Palaniswami s/o Sankaralingam v. Tata Tea Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940** ## **SA.No. 791 of 1999** **AGAINST THE JUDGMENT AND DECREE DATED 25-03-1998 IN AS 15/1996 of SUB COURT,THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 28-11-1994 IN OS 261/1986 of MUNSIFF COURT, DEVIKULAM** **APPELLANT/APPELLANT IN A.S.NO.15/96 AND DEFENDANT IN O.S.NO.261/86:** **PALANISWAMI S/O SANKARALINGAM, SHOLAMALI DIVISION, PERIVARRAI ESTATE, K.D.H.VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT** **BY ADV. SRI.M.D.SASIKUMARAN SRI.K.S.HARIHARAPUTRAN SRI.DIPU JAMES SRI.SETHURAM DHARMAPALAN SRI.GEORGE MATHEW, SRI.A.G.SUNIL KUMAR SRI.BHANU THILAK** **RESPONDENT/RESPONDENT IN A.S.NO.15/96 AND PLAINTIFF IN O.S.NO.261/86:** **TATA TEA LTD REPRESENTED BY ITS SENIOR MANAGER, K.P.SUDARSANAN S/O K.P.IYANGAR, MUNNAR, KDH VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 791 of 1999 2 ## **JUDGMENT** The defendant in a suit for declaration of title and recovery of possession is the appellant. The suit property is a bit of land measuring 117.75 sq.mtrs. situated in survey No. 172 of Kannan Devan Hills Village (KDH Village). The case of the plaintiff is that the suit property belongs to them and that the defendant has trespassed upon the same and put up a shed therein on 17.08.1980. It is also the case of the plaintiff that the defendant who is running a shop in the shed put up by him in the suit property was though called upon to surrender the suit property, he has refused to accede to the demand made by the plaintiff. It is the further case of the plaintiff that subsequent to the encroachment, though the defendant managed to obtain a kuthakapattom grant in respect of the suit property misleading the competent authority that the suit property is a Government land, the grant in favour of the defendant was revoked later by the competent authority at the instance of the plaintiff on being convinced that the suit property belongs to the plaintiff. 2. The defendant contested the suit contending, _inter_ SA.No. 791 of 1999 3 _alia,_ that the suit property does not belong to the plaintiff and that it is a Government land. 3. An Advocate Commissioner was appointed in the suit at the instance of the plaintiff to locate and identify the suit property and the Advocate Commissioner identified the suit property with the help of the Taluk Surveyor. Based on the materials on record, the trial court found that the suit property is part of the property owned by the plaintiff as obtained by them in terms of Ext.A1 conveyance deed, and decreed the suit on that basis. Though the defendant took up the matter in appeal, the appellate court, on a re-appraisal of the materials on record, affirmed the decision of the trial court. The defendant who is aggrieved by the concurrent decisions of the courts below has thus come up in this second appeal. 4. Heard the learned counsel for the appellant as also the learned counsel for the respondent. 5. Ext.A3 is the order passed by the competent authority under the Kuthakapattom Rules, 1947 cancelling the grant made under the said Rules in favour of the defendant. It recites that the land covered by the grant is a portion of 7.35 acres of land in survey No.172, which belongs to the plaintiff. It also SA.No. 791 of 1999 4 recites that the said 7.35 acres of land was earlier identified as vested in the Government in terms of the provisions contained in the Kannan Devan Hills (Resumption of Lands) Act, 1971 and the same was returned to the plaintiff later in terms of an order passed by the Land Board. It further recites that there is no Puramboke/Government land in survey No.172 and the entire land in survey No.172 belongs to the plaintiff. It further recites that the grant in favour of the defendant under the Kuthakapattom Rules, 1947 was made by mistake. The defendant has no case that the suit property is not part of the property covered by the Kuthakapattom grant in his favour. Though the defendant challenged Ext.A3 order in O.S.No.216 of 1984 before the Munsiff Court, Devikulam and later withdrew the said the suit without prejudice to his right to institute a fresh suit on the same cause of action, he has not challenged the said order after the disposal of the said suit either by filing a fresh suit or by instituting any other proceedings. In other words, Ext.A3 order has become final. Ext.A7 is the certificate issued by the Tahsildar, Devikulam to the plaintiff certifying that the 7.35 acres of land in survey No. 172 is part of the property in the possession and enjoyment of the plaintiff. The Advocate Commissioner appointed in the suit has SA.No. 791 of 1999 5 identified the suit property with the aid of the Taluk Surveyor as one falling under Survey No.172. The Taluk Surveyor who assisted the Advocate Commissioner was examined in the suit as PW3. PW3 deposed that he identified the suit property as one falling under survey No. 172 based on the revenue and survey records. PW3 has also clarified in cross-examination that there is no Puramboke/Government land in the said survey number. It is based on the aforesaid materials that the courts below came to the conclusion that the suit property belongs to the plaintiff, and decreed the suit on that basis. I do not find any infirmity in the said conclusion concurrently arrived at by the courts below. 6. The learned counsel for the appellant, placing reliance on the decision of the Apex Court in **Union of India and others v. Vasavi Co-operative Housing Society Ltd and others** [(2014) 2 SCC 269], contended that in a suit of the instant nature, the plaintiff has to prove their title to get the decree sought for by them and the weakness of the defence cannot be a reason to hold title in favour of the plaintiff. It was pointed out by the counsel that the plaintiff has not established their title over the suit property by producing the original of their title deed. Placing reliance on the decisions of the Apex Court in **H.Siddiqui v.** SA.No. 791 of 1999 6 **A.Ramalingam** [(2011) 4 SCC 240] and **Ram Suresh Singh v. Prabhat Singh** [(2009) 6 SCC 681], the learned counsel also contended that the notarised copy of the title deed of the plaintiff marked in the proceedings as Ext.A1(a) ought not have been accepted by the courts below to hold title in favour of the plaintiff in respect of the suit property. Placing reliance on the decision of the Apex Court in **U.Sree v. U.Srinivas** [(2013) 2 SCC 114] and the decision of this Court in **Mathew K.M. v.Giji Mathew** [2017 (4) KHC 529 (DB)], the learned counsel also contended that secondary evidence could not have been given by the plaintiff in a case of this nature to establish title to the suit property. 7. It is unnecessary to go into the tall arguments raised by the learned counsel in a case of this nature. It is trite that an obligation is cast on the appellant in a second appeal filed under Section 100 of the Code to precisely state in the memorandum of appeal the substantial questions of law involved in the appeal and which the appellant proposes to urge, and the court is expected to issue notice to the respondent on one or more of such questions which the court considers as substantial questions of law arising for consideration in the matter. It is also trite that the scope of hearing of the second appeal shall be circumscribed by the questions so SA.No. 791 of 1999 7 ## formulated by the court. The following are the substantial questions of law formulated in the memorandum of second appeal: _“1. Were the courts below right in granting the reliefs to the plaintiff in a suit which necessary parties are not impleaded ?_ _2. Were the courts below right in accepting the Commission report in which support mentioned the extent of property and location of the PWD road and its poromboke.”_ It is not clear from the records as to whether this Court had issued notice on both the aforesaid questions. Assuming that this Court had issued notice on both the questions, it is seen that the contention based on which question No.1 is formulated as contained in the relevant ground raised in the memorandum is that the plaintiff ought to have impleaded the officials of the Public Works Department of the State as also the Tahsildar as parties to the suit. The learned counsel for the appellant did not urge this contention at the time of hearing. Further, it is seen that such a contention was not raised by the defendant in the suit nor seen pressed into service in the appeal preferred against the decision of the trial court. It is, therefore, unnecessary to consider the said question. 8. Coming to the second question, there cannot be any doubt that a pure question of law is a question for the resolution of which an investigation into the facts of the case is not required. SA.No. 791 of 1999 8 True, the questions of law to fall within the scope of Section 100 of the Code of Civil Procedure need not be pure questions of law always, but, the same, however, shall be substantial questions of law. Substantial questions of law are either questions of general public importance or questions which would directly or substantially affect the rights of parties (See **Sir Chunilal V. Mehta** v. **Century. Spinning and Manufacturing Co. Ltd** (AIR 1962 SC 1314)]. It is now settled for any doubt that an inference of fact from a document is a pure question of fact. Of course, the legal effect of the terms of a document is a question of law [See **Hero Vinoth (minor)** v. **Seshammal** (AIR 2006 SC 2234)]. As noted, question No.2 as framed is as to whether the courts below were justified in accepting the report of the Advocate Commissioner appointed in the suit. The contention raised in the grounds as regards the report of the Advocate Commissioner is that the same does not contain the necessary particulars for arriving at the conclusions arrived at in the report. In other words, the contention is that the inference made on factual aspects by the courts from the report of the Advocate Commissioner is incorrect. In the light of the decision referred to above, a question relating to the inference made by the court from the report of the Advocate SA.No. 791 of 1999 9 Commissioner cannot be regarded as a question of law falling within the scope of Section 100 of the Code of Civil Procedure. 9. As noted, the defendant has no case that the suit property is not the property covered by Ext.A3 order cancelling the Kuthakapattom grant in favour of the defendant. In Ext.A3, the competent authority under the Kuthakapattom grant has categorically found that the suit property belongs to the plaintiff. Ext.A3 has become final. In the circumstances, in the light of the said document, the defendant cannot dispute the title of the plaintiff over the suit property. As such, even assuming that the defendant had formulated the questions argued by the learned counsel, it is unnecessary to consider the said questions in this appeal. The second appeal, in the circumstances, is without merits and the same is liable to be dismissed and I do so. ## **Sd/-** ## **P.B.SURESH KUMAR** **SKS** **JUDGE**