Parvathy Amma and others (LRS of original plaintiff) v. Narayanan Maniyani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939** **SA.No. 384 of 1999 (D) -----------------------** **AGAINST THE JUDGMENT & DECREE DATED 18.3.1999 IN AS 117/1996 of SUB COURT, KASARAGOD** **AGAINST THE JUDGMENT & DECREE DATED 25-03-1996 IN OS 290/1993 of ADDITIONAL MUNSIFF, KASARAGOD** **LRS OF ORIGINAL PLAINTIFF IN OS.290/93/APPELLANTS 2,5,6,8& 9 IN AS.117/96/APPELLANTS IN SA:** **-----------------------------------------------------------** **1. PARVATHY AMMA, W/O. RAMACHANDRA BALLAL, RESIDING AT ADVALA BEEDU, BELLUR VILLAGE, VIA.MULLERIA, KASARAGOD TALUK.** ***2. SREEDHARA BALLAL, S/O. PARVATHI AMMA, RESIDING AT ADVALA BEEDU, BELLUR VILLAGE, VIA.MULLERIA, KASARAGOD TALUK.* (EXPIRED LRS IMPLEADED)** **3. THYAGARAAJA BALLAL, S/O. PARVATHI AMMA, C-4-G-157 B NEW DELHI, NOW RESIDING AT ADVALA BEEDU, BELLUR VILLAGE,KASARAGOD TALUK.** **4. GEETHALATHA, D/O. PARVATHI AMMA, W/O. MARIYAYYA BALLAL, SUNNADA BEEDU, CHIPPUR VILLAGE AND POST, VIA. UPPALA, KASARAGOD TALUK.** **5. SEETHALAKSHMI, W/O. BALAKRISHNA BALLAL, RESIDING AT KARADKA HOUSE, KARADKA VILLAGE, KASARAGOD.** **ADDL.APPELLANTS IMPLEADED:** **ADDL.A6 SARADA, W/O. SREEDHARA BALLAL, RESIDING AT ADVALA VEEDU, BELLUR VILLAGE, VIA MULLARIA, KASARAGOD TALUK.** **ADDL.A7. VANDANA, D/O.SREEDHARA BALLAL, RESIDING AT ADVALA VEEDU, BELLUR VILLAGE, VIA MULLARIA, KASARAGOD TALUK.** **ADDL.A8 VYSALI, D/O. SREEDHARA BALLAL, RESIDING AT ADVALA VEEDU, BELLUR VILLAGE, VIA MULLARIA, KASARAGOD TALUK.** **THE LRS OF THE DECEASED SECOND APPELLANT IMPLEADED AS ADDL.APPELLANTS 6 TO 8 AS PER ORDER DATED 8.1.13 IN IA.747/06** **BY ADV. SRI.K.I.MAYANKUTTY MATHER** **DEFENDANT IN OS.290/93 AND HEIRS OF ORIGINAL PLAINTIFF/RESPONDENT IN AS.117/96 AND APPELLANTS 3, 4 AND 7/RESPONDENTS:** **---------------------------------------------------** **1.NARAYANAN MANIYANI, S/O. CHANIYA MANIYANI, ADVALA, BELLUR, KASARAGOD.** **2. VASANTHI AMMA, D/O. PARVATHI AMMA, W/O. MANIYAYYA BALLALLLLL, PANJA BEEDU, KARIKALA POST, SULLIA TALUK, D.K. KARNATAKA STATE.** ***3. LEELAVATHI AMMA, D/O. PARVATHI AMMA, W/O. KRISHNAYYA BALLAL, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K KARNATAKA STATE (DIED LRS IMPLEADED)** **4. NIRMALA KUMARI, D/O.PARVATHI AMMA, W/O. RANGAYYA BALLAL, RESIDING AT BEDRE HOUSE, KASARAGOD TALUK, P.O VIDYANAGAR, KASARAGOD.** ## **ADDITIONAL RESPONDENTS IMPLEADED:** **ADDL.R5. KRISHNAYYA, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K. KARNATAKA STATE.** **ADDL.R6. SREEKANTHAA, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K. KARNATAKA STATE.** **ADDL.R7. DINESH, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K. KARNATAKA STATE.** **ADDL.R8. NALINI, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K. KARNATAKA STATE.** **ADDL.R9. GOPINATH, RESIDING AT KARADKA HOUSE, HARADY PUTTUR D.K. KARNATAKA STATE.** **THE LRS OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 5 TO 9; AS PER ORDER DATED 8.1.13 IN CMP.NO.2384/2002.** **BY ADV. SRI.M.HARISHARMA BY ADV. SRI.JOJI VARGHESE BY ADV. SRI.D.KRISHNA PRASAD R1 BY ADV. SRI.N.P.SAMUEL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ....................................... S.A.No.384 of 1999 ........................................ Dated this the 10[th] day of August, 2017. ## **JUDGMENT** The legal representatives of the plaintiff in OS.No.290/1993 of Munsiff Court, Kasaragod are the appellants herein. The suit was originally filed by one A.B.Laxmana Ballal for injunction restraining the defendant from trespassing into the plaint schedule property and interfering with the right of peaceful enjoyment of the property by the plaintiff with the following allegations: Plant A schedule property belonged to the original plaintiff and he was in possession and enjoyment of the same by doing cultivation and taking income. The plaintiff's sister Parthavathy Amma had a fractional right in plaint A schedule property. Plaint item No.1 is a nilam and item No.2 though it was described as nilam, it is a vacant land and item No.3 is a dry land containing cashew trees and other trees. Prior to oral partition, the plaintiff's sister Parvathy Amma was receiving levy notices in respect of item No.1 of plaint A schedule property and she was delivering paddy pursuant to the said levy notices. The properties are in patta No.143 of Belur village which stands in the name of the plaintiff and he was paying land revenue. The defendant was residing in the house situated in Sy.No.63/3 of Belur village which belongs to Vasanthi, who is the plaintiff's sister's daughter. RS.No.67/2C which is a government land which has been in the possession of S.A.No.384 of 1999 2 the original plaintiff and he effected vast and value of improvements in the said land. The defendant with the ulterior motive, had applied for assignment of RS.No.67/2C on knowing fully well that the plaintiff had been in possession of the same. When he came to know about the same, he filed an objection to the same and that was pending. From that day onwards, he was in enmical terms. On 25.5.1993 when the plaintiff went to the property, he found that the defendant was trying to trespass into the property and taking income from the property. On seeing the plaintiff, he left the place. The original plaintiff apprehended further trespass. So the present suit was filed for injunction. 2. The defendant entered appearance and filed written statement contending as follows: The suit was not maintainable. The plaint schedule properties were in the direct possession and enjoyment of the defendant as cultivating tenant for the last several years. Originally the defendant's brother Appayya Maniyani obtained land having an extent of 1.13 acres comprised in Sy.No.67/3, an extent of 77 cents in Sy.No.68/3, an extent of 30 cents in Sy.No.71/2 and an extent of 80 cents in Sy.No.71/3 on lease hold right from the plaintiff and his sister Parvathy Amma in the year 1950 with the stipulation to pay annual rental of 27 Muras of paddy. The said S.A.No.384 of 1999 3 Ayyappa Maniyani had effected valuable improvements and he was cultivating the land and giving rent to the landlord till 1963. Subsequent to that, the entire properties were put in the possession of the defendant and from that day onwards, he was in possession of the properties. During 1962 there was an understanding between the landlord and the defendant that they would file a joint statement and the defendant had agreed to surrender lands in Sy.No.71/2 and Sy.No.68/2 to the landlord. But the same could not be done. The defendant was in possession of the property and the plaintiff had manipulated the documents in respect of Sy.No.71/3. The extent of 80 cents was included in the ration card of the defendant in spite of the protest raised by the landlord. In O.S.No.36/1959, a suit filed by the plaintiff's sister before Sub Court, Kasaragod, it was admitted that Ayyappa Manayani was in possession of the property. The rent suit filed against the tenant was also decreed against him in respect of the suit properties. The village authorities were also restrained from receiving the basic tax from the defendant and his brother by misusing official capacity of the plaintiff. They were paying the annual rent. The defendant was also in possession of the government land adjacent to the lease hold properties and the assignment application was pending. Due to the pressure of the S.A.No.384 of 1999 4 plaintiff with the Land Acquisition Officials, the same was not disposed so far. The story of trespass was not correct. Since the original plaintiff was not in possession of the property, he was not entitled for any relief and he prayed for dismissal of the suit. 3. On the basis of the pleadings, following issues were framed by the trial court: - i. Whether the plaintiff is in possession of plaint A schedule - properties? ii. Whether the cause of action alleged is true? iii. Whether the defendant is a cultivating tenant in respect of plaint A schedule property? iv. Reliefs and costs? 4. The original plaintiff was examined as PW1 and Exts.A1 to A10 were marked on his side. The defendant was examined as DW1 and Exts.B1 and B2 were marked on his side. After considering the evidence on record and the documents, the trial court came to the conclusion that the plaintiff has failed to prove possession of the property and the documents produced alone are not sufficient to come to the conclusion that the plaintiff was in exclusive possession of the property and dismissed the suit. Though an application has been filed for referring the matter for land tribunal, that was dismissed by that court as per order S.A.No.384 of 1999 5 dated 11.10.1995. It is not known as to what happened to that order thereafter. Dissatisfied with the same, the plaintiff filed appeal before the District Court, Kasaragod which was made over to Sub Court where it was numbered as AS.No.117/1996. During the pendency of the appeal, the original plaintiff died and present appellants were impleaded as his legal heirs in the first appellate court. After considering the evidence on record, the appellate court also came to the conclusion that the property was not identified and without identifying the property, it was not possible to grant a decree as claimed and dismissed the suit. Aggrieved by the same the present second appeal has been filed by appellants 2, 5, 6, 8 and 9 in AS.No.117/1996 showing other appellants as respondents 2 to 4. During the pendency of the appeal, 2[nd] appellant and 3[rd] respondent died and additional respondents 5 to 9 were impleaded as legal representatives of the third respondent as per order in C.M.P.No.2384/2002 and additional appellants 6 to 8 were impleaded as legal representatives of deceased second appellant as per order in IA.No.747/2006. At the time when the appeal was admitted, it appears that this Court had accepted substantial questions of law raised in the Appeal Memorandum as the substantial questions of law arose for consideration, which reads as follows” 6 S.A.No.384 of 1999 i. Where the courts below justified in dismissing the suit in its entirety when even the defendant lay no claim in respect of items 2 and 3 of the plaint schedule? ii. In case of rival claims for possession, where the defendant trace his alleged possession to an oral lease under the admitted title of the plaintiff,is not the burden to prove the possession on the defendant, on the principle that possession follows title? iii. Even if the initial onus is on the plaintiff to prove possession, is not that onus discharged by the documentary evidence afforded by Ext.A1 to A5 and A8 and the evidence given by PW1? iv. Where the courts below justified under the circumstances in dismissing the suit of the plaintiff? 5. Heard Sri. V.V.Asokan, learned senior counsel appearing for the appellants and Sri.Krishnaprasad, learned counsel appearing for the 1st respondent. 6. Learned counsel appearing for the appellants submitted that the court below was not justified in dismissing the suit. There is an admission on the part of the defendant that the property belonged to the original plaintiff and his sister and when the title to the property has been proved, then there is a presumption that the title holder is in possession of the property and the court below S.A.No.384 of 1999 7 ought to have believed the evidence of PW1. Further the identity is not in dispute. There is inconsistencies in the evidence of the defendant regarding the manner in which he came into possession of the property. Under such circumstances, the court below should not have dismissed the suit. 7. On the other hand, learned counsel appearing for the 1[st] respondent submitted that it was admitted by PW1 in his evidence that earlier her sister has filed a suit as OS.No.36/1959 where the defendant and his brother Appayya Manayani were made parties and it was also admitted by him that later that suit was compromised but there was no partition as such effected. The oral partition claimed was not proved. Further the plaintiff had shown the property in his possession in respect of which the proceedings were pending before the Land Assignment Authorities. Without identifying the property, no injunction could have been granted. So the courts below were perfectly justified in dismissing the suit. 8. The case of the original plaintiff in the plaint was that the plaint schedule property belonged to him and his sister Parvathy Amma who is the first appellant herein and thereafter there was an oral partition in the year 1976. By virtue of the oral partition, these properties were allotted to him. Thereafter he was in possession of the property. The defendant had applied for S.A.No.384 of 1999 8 assignment of the government land which was also in the possession of the original plaintiff in Sy.No.67/2C and when he came to know about the same, he objected the same. On account of that enmity, he tried to trespass into the property. That prompted him to file the suit. 9. But the case of the defendant was that his brother Appaya Manayani was a tenant under the plaintiff and his sister from 1960 onwards and till 1962 he was in possession of the property and in 1962 his brother had entrusted the properties to him and he was cultivating the property and there was an understanding between the landlord and himself that a joint petition for purchase could be filed before the Land Tribunal and he had to surrender some portion of the property. But due to the influence of the plaintiff, the revenue officials did not accept that proposal and there was some enmity between them and he filed an application for assignment of government land and the plaintiff objected the same and those petitions were also pending. So under such circumstances, the original plaintiff was not entitled to get injunction as prayed for. 10. It is true that the defendant was admitting title of the plaintiff over the plaint schedule property and according to him, his brother Appayya Maniyani was a tenant in respect of certain lands S.A.No.384 of 1999 9 namely 1.13 acres in Sy.No.67/3, 77 cents in Sy.No.68/3, 30 cents in Sy.No.71/2 and 80 cents in Sy.No.71/3. The plaint schedule properties also relates to these items. The original plaintiff was claiming injunction in respect of 80 cents in Sy.No.71/3, 4 cents in Sy.No.70/4A and 1 acre and 38 cents in respect of 67/2B. It is also seen from the documents produced that out of 80 cents in Sy.No.71/3, by virtue of Ext.A7, he obtained 39 cents by way of a court auction. Further except the oral testimony of PW1, there was no other evidence adduced to prove the oral partition. Further in the cross examination, he had admitted that her sister field OS.No.39/1959 for partition except the property covered by Ext.A7 ie. 39 cents in Sy.No.71/3 and also in respect of item No.2 of plaint schedule property. It is also admitted byhim that Appayya Manayani and present defendant were made parties to that suit. None of the parties have produced those documents. It is also admitted by PW1 that he was also in possession of government land in Sy.No.67/2C in respect of which, the defendant also field an application for assignment and that was pending with the authorities. So there is some dispute regarding the identity regarding who is in possession of that property. Further, no commission was taken out to identity the plaint schedule properties and also ascertaining who has been in possession of the property S.A.No.384 of 1999 10 etc as on the date of suit. Further it is also admitted by PW1 that the government land is also abetting to this property. Further Ext.A7 is in respect of 39 cents which is part of item No.1. That was also not identified. 11. Merely because the defendant was not able to prove his case will not ipso facto entitle the plaintiff to get a decree for injunction unless he is able to establish his possession independently. Further oral partition as such has not been established. The first appellant now in party array is his sister and it was she who had filed O.S.No.39/1959 before the Sub Court, Kasaragod for partition, which according to the original plaintiff was compromised. So she would be able to explain under what circumstances the compromise was effected and why the defendant and his brother were shown as parties in the suit etc. But she was not examined. 12. However the 1[st] appellant is also no more. But this Court feels that an opportunity has to be given to the parties to adduce further evidence regarding this aspect and also an opportunity has to be given to the appellants to identify the property as there is dispute regarding the identity of the property and without proper identification, no decree for injunction can be granted as has been held in the decision reported in _**Jose Lalichan v. Augustine**_ S.A.No.384 of 1999 11 (2011(4) KHC 847). 13. Learned counsel for the contesting 1[st] respondent submittedthat there is no prayer for appointment of a Commissioner in the lower court and no steps have been taken at that stage and after a lapse of so many years, there is no necessity to give an opportunity to the appellants to prove this fact and they can file a fresh suit with proper relief. It may be mentioned here that his brother was in possession of the property as lessee and only subsequently he had claimed possession and title in respect of some other portion also, which is part of the plaint schedule property. The claim was objected by the original plaintiff before the authorities where an application for assignment is pending. So under such circumstances, there is no merit in the submission made by the counsel for the 1[st] respondent that there is no necessity to remand the matter for this purpose. So under such circumstances, this Court feels that the decree and judgment passed by the court below confirmed by the appellant court have to be set aside and the matter has to be remitted to the court below for fresh disposal in accordance with law. So, the second appeal is allowed and the decree and judgment passed by the court below dismissing the suit and confirmed by the appellate court are set aside and the matter is S.A.No.384 of 1999 12 remitted to the court below for fresh consideration in accordance with law. The court below is directed to give an opportunity to the parties to take out a commission to identify the property with reference to their title deeds and also, if any amendment is required including prayer for recovery of possession, and if such an application is filed, in order to avoid multiplicity of proceedings that may also be considered by the court below and pass appropriate orders in accordance with law. Parties are at liberty to adduce further evidence in order to explain discrepancy regarding the nature of possession claimed in OS.No.39/1959 of Sub Court, Kasaragod and what transpired thereafter as well. Parties are also at liberty to produce further documents, if any required, to substantiate their case. The parties are directed to appear before the court below on 18.9.2017. Considering the fact that the suit is of the year 1993, the Munsiff, Kasaragod is directed to take all earnest attempts to expedite the disposal of the case, at any rate, within 9 months from the date of receipt of a copy of this judgment or date of appearance of the parties, whichever is later. Considering the circumstances of the case, the parties are directed to bear their respective costs in the appeal. Registry is directed to communicate a copy of this judgment along with the back records to the court below immediately. S.A.No.384 of 1999 13 Interim order, if any, passed are hereby vacated and all other interim applications are also dismissed. Sd/- **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge cl S.A.No.384 of 1999 14 **K. RAMAKRISHNAN, J.** ........................... S.A.No.384 of 1999 .............................. 10[th ] August, 2017. **JUDGMENT**