Pavangad Sreenivasan and Pavangad Subramanian v Pavangad Nirmal, Pavangad Shaji, Pavangad Bahirshan, Pavangad Dileepkumar, Pavangad Ranjith, Pavangad Suresh, Pavangad Anil, Pavangad Gireesh, Pavangad Manilal, Pavangad Santhilal, Sindhu Ajithkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** ## **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **OP(C).No.2713 OF 2014(O)** **AGAINST THE ORDER/JUDGMENT IN OS 258/2006 OF SUB COURT,KOZHIKODE** ## **PETITIONERS:** - **1 PAVANGAD SREENIVASAN, AGED 90 YEARS, S/O.KUNHIKORU VAIDHYAR, RESIDING AT ANNAMMA HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE** - **2 PAVANGAD SUBRAMANIAN AGED 82 YEARS S/O.KUNHIKORU VAIDHYAR, RESIDING AT ANNAMMA HOUSE, PUTHIYANGADI AMSOM DESOM, KOZHIKODE** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS:** - **1 PAVANGAD NIRMAL S/O.PADMANABHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021.** - **2 PAVANGADI SHAJI @ MRIDUL S/O.PADMANABHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** - **3 PAVANGAD BAHIRSHAN S/O.PADMANABHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** - **4 PAVANGAD DILEEPKUMAR S/O.PADMANABHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** **OP(C).No.2713 OF 2014** **2** - **5 PAVANGAD RANJITH S/O.PADMANABHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** - **6 PAVANGAD SURESH S/O.SREEDHARAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** - **7 PAVANGAD ANIL S/O.SREEDHARAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** - **8 PAVANGAD GIREESH S/O.SREEDHARAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** **9 PAVANGAD MANILAL S/O.PAVANGAD BHARATHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** **10 PAVANGAD SANTHILAL S/O.BHARATHAN,RESIDING AT PAVANGAD HOUSE, PUTHIYANGADI AMSOM DESOM, PO PAVANGAD , KOZHIKODE 673 021** **11 SINDHU AJITHKUMAR C/O.NARAYANAN MASTER, RESIDING AT PANKAJ NIVAS,BANK ROAD, PARTHIYARAKARA , PO VATAKARA, KOZHIKOD E673 101** **R1-10 BY ADV. SRI.K.M.FIROZ R1-10 BY ADV. SMT.M.SHAJNA R1-10 BY ADV. SRI.S.KANNAN R11 BY ADV. SRI.K.LAKSHMINARAYANAN R11 BY ADV. SMT.SATHYA SHREEPRIYA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2019, THE COURT ON 14-02-2020 DELIVERED THE FOLLOWING:** **OP(C).No.2713 OF 2014** **3** ## **JUDGMENT** **Dated this the 14[th] day of February, 2020** **The original petitioners are the plaintiffs in O.S.No.258/2006 of Sub Court, Kozhikode, which is a suit of recovery of possession.** **2. The plaintiffs claimed that, plaint A and B schedule properties belonged to Pavangad Illom. The plaintiffs are the successors of one Unnimaya Antharjanam born in her matrimonial relationship with one Chirukandan Vaidyar. The defendants are the successors in interest of Chirukandan Vaidyar born in his relationship with one Chirutha, whom Chirukandan Vaidyar had married after the death of Unnimaya Antharjanam. Plaint B schedule property devolved on Unnimaya Antharjanam and thereafter on her children born to Chirukandan Vaidyar. The properties acquired by Chirukandan Vaidyar were partitioned pursuant to a decree in O.S.No.21/1976 on the file of the Sub Court, South Malabar. Plaint** **OP(C).No.2713 OF 2014** **4** **B schedule was not included in the said suit since it was not an acquisition of Chirukandan Vaidyar and was possessed and enjoyed by Unnimaya. Pursuant to revenue settlement, Pavangad Illom paramba was later called Kizhakke Pavangad and Vadakke Pavangad. The properties of Unnimaya Antharjanam were recorded in the revenue settlement in the name of her great grandson Chathu Vaidhyar, who was the eldest member of the family at the time of promulgation of the Malabar Land Registration Act. The defendants and their predecessors who are the successors of Chirutha, the 2[nd] wife of Chirukandan Vaidyar have no right over plaint B schedule properties. However, defendants started acting as the real owners of the property and created documents. When plaintiffs came to know about this, they issued a lawyer notice calling upon the defendants to surrender B schedule property. Since they refused to do so, the suit was filed for recovery of possession on the strength of their title.** **OP(C).No.2713 OF 2014** **5** **3. Defendants 1 to 8 filed joint a written statement and defendants 9, 10 & 11 filed a separate written statement denying the averments in the plaint. It was contended by them that plaint B schedule was not identifiable. The genealogy shown was not correct and the survey and resurvey and the boundaries were false. There was no property like plaint B schedule and there was no Illom by name Pavangad Illom. There was only a thiyya family by name Pavangad family. The plaintiffs actually belonged to Mannarkkal family. Chirukandan Vaidyar had not married a lady by name Unnimaya Antharjanam. O.S.No.21/1876 was filed making senior most members of each branch as parties. The suit was settled by a compromise decree in the year 1877. The properties of the tharavadu were divided and the common tharavadu was extinguished. Property shown as plaint B schedule was also a part of the said decree.** **4. Pending trial, plaintiffs filed I.A.No.5174** **OP(C).No.2713 OF 2014** **6** **of 2006, requesting the Court to appoint an Advocate Commissioner to measure the disputed properties. A work memo was also filed. The Advocate Commissioner, after the measurement of the property with the assistance of a Surveyor filed a report and two plans. One was prepared by him and the other was prepared by the Taluk Surveyor. According to him, B schedule property was identified on the basis of survey records.** **5. The Advocate Commissioner's Report shows that property was measured in the presence of both parties. The District Head Surveyor (retired) had assisted the Advocate Commissioner in identifying the property. He had found that some of the plaint schedule properties were in the possession of the defendants and the remaining were in the possession of 3[rd] parties. He also noted that there were old substantial structures existing in the properties. It was also found that the plaint schedule property was lesser in extent.** **OP(C).No.2713 OF 2014** **7** **6. Subsequently, plaintiffs filed I.A.No.5372 of 2012, with a request to remit the Advocate Commissioner's report and plan to the Advocate Commissioner on the ground that, he had identified only a portion of the property on the basis of the survey records and that he has not properly identified the properties. It was also stated that, the Advocate Commissioner arrived at his own conclusions. Counter was filed by the defendants denying the above allegations. The above interlocutory application was dismissed by Ext.P9 order dated 21.08.2014, which is under challenge in this original petition.** **7. Court below dismissed the application mainly on the ground that the plaintiffs failed to produce any material document to show the identity of the property. It was held by the Court that, the only document that was produced was a certified copy of 'A register', which was not sufficient to identify the property.** **OP(C).No.2713 OF 2014** **8** **8. Assailing the above findings, the learned counsel for the petitioners contended that the Court below should have directed the Advocate Commissioner to properly identify the property and to measure the property. The property was not clearly identified. The contention of the plaintiffs was that the property was not identified with reference to the revenue record. On the basis of the survey record certain portions of the land were included in the report.** **9. Answering the above contentions, the learned counsel for the respondents 1 to 10 contented that, the plaintiffs did not produce any document to evidence the right of the plaintiffs over the property or even the devolution of the right on the predecessors of the plaintiffs and also on them. It was contended that, recovery of possession was sought only on the basis of a certified copy of the revenue records. Revenue records can be received only when if there was no** **OP(C).No.2713 OF 2014** **9** **other document. Revenue extract, which was the “Adangal extract” was not reliable and will not confer title. It was contended that, on the other hand, the defendants have produced 51 documents along with the written statement covering the period from the year 1877 onwards, evidencing the devolution of title over the entire properties and the rights of the defendants over the properties. The devolution of the property on the defendants as evident from the above documents rules out the claim of any right of the plaintiffs over the property held by the defendants, it was contended.** **10. Exhibit R1(e) produced by the defendants is the copy of “Adangal extract” relied on by the plaintiffs. According to the defendants, extent of property in Ext.R1(e) was different from the extent of plaint B schedule property. Plaint A and B schedule property had 1.52 Acres of the land each as per plaint claim. They were stated to be situated in Survey Nos.59/2 and 56/3. However in** **OP(C).No.2713 OF 2014** **10** **Ext.R1(e), they were shown as 1.30 Acres and 1.52 Acres respectively in Survey Nos.27/1 and 29/4. It was also stated that the predecessors name was claimed as Pavangad Chathu, but the name actually differed. It was contended that, no purpose would be served by measuring out the property in the absence of any title deed.** **11. The learned counsel for the 11[th] respondent contended that “Adangal extract” relied on by the plaintiffs was only an extract of the revenue records and it will not confer title. The plaintiffs were claiming absolute right only against the defendants. They had no case that any 3[rd] party had right over the property. However, the Commissioner found that 3[rd] parties were in possession of some portion of land.** **12. Evidently, the plaintiffs are building up a case on the basis of Ext.R1(e) alone. Hon'ble Supreme Court in Prahalad Pradhan v. Sonu Kumhar [2019(4) KLT 374 (SC)] had held that entries in the** **OP(C).No.2713 OF 2014** **11** **revenue records do not confer title to property nor do they have any presumptive value on title. The plaintiffs are unable to support the rights claimed by them by any title deed. Evidently, this Court in exercise of jurisdiction under Article 227 of the Constitution of India, at this stage is not expected to go into the question whether the plaintiffs have proved their title. Suffice to hold that in the absence of any document of title referable to identity of the property claimed, Court below could not have given any specific direction to the Advocate Commissioner for a fresh identification and measurement.** **13. In the light of the fact that, plaintiffs have only relied on Ext.R1(e) alone, and in the absence of any title deed, I find no illegality in the impugned order. Considering these facts, I am not inclined to interfere in impugned order. However the plaintiffs will be entitled to raise their objections and to examine the Advocate** **OP(C).No.2713 OF 2014** **12** **Commissioner to establish their case. The original petition fails and is dismissed.** ## **Sd/-** **SUNIL THOMAS JUDGE** **VPK** **OP(C).No.2713 OF 2014** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE PLAINT IN OS 258/2006 WAS FILED BEFORE THE SUB COURT, KOZHIKODE** - **EXHIBIT P2 COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 1 TO 8** - **EXHIBIT P3 COPY OF THE REPLICATION FILED BY THE PETITIONERS** - **EXHIBIT P4 COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 5174/06 DATED 13/6/2006** - **EXHIBIT P5 COPY OF THE WORK MEMO** - **EXHIBIT P6 COPY OF THE REPORT, PLAN AND SKETCH OF THE ADVOCATE COMMISSIONER DATED 24/3/2012** **EXHIBIT P7 COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA 5372/06** - **EXHIBIT P8 COPY OF THE COUNTER STATEMENT FILED BY THE 11TH RESPONDENT** - **EXHIBIT P9 COPY OF THE ORDER DATED 21/8/2014** ## **RESPONDENTSS/S EXHIBITS:** **EXHIBIT R 1(A) TRUE COPY OF THE ORDER DATED 03.06.2008 IN IA NO.3030 OF 2007 IN OS NO.258/2006 ON THE FILES OF IIND ADDITIONAL SUBORDINATE JUDGES COURT, KOZHIKODE** - **EXHIBIT R1(B) TRUE COPY OF THE AFFIDAVIT DAETD 25.07.2008 IN SUPPORT OF IA NO.2719/2008 IN OS NO.258/2006 ON THE FILES OF THE IIND ADDITIONAL SUBORDINATE JUDGES COURT, KOZHIKODE** **EXHIBIT R 1(C) TRUE COPY OF THE OBJECTION DAETD 07.06.2012 SUBMITTED ON BEHALF OF THESE DEFENDANTS TO THE COMMISSION REPORT DATED 24.03.2012 ON THE FILES OF IIND ADDITIONAL SUBORDINATE JUDGES COURT, KOZHIKODE** **OP(C).No.2713 OF 2014** **14** **EXHIBIT R 1(D)** **TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS 1 TO 8 DATED 006.11.2012 IN IA NO.5372 OF 2012 IN OS. NO.258/2006 ON THE FILES OF IIND ADDITIONAL SUBORDINATE JUDGES COURT, KOZHIKODE** **EXHIBIT R 1(E)** **TRUE COPY OF THE CERTIFIED COPY OF THE 'A REGISTER OF THE PROPERTIES IN THE SURVEY NO.27/1 AND 29/4** **EXHIBIT R11(A)** **TRUE COPY OF THE PETITION IA 2719/08 ALONG WITH ITS PROCEEDINGS & ORDER DATED 22.05.2010 ON THE FILE OF SUB COURT, KOZHIKODE** **EXHIBIT R11(B) TRUE COPY OF THE JUDGMENT DATED 28.07.2010 IN W.P.(C).23597/2010 ON THE FILE OF THIS HONOURABLE COURT.** ## **// TRUE COPY //** **PA TO JUDGE** **VPK**