Narayanan Namboodiri v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **SA.No. 423 of 2002** **AGAINST THE JUDGMENT AND DECREE DATED 23-10-2001 IN AS 211/1996 OF III ADDITIONAL DISTRICT COURT, KOLLAM** **AGAINST THE JUDGMENT AND DECREE DATED 29-06-1996 IN OS 371/1994 OF MUNSIFF COURT, KARUNAGAPPALLY** ## **APPELLANT/APPELLANT/PLAINTIFF:** **NARAYANAN NAMBOODIRI NARAYANAN NAMBOODIRI, RESIDING AT KUMARAMANGALAM ILLOM, PARAMPUZHAYIL, VIJAYAPURAM VILLAGE,, KOTTAYAM TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, NARAYANAN NAMBOODIRI SUDERSANAN, OF DO.DO.** **BY ADVS.** **SRI.R.RAJASEKHARAN PILLAI SRI.GEORGE T. THACHETT SRI.M.S.NISHAD** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR,** - **OFFICER OF THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM.** - **3 THE DISTRICT MEDICAL OFFICER, OFFICER OF THE DISTRICT MEDICAL OFFICER, KOLLAM.** - **4 THE MEDICAL OFFICER IN CHARGE, COMMUNITY HEALTH CENTRE, CHAVARA.** ## **BY ADV. GOVERNMENT PLEADER SRI.K.P.MADHU** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No. 423 of 2002 2** ## **JUDGMENT** The defeated plaintiff in both the Trial Court (Munsiff's Court, Karunagappally) in O.S.No.371/1994 and the First Appellate Court (III Addl. District Court, Kollam) in A.S.No.211/1996, came up with this appeal, aggrieved by the concurrent finding rendered by the courts below, in a suit for declaration of title and recovery of possession. 2. The subject matter of the suit comes to 23 cents of property, wherein admittedly a Community Sub Centre is functioning from the year 1991 onwards. The plaintiffs claim over the property is based on Ext.A2 Will. _Inter alia_ it was contended that the plaintiffs predecessor Narayanan obtained the property in the year 1075 ME under Ext.A7, which is styled as a document of 'Kandezhuth' issued by the then Peshkar. Ext.A9 is the extract of Thandapper account, based on which it was submitted that the predecessor in interest of the plaintiff had obtained possession over the property under ## **SA.No. 423 of 2002 3** Ext.A7, that the property was mutated in his name and that he was paying basic tax, for which Ext.A9 extract to Thandapper account produced through PW2, the Village Officer. On the otherhand, the contention raised by defendant is that the person who obtained possession under Ext.A7 is not the predecessor in interest of the plaintiff, he is somebody else. 3. The suit is one for declaration of title over 23 cents of land. It is not clear from the plaint averments, what kind of title claimed by the plaintiff over the immovable property and whether it is based on any document of acquisition, document of transfer, by devolution or by a decree. No case of succession either advanced in the plaint or brought in evidence. No case of decree also advanced regarding title to the property. The only case advanced is that under Ext.A7 their predecessor had obtained possession over the property and mutated the property and began to pay basic tax. The present suit is one for recovery of possession by admitting that the plaintiff is not in possession of the property. The claim of plaintiff based on Ext.A2 ## **SA.No. 423 of 2002 4** Will deed. Admittedly, the present property not mentioned anywhere in Ext.A2 except a clause that the legate under the Will get all other property belong to the testator left out. The clause incorporated in Ext.A2 Will itself show that the present property was not incorporated with its specification or identification in Ext.A2. Now the claim of plaintiff is based on Exts.A7 and A9 documents. The learned counsel for the appellant relied on the decision drawn by this Court in _**Kalukurumban v.Sarojini Amma (1997 (1) KLT 481)**_ in support of his argument that the entries in the revenue record will confer title over the property. The legal position was very much settled by various decision of Apex Court that the entries in the revenue record will not confer title but when there is a dispute with respect to title the document showing payment of basic tax and transfer of Thandapper under the mutation would be a piece of evidence to be looked into. A Single Bench of this Court in _**Kalukurumban's**_ case (supra) had the occasion to consider various decision rendered by Apex Court, as well as this Court in paragraph 8 of ## **SA.No. 423 of 2002 5** |the said judgment. The dispute involved in that| |---| |case is pertaining to the title based on Ext.A1 to| |A4 documents. Section 2 clause 4 of Kerala Survey| |and Boundaries Act,1961 was also relied on by the| |learned Single Judge of this Court, so as to define| |the wording “Registered holder of any land”. Going| |by the provision contained in the Kerala Survey and| |Boundaries Act 1961, it is clear that the| |“registered holder of any land” stands for any| |property belonged to any legal person other than the| |government.<br>Further the entries in the revenue| |record is intended only for the purpose of| |identification of property and identity of the| |registered owner of the property for the purpose of| |payment of tax. The Apex Court in<br>**_Smt.Sawarni v._**| |**_Smt.Inder kaur (AIR 1996 SC 2823)_**<br>had laid down the| |legal position that the entries in the revenue| |record or the fact of mutation will not confer title| |to a person but it would be a document to show the| |title of the person if he had title over the| |property by other means, either by documents or by| |devolution or by decree. A Division Bench of this| |Court in<br>**_Appukutty v. Kuniyil Achuthan (1989 (1) ILR_**| ## **SA.No. 423 of 2002 6** _**218)**_ held that the entries in the revenue record can be relied on unless the same found to be fraudulent by relying on Section 35 of the Indian Evidence Act. In yet another decision in _**Karthiayani Pillai, Gouri**_ _**Pillai v. Janaki Pillai Lakshmi Pillai (AIR 1958**_ _**Kerala 335)**_ , it was held that Puduval registry in the name of a certain person give some presumption of ownership but capable of rebuttance by any other evidence. The legal position was summarized by the Apex Court in _**Commissioner of Wealth Tax v. Court of**_ _**Wards, Paigah (AIR 1977 SC 113)**_ that the entries in the revenue record has to be presumed to be correct in the absence of evidence to the contrary. It doesn't say anything about the title which can be acquired by virtue of the entries in the revenue record. The fact that the property was not included by specifying the same in Ext.A2 Will _prima facie_ show that this property was not available with the testator as on the date of its execution. The expression “any other property found left out” cannot be taken as a document giving title to the property, to the testator. There is no evidence to show that the possession was continued as on the ## **SA.No. 423 of 2002 7** date of execution of Ext.A2 Will, and it was available with the testator at the time of execution of Ext.A2. The non incorporation of the said property in Ext.A2 would be self explanatory and sufficient to show that the testator was not possessing the property as on Ext.A2. The present suit is one for recovery of possession that itself amounts to an admission that the plaintiff is not having any possession over the property as on the date of suit. The plaintiffs have no case that he was having or obtained possession over the property by virtue of Ext.A2 Will. The possession will not confer any title to the property unless the ingredient which constitute adverse possession and limitation brought out. No such case was advanced by the plaintiff by acquiring title by adverse possession and limitation. Even, the plaintiff has no case that he was in settled possession of the property or his predecessor was in settled possession of the property and subsequently ripened into a adverse title. No relief sought in the plaint to declare any adverse title over the property, no such pleading was raised in the plaint, **SA.No. 423 of 2002 8** no such case was advanced or brought into evidence. In Ext.A2 Will, nothing mentioned with respect to any possessory title or possessory right or even the details of the property in question. The plaintiff cannot under camouflage of an expression “any other property left out” claim right title and interest over the property scheduled in the plaint, if it otherwise not capable of showing title of the person concerned. All these decisions primarily dealing with the evidentiary value of entry in a revenue record, when there is disputed title except entry of revenue record pertaining to a Puduval property. The concurrent finding rendered by both the Trial Court and the First Appellate Court, hence deserves no interference. No substantial question of law much less any question of law brought to the notice of this Court. Hence, the appeal fails, dismissed. But without cost. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp