**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939**
**AFA.NO. 29 OF 2002**
**AGAINST THE JUDGMENT IN A.S. NO.300 OF 1993 OF HIGH COURT OF KERALA DATED 16-11-2001 AGAINST THE JUDGMENT IN O.S. NO.103/1990 OF THE SUB COURT, THALASSERY DATED 30-09-1992**
## **APPELLANT(S)/APPELLANT/DEFENDANT:**
**--------------------------------**
**M/S.THE BALIAPATTAM TILE WORKS LTD., A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES, ACT, REGD.OFFICE P.O.PAPPINISSERI.**
**BY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K.**
## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:**
**-----------------------------------**
**M/S. WESTERN INDIA COTTONS LTD.,**
**A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES, ACT, P.O.PAPPINISSERI.**
**R, BY ADV. SMT.UMA GOPINATH R, BY ADV. SRI.U.K.RAMAKRISHNAN**
**R, BY ADV. SRI.P.V.LOHITHAKSHAN**
**THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2018, THE COURT ON 06-03-2018 DELIVERED THE FOLLOWING:**
## V. CHITAMBARESH &
## SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = = A.F.A. No.29 of 2002 = = = = = = = = = = = = = = = = = = Dated this the 06[th] day of March, 2018
J U D G M E N T
## SATHISH NINAN, J.
Assailing the concurrent decree for recovery of possession, the defendant is in appeal.
2. The plaint schedule property has an extent of 9.40 acres. The plaintiff claims title over the property as per Exhibit X1 sale deed dated 10.09.1954. The property originally belonged to M/s.Aaron Spinning & Weaving Co., Ltd. To raise amounts, the Company issued debentures. To secure the debenture holders, the company executed trust deeds. One T.N.Krishnaswmay was constituted as the Trustee. Various properties including the plaint schedule property was mortgaged in favour of the Trustee. On 04.07.1954, the debenture holders passed a resolution authorising the debenture Trustee - T.N.Krishnaswmay - to sell the mortgaged properties. In the auction so conducted the
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plaintiff purchased the property. Pursuant thereto, Ext X1 sale deed was executed in favour of the plaintiff. Item No.8 in Ext. X1 sale deed is the plaint schedule property. Alleging that the defendant who is the adjoining owner trespassed into the plaint schedule property, the suit was filed for recovery of possession on the strength of title. A further relief of mandatory injunction was also sought, for removal of certain structures put up in the property by the defendant. The defendant claimed rival title over the property. According to it, the property was conveyed in its favour by M/s.Aaron Spinning & Weaving Co., Ltd., and it was put in possession. Subsequently, it obtained jenmom right over the property as per Ext B12 purchase certificate issued by the Land Tribunal, Kannur in O.A. No.6895 of 1976. The defendant also raised an alternative plea of having acquired title by adverse possession.
3. The trial court decreed the suit in part. As regards part of the decree that went against the
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plaintiff, there was no challenge. The said portion of the decree has become final and binding on the plaintiff. The defendant challenged the decree, in so far it is against it, before the learned single judge. The same was dismissed confirming the judgment of the trial court.
4. Heard shri K.V. Sohan learned counsel on behalf of the appellant-defendant and Shri U.K.Ramakrishnan, learned Senior Counsel on behalf of the respondent-plaintiff.
5. In the written statement filed by the defendant, it is contended thus:
“3. The plaint schedule property admittedly belonged to M/s.The Aaron Spinning and Weaving Mills Ltd.....”.
“11. It is admitted that originally the said land belonged in Jenm to Kalarivathukkal Devaswam of Chirakkal Kovilakam. Chirakkal Valiya Raja issued a 'tharaku' in favour of Samuel Aron granting in his favour of melcharthu of properties and the persons in possession namely “Kanaries” surrendered their possession in favour of the Managing Director of Aaron Spinning Mills. The Aaron Spinning and Weaving Mills in turn sold the property in favour of the Baliapattam Tile Works Limited.......”
“13. Aaron Spinning and Weaving Mills had sold the
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property as early as 1952 in favour of Baliapattam Tile Works for a sum of Rs.30,000/-............... ”
6. As is evident therefrom, the title of M/s.Aaron Spinning & Weaving Co., Ltd. is admitted. The plaintiff claims title as per Ext X1 sale deed executed by the debenture Trustee on the strength of Exts A1 and A2 debenture deeds. The sale under Ext X1 sale deed was affirmed by the High Court of Judicature at Madras, in exercise of its Original Civil Jurisdiction under the Companies Act. The Order dated 21.04.1955 in the said regard is appended to Ext X1 sale deed. Undisputedly, item No.8 in X1 sale deed is the plaint schedule property. Therefore by virtue of Ext X1 the plaintiff had obtained title from M/s.Aaron Spinning & Weaving Co., Ltd.
7. The claim of the defendant is that, M/s.Aaron Spinning & Weaving Co., Ltd., sold the property to the defendant. As is revealed from the averments in the written statement and also the
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deposition of DW1, there is no document of sale and the alleged sale was only oral. Needless to say that such a plea of sale without a registered document, cannot be countenanced. It is their further case that it got possession under the sale and thereafter Ext B12 purchase certificate was obtained by it in respect of the property. Relying on Section 72K of the Kerala Land Reforms Act (for short, “the KLR Act”), it is contended that the purchase certificate amounts to conclusive proof of title and therefore, its title needs to be upheld. Regarding the conclusiveness of purchase certificate, the learned counsel for the appellantdefendant rely on Cheeranthoodika Ahmedkutty v. Parampur Mariyakutty Umma ([2000] 2 SCC 417) and Patinhare Purayil Nabeesumma v. Miniyatin Zacharias ([2008] 5 SCC 25).
8. A purchase certificate under the KLR Act is issued in favour of a cultivating tenant in respect of an agricultural land. The property in question undisputedly is a marshy, water logged
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area. It is not an agricultural property. The averment in paragraph 8 of the written statement is significant and the same reads thus:
“8. The plaint item is said to be a kaipad land. The defendant-company is manufacturing tiles. The clayish earth is mainly used for such purpose.”
It cannot be countenanced that a purchase certificate has been issued under the KLR Act in respect of such property. Apart from the purchase certificate, no other records relating to the issuance of the same has been produced to prove that necessary statutory requirements have been complied with, in the issuance of the certificate. This is significant since, though the defendant claims to have obtained possession of the property under the plaintiff (under an oral sale), admittedly, the plaintiff was not made a party in the proceedings before the Land Tribunal. The plaintiff did not have notice of the said proceedings. On coming to know about the order,
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though the plaintiff preferred an appeal with a long delay, the same was not pursued. However on the facts as noticed, no credence could be given to Ext B12 purchase certificate. Suffice to say that Ext B12 cannot be made the basis for finding title in favour of the defendant.
9. The next plea raised by the defendant is of adverse possession. The plea goes against the very case set up by the defendant of title under the plaintiff. Both the pleas cannot stand together. Further, the plea of possession under an uneffected sale amounts to an acknowledgment of plaintiff's title. Therefore the plea of adverse possession is apparently unsustainable. That apart, both the trial court as well as the learned single judge, with reference to the materials have found that, in respect of the portion of the plaint schedule property for which a decree has been granted to the plaintiff, possession with a hostile animus and adverse to the plaintiff has not been made out. We are in perfect agreement with the said
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finding.
10. Coming to the identity of the property, the trial court issued an Advocate Commissioner to identify and locate the property. The Advocate Commissioner with the help of a Surveyor measured the properties and prepared a report and plan which were marked as Exts C1 and C2. The Commissioner located the property with reference to the title deed of the plaintiff. In Ext C2 plan the Commissioner has shown plots A, A1, A2, B, C, C1, D and E. The plaintiff claims plots A, A1 A2, B, C, C1 and D as the plant schedule property. The defendant's contention was that, the plaint schedule is plots A, A1, A2 C, C1, D and E. DW1 has admitted that the defendant does not have any claim over plot marked as B. The plaintiff has not claimed any relief in respect of plot marked E. Therefore, essentially the dispute is centered around plots A, A1, A2, C, C1 and D. As regards plots A1, A2 and C1, the trial court has held that the right of the plaintiff over the said plots have
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been lost by adverse possession and limitation. The same was not challenged by the plaintiff and hence has become final. Therefore what remains is only regarding plots A, B, C and D in Exhibit C2 plan. As held supra, the plaintiff has established its title over the said plots under and by virtue of Ext X1 sale deed. The plaintiff is entitled to recovery of the said plots on demolition of the structures constructed by the defendant therein as held by the trial court and as affirmed by the learned Single Judge.
In the result, the appeal is dismissed. No
costs.
## V. CHITAMBARESH, JUDGE.
## SATHISH NINAN, JUDGE.
vsv
