Kunjalachi and others v. Kochappu Raman and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940 RSA.No. 19 of 2004 (B) AGAINST THE DECREE AND JUDGMENT DATED 12-12-2002 IN AS NO.61/1999 of ADDITIONAL DISTRICT COURT, NORTH PARAVUR AGAINST THE DECREE AND JUDGMENT DATED 03.07.1998 IN OS NO.226/1985 OF MUNSIFF'S COURT, ALUVA ## APPELLANTS(APPELLANTS/DEFENDANTS 10, 12 TO 16, 22 TO 25): (**)1. KUNJALACHI, D/O.VARIATH, THEVARKATTUPARAMBIL, THURUTHISSERI KARA, CHENGAMANADU VILLAGE. (DIED. LHRS IMPLEADED) 2. KURUMBAN, S/O.KACHARIPALLI, VAZHAVACHA PARMBIL, NEDUMBASSERI KARA, CHENGAMANADU VILLAGE. 3. CHATHAN, S/O.KACHARIPALLI, -DO- -DO- 4. KANNAN, S/O. -DO- -DO- 5. PAZHUKKA, D/O. -DO- -DO- 6. KURUMBA, D/O. -DO- -DO- - (***)7. ANNAMKUTTY, W/O.PATHROSE, THEVARKADU PARAMBIL, NEDUMBASSERY KARA. - (***)8. VARGHESE, S/O.PATHORSE, -DO- -DO- - (***)9. KOSHY, S/O. -DO- -DO- - (***)10. SIKSHA, S/O.PATHROSE, -DO- -DO- TRANSPOSED TO ADDL.RESPONDENTS 26 TO 29. - (**)ADDITIONAL APPELLANTS 11 TO 14. ADDL.A11. C.M.ELIAS, S/O.MATHAI, AGED 54, CHIRAKKAL HOUSE, MEKKAD P.O., THURUTHISSERY, PIN-683 589. ADDL.A12. MARIYAMMA, AGED 50, D/O.KUNJALACHI, CHIRAKKAL HOUSE, MEKKAD P.O., THURUTHISSERY, PIN-683 589. ADDL.A13. C.M.YACOB, S/O.MATHAI, AGED 45, CHIRAKKAL HOUSE, MEKKAD P.O., THURUTHISSERY, PIN-683 589. RSA.No. 19 of 2004 2 ADDL.A14. LILLY, D/O.KUNJALACHI,AGED 42, CHIRAKKAL HOUSE, MEKKAD P.O., THURUTHISSERY, PIN-683 589. LHRS OF THE DECEASED APPELLANT NO.1 ARE IMPLEADED AS ADDL.APPELLANT NOS.11 TO 14, AS PER ORDER DTD.4/7/17 IN IA.1534/2017. A2 TO A6,ADDL.A11 TO A14 BY ADVS.SRI.DINESH R.SHENOY A7 TO A10 BY SRI.K.G.BALASUBRAMANIAN RESPONDENTS(RESPONDENTS/PLAINTIFFS&DEFENDANTS 1 TO 9, 11, 17 TO 21) 1. KOCHAPPU RAMAN, KAKKUZHI, RESIDING AT THEVARKADUPARAMBIL, THURUTHISSERY KARA, CHENGAMANADU VILLAGE. (DIED) 2. JANAKI, D/O.RAMAN, -DO -DO- 3. KARTHIAYANI, D/O.RAMAN, -DO- -DO- - (*)4. NARAYANAN, S/O.RAMAN, -DO- -DO- DIED. LRS IMPLEADED - (****)5. NEELAKANTAN, S/O.RAMAN, -DO- -DO- DIED. LRS IMPLEADED 6. SUBRAMANIAN, S/O.RAMAN, -DO- -DO- 7. PADMANABHAN, S/O.RAMAN, -DO- -DO- 8. VARIATH CHENGANADAN, THEVARKADU PARAMBIL, THURUTHISSERI KARA, CHENGAMANADU VILLAGE (DIED) 9. SCARIA JOSEPH, KANDATHIL, -DO- -DO- 10. V.N.SUKUMARAN, THEVARKADUPARAMBIL, -DO- -DO- (DIED) 11. VARIATH KURUVILA, KANNOTH, -DO- -DO- (DIED) 12. THERUNKA VARIATH POULOSE, -DO- -DO- (DIED) 13. KACHARIPALLI VAZHAVACHAPARAMBIL, -DO- -DO- (DIED) 14. ANNAM, W/O.SCARIA JOSEPH, THEVARKADU PARAMBIL -DO- -DO- 15. AVARACHAN, S/O.KANNOTH KURUVILA, -DO- -DO- 16. PATHORSE, S/O.VARIATH, THEVARKADUPARAMBIL, -DO- -DO- (DIED) 17. VIBHOOTHI RAO, S/O.S.D.SHARMA, -DO- -DO- 18. POULOSE, S/O.KURUVILA, MAMPALLY VEETTIL, POIKATTUSSERI KARA, MEYKADU VILLAGE (DIED) 19. ANNAM, W/O.KURUVILA, KANNOTH,THURUTHISSERI KARA, CHENGAMANADU VILLAGE. RSA.No. 19 of 2004 3 20. PONNAMMA, W/O.SUKUMARAN, THEVARKADU PARAMBIKL, -DO- -DO- 21. AMBILI, D/O.SUKUMARAN, -DO- -DO- 22. SHAJI, S/O.SUKUMARAN, -DO- -DO- ## (*)ADDITIONAL RESPONDENTS IMPLEADED: - R23. MADHAVI, W/O.LATE NARAYANAN, THEVARKADU PARAMBIL, THURUTHISSERY KARA, MEKKAD P.O., NEDUMBASSERY VILLAGE. - R24. INDIRA,D/O.LATE NARAYANAN, -DO- -DO- - R25. RAJU,S/O.LATE NARAYANAN, -DO- -DO- ADDITIONAL RESPONDENTS 23 TO 25 ARE IMPLEADED AS THE LRS OF THE DECEASED 4TH RESPONDENT VIDE ORDER DT.29.6.06 IN IA 994/04 (***)ADDL.RESPONDENTS 26 TO 29 ADDL.R26. ANNAMKUTTY W/O.THEVARKKATTIL PATHROSE, AGED 76, THURUTHISSERY, NEDUMBASSERY PO:683589, ERNAKULAM DISTRICT. - ADDL.R27. VARGHESE S/O.THEVARKKATTIL PATHROSE, AGED 50, THURUTHISSERY, NEDUMBASSERY PO:683589, ERNAKULAM DISTRICT. ADDL.R28. KOSHY S/O.THEVARKKATTIL PATHROSE, AGED 48, THURUTHISSERY, NEDUMBASSERY PO:683589, ERNAKULAM DISTRICT. ADDL.R29. SIKSHA THEVARKKATTIL PATHROSE, AGED 46, THURUTHISSERY, NEDUMBASSERY PO:683589, ERNAKULAM DISTRICT. APPELLANTS 7 TO 10 ARE TRANSPOSED AS ADDL.RESPONDENTS 26 TO 29 AT THE RISK OF THE PETITIONERS AS PER ORDER DTD.13/12/17 IN IA.3328/17. (****)ADDITIONAL RESPONDENTS 30 AND 31 30. KN RAJANI, W/O.RAJAN, AGED 38 YEARS NO OCCUPATION, CHATHAMKUNNIL HOUSE, MUTHARIKKULAM, PAYYAVOOR, KANNUR, PIN-670633 31. KN RAJANEESH, S/O.NEELAKANDAN, AGED 36 YEARS, THEVARAKKATTIL HOUSE, PERAVOOR PO, THIRUVONAPRAM, PIN-670673 KANNUR DISTRICT ADDITIONAL RESPONDENTS 30 AND 31 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 06.04.2018 IN IA 1063/2018. R2 BY ADV. SRI.ROY MATHEW R3,R6,R7,R23 TO R25, ADDL.R30 & R31 - BY ADV. SRI.R.SURENDRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.06.2018, THE COURT ON 06-07-2018 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------R.S.A. No. 19 of 2004 -------------------------------------Dated this the 6[th] day of July, 2018** The appellants are the defendants 10 and 12 to 16, 22 to 25 in O.S.No.226 of 1985 before the Court of Munsiff, Aluva. Respondents are the plaintiffs and the defendants 1 to 9, 11 and 17 to 21 in the original suit. Since the appellants' contentions were repelled, they filed A.S.No.61 of 1999 before the Additional District Court, North Paravur. There again they suffered a set back and hence this second appeal. 2. Facts, in short, are as follows:Plaint schedule property originally belonged to Thuruthy Mana. Original plaintiff was in possession of the property as per Ext.A1 lease deed. Thereafter he purchased jenm right through Land Tribunal concerned (Ext.X4). When the 1[st] defendant attempted to trespass into the property, the plaintiff had to file O.S.No.439 of 1963 before the Munsiff's Court, Paravoor. The matter was taken up in A.S.No.157 of 1967 before the Additional District Court, North Paravur. In the appeal, the learned District Judge found that the plaintiff is in possession of the property. Thereafter there was no problem for some time. Subsequently in the year 1978, the 1[st] defendant along with other defendants in the suit trespassed into the property and put up buildings. The plaintiff though approached the Revenue Divisional Officer and Police, no tangible action was taken by them. 6[th] defendant is a resident of the 2 RSA No.19 of 2004 neighbouring property and other defendants, who are close to the 6[th] defendant, attempted to trespass into the plaint schedule property. 3[rd] defendant put up a small shed in the property and started residence. Due to political influence, the police was reluctant to take action against the defendants. Hence the suit for recovery of possession of the property, mandatory injunction directing the defendants to demolish the houses put up by them and a permanent prohibitory injunction restraining the defendants from obstructing the plaintiff's possession over the property. During the pendency of the suit the original plaintiff died and his legal heirs were impleaded as additional plaintiffs. 3. The contesting defendants filed written statements raising similar contentions. Original plaintiff was never in possession of the plaint schedule property as per Ext.A1 lease deed. The property was in the possession of several persons. Decree in O.S.No.439 of 1963 and the judgment in A.S.No.157 of 1967 are not binding on the defendants. The defendants are in possession of the property and they have planted trees thereon as part of their enjoyment. It is incorrect to say that the 1[st] defendant unauthorisedly put up a house in the year 1978 in the plaint schedule property and thereafter four other houses were also put up with the help of other defendants. The said houses were in existence long before. Contention that the plaintiff obtained purchase of jenm right through the Land Tribunal is opposed. If at all Ext.X4 was issued by the Land 3 RSA No.19 of 2004 Tribunal, it does not bind the defendants. There was a previous case filed by the jenmi against the present plaintiff and his children along with one Maniyan Kandankoran for arrears of rent and to evict them from 2.21 acres of property. That suit was compromised between the present plaintiff and the plaintiff in O.S.No.298 of 1953 and thereafter Ext.B1 decree was passed on 31.01.1956. Ext.B1 decree is not binding on Maniyan Kandankoran since he was not a party to the compromise. As per the compromise, the plaintiff obtained only one acre of property including his house. Pattam (rent) for the said one acre was fixed as six paras of paddy and a bunch of plantains. Balance 1.21 acres of property was released by the plaintiff to the jenmi Mana towards arrears of rent. Hence the plaintiff has no right over 1.21 acres of property. If at all the 1[st] defendant had anything done in violation of the injunction decree in O.S.No.439 of 1963, the plaintiff should have resorted to the remedies under Order XXI Rule 32 of the Code of Civil Procedure, 1908 (in short, “Code”). Taking no steps in that regard would show that the plaintiff was not in possession of the property and the defendants did not trespass into it. Various defendants are in possession of various parts of the property which was not specifically described in the plaint. Therefore, the plaintiff is not entitled to get any relief. 4. Trial court examined four witnesses on the plaintiff's side and three on the side of the defendants. Exts.A1 to A3 and B1 to B25 were 4 RSA No.19 of 2004 marked on either side. Exts.C1 and C2 series are the commissioner's report and plan. The documents produced on summons, marked as third party exhibits, are Exts.X1 to X4. After considering the rival contentions, the suit was decreed and it was confirmed in appeal. 5. Heard the learned counsel appearing for the appellants, supporting respondents and the contesting respondents. 6. The substantial questions of law framed, and on which notices to the respondents were issued are thus: 1. What, if any, is the evidenciary value and effect of Ext.X4? 2. Have the courts below acted in accordance with law in the matter of appreciating the evidence on record? 7. Learned counsel for the appellants and supporting respondents vehementally opposed the judgments and decrees passed by the courts below contending that many vital legal and factual issues were omitted to be considered in the correct perspective. 8. The first submission raised by the learned counsel for the appellants is that the schedule shown in the plaint does not match with the prayer for recovery of possession. In answer to that contention, the learned counsel appearing for the contesting respondents contended that the plaint was amended subsequently, not only by adding certain recitals relevant for seeking recovery of possession, but also a detailed schedule showing the property wrongfully possessed by the appellants. As per the amendment, 5 RSA No.19 of 2004 the properties in the possession of defendants 1, 3, 4 and 6 and that in the possession of the 2[nd] defendant have been separately and specifically shown. Court fee has also been paid for recovery of possession on the strength of title under Section 30 of the Kerala Court Fees and Suits Valuation Act. It is also brought to my notice that a commissioner has inspected the property with the help of a surveyor and submitted Exts.C1 and C2. Trial court has appended the plan as part of the decree in order to attain clarity while granting the decree for recovery of possession. After hearing the counsel on both sides and on perusal of the pleadings as well as the commissioner's report and plan, I am unable to accept the contention raised by the appellants that the properties sought to be recovered are unclearly and inaccurately described. 9. Admittedly the properties belonged to Thuruthy Mana in jenm. Mana filed a suit against the original plaintiff Kochuraman and his wife and children (who have been impleaded in this proceedings after the death of the original plaintiff) as O.S.No.298 of 1953 before the Court of Munsiff, North Paravur. That suit was compromised as per Ext.B1. Apart from the original plaintiff, his wife and children, Maniyan Kandankoran was also impleaded as additional 10[th] defendant. He did not join the compromise, nor did he sign on Ext.B1. From the recitals in Ext.B1, it will be clear that the original plaintiff, Kochuraman was in possession of 2.21 acres of land involved in the present dispute on tenancy right and he agreed to surrender 6 RSA No.19 of 2004 1.21 acres of land to Mana for defraying the arrears of rent. Original plaintiff Kochuraman was allowed to retain one acre and a house therein. The recitals in Ext.B1 will not show that Kochuraman (1[st] defendant in O.S.No.298 of 1953) had actually surrendered the land to Mana. What is mentioned in Ext.B1 is that the jenmi/plaintiff was allowed to take delivery of the property in execution of the compromise decree. The contention raised by the plaintiffs in this case is that at no point in time, 1.21 acres of land had gone out of possession of the original plaintiff. It is pertinent to note that pending the suit, original plaintiff died and his wife and children were impleaded in the proceedings. It is the consistent case of the plaintiffs that despite Ext.B1 compromise, the entire property remained with the plaintiffs and Mana did not take any step to recover possession. It is also their contention that since the entire extent of 1.21 acres remained with the plaintiffs, there was no occasion for Mana to transfer the property to Maniyan Kandankoran or anyone else under him. The plaintiffs candidly contended that none of the defendants could claim any right under jenmi Mana or Maniyan Kandankoran as the entire property remained throughout in the possession of plaintiffs until some of the defendants trespassed upon it. 10. In opposition to this argument, learned counsel for the appellants and the supporting respondents would contend that the plaintiffs' case that some of the defendants trespassed into the property in 7 RSA No.19 of 2004 the year 1978 is belied by Exts.B17 to B24 building tax assessment register, which will go to show that from 1968-69 onwards the contesting defendants are residing in the buildings situated in the property. This argument is refuted by the learned counsel for the plaintiffs by contending that there is no material on record to show that Exts.B17 to B24 related to the buildings situated in the disputed property. The credibility of those documents have been strongly denied by the learned counsel for the contesting respondents contending that there is no reliable evidence to show that the building tax receipts pertain to any building situated in the property sought to be recovered. I find no material to think that Exts.B17 to B24 related to the buildings situated in the property. Courts below rightly eschewed them from consideration at the time of weighing the probabilities. 11. Serious challenge is made against Ext.X4 patta issued in the name of the original plaintiff as per the proceedings in O.A.No.424 of 1973 of Parakkadavu Land Tribunal. The descriptions in Ext.X4 would show that 2.21 acres of land in survey No.474/8 was assigned to him. Learned counsel for the appellants and supporting respondents contended that Ext.X4 cannot be legally countenanced for the reason that Ext.B1 compromise would show that the original plaintiff had agreed to surrender 1.21 acres of land to the erstwhile jenmi (Mana) and therefore Ext.X4 could not have been issued in respect of the entire 2.21 acres. It is the contention of the appellants that the original plaintiff cannot be regarded as 8 RSA No.19 of 2004 a tenant as defined in Section 2(57) of the Kerala Land Reforms Act, 1963. (in short, “KLR Act”). The provision reads as follows: “ _“tenant” means any person who has paid or_ _has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes-_ _(a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration,_ - _(aa) an intermediary,_ - _(b) a kanamdar,_ - _(c) a kanam-kuzhikanamdar,_ - _(d) a kuzhikanamdar,_ - _(dd) an ottikuzhikanamdar,_ - _(e) a mulgenidar,_ _(f) a verumpattamdar of any description (including a customary_ ## _verumpattamdar),_ - _(g) the holder of a chalgeni lease,_ - _(h) the holder of a kudiyiruppu,_ - _(hh) a person holding lands under a_ 9 RSA No.19 of 2004 ## _kuzhichuvaipum kudiyiruppum,_ _(hhh) the holder of a karaima,_ _(i) the holder of a vaidageni lease,_ _and_ _(j) a person who is deemed to be a tenant under Section 4, Section 4A, Section 5, Section 6, Section 6A, Section 6B, Section 7, Section 7A, Section 7B, Section 7C, Section 7D, Section 7E, Section 8, Section 9 or Section 10, or presumed to be a tenant under Section 11._ _**Explanation** .- For the purposes of this clause,-_ _(i) “holder of a chalgeni lease” means a lessee or sub-lessee of specific immovable property situate in the taluk of Hosdurg or Kasaragod in the district of Cannanore, who has contracted either expressly or impliedly to hold the same under a lease, whether for a specified period or not;_ _(ii) “mulgeni” means a tenancy in perpetuity at a fixed invariable, rent created in favour of a person called mulgenidar;_ 10 RSA No.19 of 2004 _(iii) “vaidageni lease” means a lease for a term of_ _years”_ 12. Reliance is placed on a Full Bench decision of this Court in **Muhammad Haji v. Kunhunni Nair (1993 (1) KLT 227)** to raise a contention that unless notice prescribed under Section 72F of the KLR Act was not published in the manner contemplated, the purchase certificate issued under Section 72K of the KLR Act is of no legal effect. This proposition is indubitable. But, the question arising for consideration is whether the defendants were entitled to receive a notice in Ext.X4 proceedings. On a perusal of the entire evidence, the answer can only be in the negative. 13. As mentioned earlier, though it was agreed as per Ext.B1 compromise that the original plaintiff, his wife and children would surrender 1.21 acres of land to the jenmi, there is no material produced to show that the property had actually been surrendered. Unless Mana got possession of entire extent of 1.21 acres, they could not have created a new tenancy either in favour of the defendants or their predecessors-in-title or Maniyan Kandankoran. There is no evidence to show that Mana ever came into possession of the property pursuant to Ext.B1 compromise. 14. Another contention raised by the learned counsel for the appellants is that since in Ext.B1 the original plaintiff, his wife and children 11 RSA No.19 of 2004 had agreed to surrender their tenancy right in respect of 1.21 acres, it cannot be said that they were holding possession as tenants in respect of that property, even if we assume that they did not actually surrender land to Mana. Stated differently, one acre of land allowed to be retained by the original plaintiff was outstanding in tenancy right with him and the remaining 1.21 acres of land, if at all he had not surrendered, was outstanding in his possession not as a tenant. Therefore, it is contended that Ext.X4 purchase certificate in any case cannot be accepted. 15. Controverting this argument, learned counsel for the respondents contended that the agreement in Ext.B1 never came into effect and the original plaintiff and other defendants in Ext.B1 suit continued in possession as tenants. Therefore, they had qualified the definition of “tenant” in Section 2(57) of the KLR Act. In any case, if they are found to be not a tenant under Section 2(57), certainly they will be licensees as defined in Section 2(33) of the KLR Act. By virtue of Section 10 of the said Act, a licensee also becomes a deemed tenant. Sections 2(33) and 10 of the KLR Act are reproduced hereunder: _“(33) “licensee” means any person who is in occupation of any nilam belonging to another and who, under any local custom or usage or under an agreement, cultivates that nilam with paddy for a remuneration and with the risk of cultivation, but does_ 12 RSA No.19 of 2004 _not include a person who cultivates the nilam of another merely as an agent or servant”_ ## _“10._ _**Certain other persons to be deemed**_ _**tenants** .- Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of Court, the following classes of persons shall be deemed to be_ _tenants:-_ ## _(i) a punam or kumri cultivator;_ - _(ii) a licensee_ - _(iii) a varamdar;_ - _(iv) a vechupakuthidar; and_ - _(v) a person holding land situate in any part of_ _the taluk of Hosdrug or Kasaragod to which the Malabar Tenancy Act, 1929, did not extend, under a transaction described in the document evidencing it as bhogya, otti, nattotti, arwar, illidarwar or Krithasartha Illidarwar, but not being a usufructuary mortgage as defined in the Transfer of Property Act, 1882.”_ On a reading of the above provisions, it can be seen that the land in question must be a nilam (paddy field) to attract the benefit. With reference 13 RSA No.19 of 2004 to the documents and pleadings produced on the side of the appellants themselves, it is established that the land in question was a paddy field at the time of Ext.B1 suit. It must have been reclaimed subsequently, without affecting its classification in the revenue records. It is therefore clear that by remaining in possession, the original plaintiff at any rate would have acquired the status of a licensee and therefore entitled to be deemed as a tenant under the KLR Act. As pointed out by the learned counsel for the contesting respondents, in this case this Court is not sitting in appeal on Ext.X4 certificate and the proceedings culminating in its issuance. If the appellants felt aggrieved, they should have challenged Ext.X4 in a separate proceeding. 16. Reliance has been placed on Ext.A2 judgment passed by the learned Additional District Judge, North Paravur in A.S.No.93 of 1974. That arises out of the judgment and decree in O.S.No.439 of 1963 before the Court of Munsiff, Paravur. The original plaintiff was the plaintiff in that suit. The suit was one for an injunction restraining the 1[st] defendant from entering the plaint schedule property and from carrying out agricultural operations thereon. Trial court decreed the suit and hence the defendant's appealed before the lower appellate court. In that case, the entire issues were considered in detail. The learned Additional District Judge entered a finding that the plaintiff (original plaintiff in this case) was in possession of the entire property and hence the injunction decree passed by the trial 14 RSA No.19 of 2004 court was confirmed. Admittedly, Ext.A2 has become final. Hence 1[st] defendant herein is bound by the decree. O.S.No.439 of 1963 had a chequered career. It was dismissed on 30.09.1967 originally and an appeal was filed by the plaintiff as A.S.No.157 of 1967 before the Additional District Court, North Paravur. That appeal was allowed on 08.02.1971, against which the 1[st] defendant preferred a second appeal before this Court as S.A.No.881 of 1971. The second appeal was allowed in part and the matter was remanded to the trial court. Thereafter, the trial court decreed the suit as per Ext.B25 judgment dated 18.01.1974. Against that judgment, an appeal was preferred, wherein Ext.A2 judgment happened to be passed. Ext.A2 judgment was delivered by the Additional District Judge on 08.12.1977. Learned counsel for the contesting respondents brought to my notice that Ext.B2 assignment by the 1[st] defendant and his son, 9[th] defendant, in favour of 5[th] defendant was made on 11.10.1967. That assignment was a lis pendense transaction as O.S.No.439 of 1963 was pending at that time. Ext.B4 is dated 21.07.1970, which is also a lis pendense transaction, executed by defendants 1 and 9 in favour of 14[th] defendant. Exts.B6 to B9 are assignments said to have been made by Maniyan Kandankoran and his successors-in-title in favour of the defendants. Learned counsel for the contesting respondents argued that in the absence of any reliable material to show that Maniyan Kandankoran was put in possession on a tenancy right by Mana (jenmi) Exts.B6 to B10 15 RSA No.19 of 2004 cannot be relied on. 17. With reference to Ext.B3, learned counsel for the contesting respondents contended that it does not mention any survey number and where exactly the property is not discernible from the recitals therein. In respect of Ext.B5, it is contended that this certificate issued in the name of Maniyan Kandankoran cannot be relied on for the reason that Mana never acquired possession of the property from the original plaintiff in order to create a tenancy in favour of Maniyan Kandankoran. Anybody claiming under him cannot have a better title than Maniyan Kandankoran himself is an indisputable proposition. 18. It is also pointed out that the said purchase certificates are subsequent to Ext.X4 and there cannot be two purchasers in respect of the same land and if there be two purchase certificates, the first one should prevail. Ext.X4 related to an erstwhile nilam is fortified by the written statement filed by the 1[st] defendant herein, as the 1[st] defendant in O.S.No.439 of 1963, which is produced as Ext.A3. It would show that the disputed property was a paddy field at the material time. Therefore, Ext.X4 is valid in all respects, contended the learned counsel for the contesting respondents. 19. Exts.B6 to B9 are the assignments to the contesting defendants from Maniyan Kandankoran and his legal heirs. All these documents came into being pending O.S.No.439 of 1963, either before the 16 RSA No.19 of 2004 trial court or the appellate court. It is contended by the learned counsel for the contesting respondents (plaintiffs) that how Maniyan Kandankoran obtained right, title and interest over the properties has not been clearly mentioned in any of the documents. As mentioned above, Maniyan Kandankoran could not have claimed a leasehold right under Mana, unless Mana was in possession of the property pursuant to Ext.B1 compromise, which the facts do not establish. 20. Learned counsel for the contesting respondents contended that the pleadings should be liberally construed and the substance of the pleadings must be considered, instead of its form. It is also contended that since the parties were aware of the pleadings raised against each other and they went for trial in full understanding the rival contentions, the question of absence of plea cannot be raised by any of the parties. To buttress this contention, the decision in **Ram Sarup Gupta v. Bishun Narain Inter College ((1987) 2 SCC 555)** is pressed into service. The propositions in the decision are beyond any pale of doubt or dispute. In this case, the parties clearly understood as to what are the properties sought to be recovered and who is in possession. Therefore, I find no prejudice caused to the contesting defendants, even if there was any slackness in the pleadings. 21. Learned counsel for the contesting respondents contended 17 RSA No.19 of 2004 that in respect of plots 2, 3 and 4 shown in the commissioner's plan, which has been appended to the decree, the plaintiffs have no claim. In otherwords, they are not claiming any relief against 11[th] defendant Vibhuthi Rao, deceased 3[rd] defendant V.N.Sukumaran and 4[th] defendant Variath Kuruvila. It is the case of the plaintiffs/contesting respondents that the properties shown as plots 1 and 5 alone are sought to be recovered from the possession of the defendants, whereas plot No.6 in the commissioner's plan is their own property, which is not included in dispute. 22. After hearing the learned counsel on both sides and on a careful scrutiny of the evidence and the above decisions, it will be clear that the courts below are justified in granting a decree in favour of the plaintiffs/contesting respondents. Ext.X4 can only be held to be valid in the light of the discussion made above. Therefore, the plaintiffs have acquired title to the property. It is come out through oral and documentary evidence, including the commissioner's report and plan, that the defendants are in possession of certain portions of the plaint schedule property without any legal right. In the absence of any pleadings regarding adverse possession and limitation, the plaintiffs on establishing their title are entitled to get the reliefs claimed. The appreciation of evidence by the courts below is without any flaw and therefore the substantial questions of law can only be decided against the appellants. 23. I find no merit in the second appeal. However, it is made 18 RSA No.19 of 2004 clear in the light of the submission by the learned counsel for the plaintiffs/contesting respondents that the decree granted by the court below will be effective only in respect of plots 1 and 5 in Ext.C2(a), which is appended to the decree. To this extent, the decree is modified. Appeal is disposed accordingly. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** ## **cks**