Pathumuthumma (Died, Legal Heirs Impleaded) and Ajimnisa v. Khaja Moideen S/o Late Ibrahim Rowther and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941** **SA.No. 594 of 2002** **AGAINST THE DECREE AND JUDGMENT IN AS 155/1993 of II ADDITIONAL DISTRICT COURT,PALAKKAD DATED 23-01-2001** **AGAINST THE DECREE AND JUDGMENT IN OS 76/1989 of MUNSIFF COURT, CHITTUR DATED 25-06-1993** ## **APPELLANT/APPELLANT/DEFENDANT:** **1 PATHUMUTHUMMA (DIED, LEGAL HEIRS IMPLEADED) D/O.MOHAMMED KHANI ROWTHER, PALLASSANA, CHITTUR TALUK.** **ADDITIONAL APPELLANT** **AJIMNISA, D/O.PATHUMMA, ATHIKURISSI, KULAMBU, VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT.** **ADDL.2ND APPELLANT IMPLEADED AS THE LEGAL HEIR OF DECEASED SOLE APPELLANT AS PER ORDER DATED 06.08.2009 IN IA.1749/2009 IN SA.** ## **BY ADV. SRI.P.R.VENKETESH** ## **RESPONDENTS/RESPONDENTS/SUPPL.PLAINTIFFS 3 TO 10:** **1 KHAJA MOIDEEN S/O LATE P.K.IBRAHIM ROWTHER, THIMBIKKODE,, PALLASSANA, AMSOM, CHITTUR TALUK. 2 SAHABAR SADIQUE @ AKI S/O DO DO. ( DIED, LEGAL HEIRS IMPLEADED) 3 MUMTHAS, D/O. DO. DO. 4 MUSTHALIBANU D/O. DO. DO. 5 POUJAMA D/O. DO. DO.** S.A.NO.594/2002 2 - **6 MEHARUNNEESSA D/O DO. DO.** - **7 LAILA D/O. DO. DO.** - **8 SAJINA D/O. DO. DO.** ## **ADDITIONAL RESPONDENTS** - **9 REHMATHNISSA,** - **W/O.LATE SAHABAR SADIQUE,THIMBIKKODE, PALLASSENA AMSOM, CHITTUR TALUK.** - **10 AMBIS,** - **S/O.LATE SAHABAR SADIQUE,THIMBIKKODE, PALLASSENA AMSOM, CHITTUR TALUK.** - **11 REJINA,** **D/O.LATE SAHABAR SADIQUE,THIMBIKKODE, PALLASSENA AMSOM, CHITTUR TALUK.** - **12 SAMEENA,** - **D/O.LATE SAHABAR SADIQUE,THIMBIKKODE, PALLASSENA AMSOM, CHITTUR TALUK.** - **13 HAZEENA,** **D/O.LATE SAHABAR SADIQUE,THIMBIKKODE, PALLASSENA AMSOM, CHITTUR TALUK.** **(THE LEGAL REPRESENTATIVES OF DECEASED R2 ARE IMPLEADED AS ADDL.RESPONDENTS 9 TO 13 AS PER ORDER DATED 09.04.2019 IN IA.1/2019).** **BY ADVS. SRI.P.B.KRISHNAN SRI.S.V.BALAKRISHNA IYER (SR.)** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.A.NO.594/2002 3 ## **CR** ## **JUDGMENT** This appeal is by the defendant against the judgment and decree of both the trial court and the first appellate court in a suit for injunction. Cross objection was also preferred by the plaintiff. 2. The subject matter of the suit is the trees standing on a landed property scheduled in the plaint. The plaintiff is none else, the brother-in-law of the defendant and the son-in-law of defendant's mother. The plaintiff claims that the trees standing on the property covered by a gift deed of the year 1970 was sold to him by the mother-in-law prior to the execution of the gift deed. The sale of trees made mentioned in the gift deed and the gift was given to the defendant, subject to the said sale. Hence the suit for permanent prohibitory injunction, restraining the defendant from obstructing the cut and removal of those trees from the property. 3. The defendant contended that the suit is barred by limitation. Some of the trees situated in the property were cut S.A.NO.594/2002 4 and removed in the year 1970 by the plaintiff in accordance with the alleged sale. The cut and removal of the remaining trees was objected which has resulted in a suit by the plaintiff against the sister of the defendant in O.S.No.460/1970. The present suit was filed after the lapse of more than 18 years. There is no substantial prayer in the suit to adjudicate the disputed title over the trees situated in the property. 4. Both the trial court and the first appellate court rejected the contention of the defendant including the question of limitation and decreed the suit concurrently, but with a modification by the first appellate court. Aggrieved by the said decree and judgment, the defendant came up with this appeal. 5. Besides the substantial questions which were framed at the time of admission of appeal, the following questions also came up for consideration: 1) Whether the trial court and the first appellate court are justified in holding that the suit is not barred by limitation ? 2) What is the nature of subject matter of the sale ? Whether it would satisfy the term “standing timbers” within the meaning of S.A.NO.594/2002 5 “movable property” or “growing trees” within the meaning of “immovable property”, and whether it requires registration? What would be the legal position, when the subject matter found to be both “standing timbers” and “growing trees” ? 6. There is no much dispute with respect to the fact that the mother-in-law Nagur Umma had given the trees situated in the property to her son-in-law, the plaintiff for consideration, the amount expended by him in connection with her treatment. It has find a place in Ext.A1 gift deed dated 21.8.1970, wherein the donor has specified the existence of sale with respect to the trees standing on the property to the plaintiff. Admittedly some of the trees were cut and removed in the year 1970. The dispute is pertaining to the trees which were not cut and removed and allowed to be grown for a long period of 18 years and the plaintiff claims that the trees which were not cut and removed form part of the sale and that he is entitled to cut and remove the same. 7. The definition given to the expression “movable property” and “immovable property” under various enactments assumes importance at this juncture. Section 3 of Transfer of S.A.NO.594/2002 6 Property Act defines “immovable property” as follows : “ immovable property” does not include _**standing timber, growing crops or grass**_ **”** (emphasis supplied) But the expression “movable property” is not defined anywhere in the Transfer of Property Act. The expression “Immovable property” also defined under Section 2(6) of the Registration Act, besides the definition given to “movable property” under Section 2(9) which read as follows : 2(6) - “immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, _**but not standing timber, growing crops or grass** ”_ 2(9) - “movable property” includes _**standing timber, growing crops and grass**_ , fruit upon and juice in trees, and property of every other description, except immovable property” (emphasis supplied) 8. The expression “immovable property” is also defined under Section 3(26) of the General Clauses Act as under : 3(26) - “immovable property” shall include land, benefits to arise out of land, and things attached to the S.A.NO.594/2002 7 earth, or permanently fastened to anything attached to the earth” 9. Section 2(6) of the Registration Act expressly defines the term “immovable property” in an exhaustive manner inclusive of land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries and any other benefit arising out of land inclusive of things attached to earth, permanently fastened to anything which is attached to earth, but excluding standing timber, growing crops or grass. But Transfer of Property Act does not define the term “immovable property”, beyond saying that it does not include “standing timber, growing crops or grass”. The expression “standing timber” not defined anywhere in the said enactments, but the difference in the expression “standing timber” has to be understood in relation to the expression “growing tree” as growing tree not excluded from the expression “immovable property”. So the question to be addressed is whether the subject matter of the sale would constitute standing timbers or growing trees or it would constitute both standing timbers and growing trees. 10. The difference in the expression “standing timber” and “growing tree” lies on the question of stoppage of process of S.A.NO.594/2002 8 vegetation and nourishment for further growth of the tree. The expression “standing timber” has to be understood in the sense a tree which has attained stoppage of process of vegetation and nourishment for further growth and the distinction principally lies on the question as to whether the process of vegetation was stopped or not and whether the parties have considered the same as stopped. If the answer is affirmative, it would fall under the expression 'standing timber', though there is scope for nourishment to the tree for a reasonable period till it was cut and removed, otherwise, it would be a growing tree within the meaning of “immovable property”. Further when the parties have considered the tree as the one which has attained stoppage of process of vegetation, it would come under the ambit of 'movable property' though the parties have agreed to cut and remove the same within a reasonable time and there is scope for further nourishment till that time. 11. The question was elaborately considered by the Apex Court in reference to the various definitions given to the expression “movable property” and “immovable property” under the various enactments in **Smt.Shanthabai v. State of Bombay and others (AIR 1958 SC 532)** , wherein the Apex S.A.NO.594/2002 9 Court has laid down the principle and the test which is available to determine whether the property would come under the ambit of 'movable property' or 'immovable property'. The relevant portions of paragraphs 30 and 36 of the said judgment are extracted below for reference : “30. ------ _Therefore “standing timber” must be a tree that is in a state fit for these purposes and, further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil.”_ _“36. The result is that, though such trees as can be regarded as standing timber at the date of the document, both because of their size and girth and also because of the intention to fell at an early date, would be movable property for the purposes of the Transfer of Property and Registration Acts, the remaining trees that are also covered by the grant will be immovable property, and as the total value is Rs. 26,000, the deed requires registration. ---------”_ 12. In the instant case, the agreement was entered into prior to the execution of Ext.A1 gift deed. The suit was filed in S.A.NO.594/2002 10 the year 1989 after the lapse of somewhat 18 years. It is an admitted case of both the parties that as per the sale, some of the trees were cut and removed in the year 1970 itself by the plaintiff and the remaining trees were allowed to be grown and no action was taken to cut and remove the remaining trees within a reasonable time. In fact, it was kept for further growth for a long period of 18 years and the suit was filed only after 18 years. This would show that the trees which were not cut and removed were allowed to grow further by taking nourishment and there is no stoppage of process of vegetation for a long period of more than 18 years. The plaintiff did not have a case that the remaining trees are having the value less than Rs.100/-. If that be so, sale could be effected only by way of a registered document as mandated under Section 17 of the Registration Act. The trees which were not cut and removed would not constitute “standing timbers”, but would come under the ambit of “growing trees” within the meaning of “immovable property” as on the date of sale in the year 1970. There was no stoppage of process of vegetation or further growth within a reasonable time, but the same were allowed to grow further for a long period of 18 years which would satisfy the ingredients which constitute the S.A.NO.594/2002 11 expression “immovable property”. But the fact that some of the trees were cut and removed just after the sale in the year 1970 would show its stoppage of process of vegetation and further growth by taking nourishment or that the parties to the sale had agreed to treat the same as “standing timbers” having attained stoppage of further growth and process of vegetation, though it may take nourishment for a reasonable time till it was cut and removed. The sale in respect of the trees cut and removed, hence requires no registration, but in so far as “standing trees” which were not cut and removed and allowed to grow further for a long period of 18 years can only be an “immovable property” as defined under the various enactments referred above as there was no stoppage of process of vegetation and further growth, hence that part of sale pertaining to growing trees requires registration. 13. Thus trees which were not attained stoppage of process of vegetation and further growth are not “standing timber” as defined under Section 2(6) of the Registration Act, 1908. The principle laid down by the Apex Court in **Shantabai's** case (supra) squarely applicable and hence it cannot be brought under the purview of 'movable property'. S.A.NO.594/2002 12 14. Regarding the question of limitation, it was submitted by the learned senior counsel Sri.S.V.Balakrishna Iyer that proper Article to be applied is Articles 68 and 69 of the Limitation Act. Both are dealing with specific movable property. Article 68 would come into play when there is a suit for specific movable property lost by theft, dishonest misappropriation or by conversion and the time began to run from the date of notice to the plaintiff regarding the identity of person who possess it. Article 69 would come into play when specific movable property wrongfully taken. An obstruction was created in the year 1970 which has resulted in initiation of suit in O.S.No.460/1970 and the three year period began to run from the date of obstruction which amounts to wrongfully retaining possession of property, but no suit was brought up within three years. But it has no much relevance as the property involved in the instant suit is not a specific movable property, but an immovable property, being growing trees. As such Articles 68 or 69 will not have any application in the instant case. 15. The Apex Court had applied the very same principle in **Shantabai's** case (supra) in paragraph 36 by holding that once the property fall under the ambit of immovable property S.A.NO.594/2002 13 having the value of Rs.100/- or more, it requires registration. An unregistered document will not pass any title over the property and as such no decree can be granted. There is no substantial prayer in the suit for declaring the title over the trees which were not cut and removed based on the alleged sale and a mere injunction suit without substantial prayer will not stand. Hence I have no hesitation to set aside the decree granted by both the trial court and the first appellate court. The suit is only to be dismissed, but without costs. I do so. The appeal is allowed. The decree and judgment of both the trial court and the first appellate court are set aside. The suit is dismissed. The Cross Objection is dismissed accordingly. No order as to costs of appeal. ## **Sd/-** ## **P.SOMARAJAN** SV **JUDGE**