Omana v. Sukumaran and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944** ## **RSA NO.1079 OF 2006** ## **AGAINST THE JUDGMENT IN AS 107/1999 OF ADDITIONAL DISTRICT COURT,** ## **PATHANAMTHITTA** ## **OS 60/1996 OF MUNSIFF COURT, RANNY** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** OMANA, AGED 47 YEARS, D/O.KOCHIKA, THYKKOTTATHIL HOUSE, VAYYATTUPUZHA, CHITTARSEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. BY ADV SRI.JOSE PALLATTUKARAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 SUKUMARAN, S/O VELUTHAKUNJU, VAZHATHARA PUTHEN VEEDU, VAYYATTUPUZHA, CHITTAR-SEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT (DIED). 2 PONNAMMA, AGED ABOUT 55 YEARS, W/O.LATE SUKUMARAN, VAZHATHARA PUTHEN VEEDU, VAYYATTUPUZHA, CHITTAR-SEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. 3 AMBILY, D/O.PONNAMMA, AGED ABOUT 34 YEARS, VAZHATHARA PUTHEN VEEDU, VAYYATTUPUZHA, CHITTAR-SEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. 4 SATI, D/O.PONNAMMA, AGED ABOUT 34 YEARS, VAZHATHARA PUTHEN VEEDU, VAYYATTUPUZHA, CHITTAR- SEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. **RSA NO. 1079 OF 2006 -2-** 5 INDIRA, D/O. THANKAMMA, AGED ABOUT 30 YEARS, RESIDING AT INDIRA BHAVANAM, NEAR CHITTAR POLICE STATION, CHITTAR-SEETHATHODU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. S. A. No.1079 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 27[th] day of October, 2022** ## **J U D G M E N T** The suit for declaration of title and recovery of possession was dismissed concurrently by the courts. The plaintiff is in appeal. 2. The plaint schedule property has an extent of 2.100 cents with a two storied building. According to the plaintiff, she got assignment of the land as per Ext.A1 Patta issued in LA 8/1978. She constructed a building thereon. The defendant is her sister's husband. He was permitted to conduct business in one of the rooms in the building. The defendant forcefully evicted the plaintiff from the plaint schedule property. Therefore, the suit is filed for recovery of possession on the strength of title. 3. The defendant contended that the building in the property was constructed by him, and thus denied the **R. S. A. No.1079 of 2006** -: 2 :- title of the plaintiff. 4. The trial court found that the plaintiff has title over the property as per Ext.A1 patta. However, it was held that there is no material to find that the plaintiff had constructed the building. Accordingly, decree for recovery was granted in respect of the land alone. The relief in respect of the building was declined. The decree was affirmed in appeal. 5. Heard learned counsel on either sides on the following substantial question of law :- “ _When the defendant claims ownership over a building situated in the land belonging to the plaintiff, on_ _whom does the burden of proof regarding title over the building lie ?”_ 6. Ext.A1 is the Land Assignment Patta in favour of the plaintiff with respect to the property. The trial court has declared the title of the plaintiff over the land under Ext.A1. With regard to the building thereon, it was found that the defendant was conducting business **R. S. A. No.1079 of 2006** -: 3 :- in the building. Since the plaintiff was just of the age of majority when the Patta was issued and she did not have any job, the courts found that the plaintiff has not established her title over the building. It is true that the principle, “what is affixed to the soil belong to the soil” does not apply in India. In _**Chellappan Nadar v. Krishnan Nair 1963 KHC 192,**_ this Court held thus :- _“7. ….. In other words, the rule of English law that, whatever is attached to the soil is part thereof and necessarily belongs to the owner of the land is not the law in India. In England, anything built or growing on land becomes part of the soil and automatically vests in the owner of the land. But, in India, a building or other fixture can be owned separately from the land on which it stands and can be the subject of a separate transfer. Therefore, it need not necessarily belong to the owner of the land although, as a matter of fact, in the generality of cases, it does. …..”_ _**(** See_ _**Patnaik & Company v. State of Orissa AIR 1965 SC 1655** ,_ _**Kunjulekshmi v. Krishnan Unnithan 1992 (1) KLJ 415, Gouri and Ors. v.**_ **R. S. A. No.1079 of 2006** -: 4 :- _**Xavier and Ors. 2012 (3) KHC 317** )_ . When the defendant claims title over a building that is situated in the property of the plaintiff, it would be for the defendant to prove that he has title over the building. A person may permit another to construct a building upon his property. Whether title over the building was to be with the person who expended the money or the owner of the land, is a matter which the arrangement between the parties may determine. Substantial question of law is answered accordingly. 7. In the case at hand, except for the mere fact that the defendant was conducting business in the building, there is nothing to show that he constructed the building and that he is the owner. His conducting business in the building would not lead to a conclusion that he is the owner of the building. The relationship between the parties is also of significance; the defendant is none other than the plaintiff's sister's husband. Ext.A3 and Ext.A3(a) are building tax receipts **R. S. A. No.1079 of 2006** -: 5 :- for the period prior to the suit, produced by the plaintiff. The defendant has also produced a building tax receipt Ext.B5, which is prior to the suit. 8. Before this Court, the appellant-plaintiff has filed IA 2/2020 under Order XLI Rule 27 of the Code of Civil Procedure producing therewith a certified copy of the relevant pages of building tax assessment register of Chittar Grama Panchayat. It is produced to show that the building in question is assessed in the name of the appellant as the owner of the building. In the affidavit filed in support of the application it is stated that, though the document was entrusted with the counsel in the courts below, for some reason the document was not produced. The first appellate court in its judgment has specifically pointed out that, even the property tax assessment register maintained by the local body was not produced to prove the title over the building. The affidavit states that, the document was misplaced by the counsel and that the same was traced out during the **R. S. A. No.1079 of 2006** -: 6 :- course of the shifting of his residence. On receipt of the said document from the counsel, the same is produced before this Court, it is stated. The acceptance of the document is opposed by the respondents pointing out that, though in the affidavit the appellant has stated that the certified copy was entrusted with the counsel in the courts below for production, as is revealed from the endorsement in the additional document, the certified copy was applied for only on 15.01.2001 which is after the trial court judgment. I feel that the affidavit is to be understood as an affirmation that the certified copy was obtained and entrusted to the counsel appearing on his behalf in the courts below which was not produced by him. The document was obtained during the pendency of the first appeal but the counsel failed to produce the same. It need not be read in a manner to understand that the document was entrusted to the counsel even during the trial stage. As noticed supra, there is hardly any evidence from both sides regarding **R. S. A. No.1079 of 2006** -: 7 :- the title over the building. The document produced along with the IA is necessary for a just and proper disposal of the case. The document is liable to be accepted in evidence. IA 2/2020 is accordingly allowed. The document is admitted in evidence but, subject to proof. 9. The evidence on record being insufficient to decide on the issue of title over the building and this Court having admitted the additional document in evidence subject to proof, necessarily the suit has to go back for fresh disposal. However, the issue of title over the land is not to be reopened. As held by the courts, the plaintiff has title over the land described in the plaint schedule property. The remand is to be confined to the issue of title over the building. 10. Resultantly, the Regular Second Appeal is allowed. The decree and judgment of the courts below in so far as it relates to the title over the building described in the plaint schedule property is set aside. The matter is remanded back to the trial court for fresh **R. S. A. No.1079 of 2006** -: 8 :- decision on the issue. Parties shall be permitted to adduce further evidence. Every endeavor shall be made by the court to dispose of the suit expeditiously. Parties to appear before the trial court on 28.11.2022. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge