassed into the house and reduced the same into his possession and had filed the present suit for injunction. He also made a counter claim for recovery of possession of Ext.B1 property. 4. The trial court came to the conclusion that going by the measurements under Ext.A1 and the release deeds the plaintiff's parents and thereafter the plaintiff and his brothers and sister did not get 13 cents of land and that Ext.A1 did not take in the property covered by Ext.B1 & B2. Accordingly, the trial court dismissed the suit but decreed the counter claim after accepting the case of the defendant that the plaintiff had trespassed into the counter claim property as alleged by him. On appeal preferred by the plaintiff as A.S.No.83 of 2007 before the Sub Court, Thrissur the lower appellate court dismissed the appeal 4 ## **R.S.A.No.882 of 2008** confirming the dismissal of the suit as well as the decree for recovery of possession of the counter-claim property. Hence this second appeal by the plaintiff. 5. The following questions of law have been formulated in the memorandum of second appeal:- - (a) When Section 74 of the Kerala Land Reforms Act prohibits creating tenancy after 1.4.1964, will a claim of title based on this alleged tenancy transaction created in the year 1968 confer any title on the defendant regarding the counter claim petition schedule property? - (b) When the possession of the counter claim petition schedule property has admittedly with the plaintiff from 1999 onwards and continued the same thereafter, when Ext.A2,A3,A3(a) and A3(b) documents issued by statutory authorities clearly showed possession of the entire 13 cents of property with the plaintiff and when Ext.BA8.A9 and A10 have conferred full title of the 13 cents of properties on the plaintiff, were the courts below correct in dismissing the prayer of the plaintiff for a decree for permanent prohibitory injunction against the defendant? - (c) When the alleged lease created by Ext.B2 Verumpattom chit is void and persons who claims under such a transaction cannot claim even value of improvements, were the courts below correct in directing the plaintiff to pay mesne profits to the defendant who is a person claiming under a void tenancy Ext.B2? **R.S.A.No.882 of 2008** 5 6. The learned counsel for the appellants made the following submissions before me in support of this second appeal:- When Exts.A1,A8,A9 and A10 very clearly mention that the extent conveyed thereunder is 13 cents, the courts below should not have held that the area conveyed thereunder was less than 13 cents by going by the measurements. If the area covered under Ext.A1 is 13 cents then it will certainly take in the counter claim property including the eastern house. The house situated on the eastern side bearing building No.443 of Thekkumkara panchayat was permitted to be occupied by Rosa who had no independent right over the same. That apart, Ext.B2 lease deed of the year 1968 is clearly hit by Section 74 of the Kerala Land Reforms Act as per which there is a total interdict against the citation of any tenancy after 1.4.1964 of any land. It has been held in **Kannan v. Kunhabdulla** (1981 KLT (SN)169) and **Suhara v. State of Kerala** (1995(2)KLT(SN)54) that a transaction in contravention of Section 74 of the Kerala Land Reforms Act is invalid and null and void for all purposes. If so, the counter claim made by the defendant could not have been decreed by the courts below, since the very title of the defendant **R.S.A.No.882 of 2008** 6 is invalid and null and void. 7. I am afraid that I cannot agree with the above submissions. With regard to the area actually conveyed under Exts.A1, A8,A9 and A10, both the courts have concurrently held that the same is not 13 cents but less than 13 cents. The courts below have taken into account the specific measurements given in the documents, particularly Ext.A1. When there is conflict between measurements and area there is nothing wrong in giving precedence to the measurements over the area which is a sound rule of interpretation of deeds. Moreover, the admission by the plaintiff examined as PW1 that the house referred to in his documents of title in the western house where he is residing will probabilise the defendants' contention that the eastern house was excluded in the title deeds of the plaintiff. It being a pure question of facts this Court will not be justified in interfering with the said finding recorded by the courts below. The courts below have held that the plaintiff was not in possession of the counter claim scheduled property. 8. Now coming to the counter claim made by the defendant, it is true that Ext.B1 lease deed is after 1.4.64 but **R.S.A.No.882 of 2008** 7 then the property leased under Ext.B2 is a building and the land appurtenant thereto. No doubt, the learned counsel appearing for the appellant is right in his submission that Ext.B2 does not specifically mention about the existence of the building. But same is the case with Ext.A1 as well. There were two houses in Ext.A1 property. When he was examined as PW1 the plaintiff conceded that the house referred to in all the documents was the western house bearing building No.445 corresponding to new building number 510. So there was omission to mention about the existence of the eastern house bearing building No.443 corresponding to new number 508. Even according to the plaintiff, this eastern house is more than 50 years old and the house was in existence even on the date of Ext.B2 lease. Therefore, Ext.B2 can only be treated as a lease of a building with appurtenant land which is exempted from the operation of Chapter 2 of the Kerala Land Reforms Act by virtue of Section 3 (i)(ii) of the Kerala Land Reforms Act. Hence the land envisaged under Section 74 of the Kerala Land Reforms Act cannot include a building with an appurtenant land . So viewed, Ext.B2 is not hit by Section 74 of the Kerala Land Reforms Act. If so, Ext.B1 **R.S.A.No.882 of 2008** 8 assignment by Kunhjannam in favour of the defendant is also not tainted with any illegality. The courts below have accepted the defendant's case that the plaintiff had trespassed upon the eastern building bearing building No.443 at a time when defendant was away. A person who comes into possession by recent trespass can maintain an action for injunction against the true owner in respect of such trespassed area only if he could be said to be in settled possession. The plaintiff who has filed to prove his title over the disputed area covered by the counter claim scheduled property was thus not entitled to a decree of injunction nor could he resist the counter claim for recovery of the disputed house and the appurtenant land. In that view of the matter also the judgment and decree passed by the courts below cannot be faulted. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 3rd day of December, 2008. ## **V. RAMKUMAR, JUDGE** sj