Purakkarayil Varkey Kurian and Purakkariyil Jose Bain v. P.J Babu @ Varkey Joseph and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** # **MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934** ## **RSA.No. 227 of 2012 (B)** **----------------------------------AS.3/2008 of SUB COURT, VADAKARA OS.149/2003 of MUNSIFF COURT, NADAPURAM** ## **APPELLANTS/APPELLANTS /DEFENDANT** **------------------------------------------------------------** ## **1. PURAKKARAYIL VARKEY KURIAN** **S/O.VARKEY, AGED 67 YEARS, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** ## **2. PURAKKARIYIL JOSE BAIN, S/O.KURIAN,** - **AGED 28 YEARS, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE, BY AGENT & POWER OF ATTORNEY -** **FATHER - PURAKKARAYIL VARKEY KURIAN S/O.VARKEY, AGED 67 YEARS, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** ## **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT(S)/LEGAL REPRESENTATIVES/PLAINTIFF:** **--------------------------------------------------------------------------------** **1. P.J BABU @ VARKEY JOSEPH, S/O.PURAKKARAYIL VARKEY JOSEPH, AGED 49 YEARS, RESIDING AT 'PURAKKARAYIL', KARINGADU POST, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK – 673101, KOZHIKODE DISTRICT, KERALA STATE.** ## **2. REJI @ BOSE P. JOSEPH,** **S/O.PURAKKARAYIL VARKEY JOSEPH, AGED 40 YEARS, RESIDING AT 'PURAKKARAYIL', KARINGADU POST, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK – 673101, KOZHIKODE DISTRICT, KERALA STATE.** **3. SIBI JOSEPH, S/O.PURAKKARIYIL VARKEY JOSEPH, AGED 36 YEARS, RESIDING AT 'PURAKKARAYIL' KARINGADU POST, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK - 673101, KOZHIKODE DISTRICT KERALA STATE.** **MG** **(CONTD...............)** **-2-** **RSA.No. 227 of 2012 (B) -----------------------------------** **4. ELCY P.J., D/O.PURAKKARYIL VARKEY JOSEPH, AGED 53 YEARS, KOTTARATHIL HOUSE, CHEMBANODE POST, PIN-673305, KOZHIKODE DISTRICT, KERALA STATE.** **5. LISAMMA JOSEPH, D/O.PURAKKARAYIL VARKEY JOSEPH, AGED 45 YEARS, KADAPRAYIL HOUSE, THAMBALAMMANNA POST, THIRUVAMBADI, PIN-673306, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADV. SRI.K.P.BALASUBRAMANYAN BY ADV. SRI.NIRMAL. S** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MG** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.227 of 2012 -------------------------------------Dated this the 26[th] day of March, 2012.** ## **JUDGMENT** Original plaintiff and the 1[st] appellant are direct brothers and claimed to have acquired certain properties on lease. Later, they obtained purchase certificates with respect to the properties in their respective possession. According to the original plaintiff, the suit property (marked by the Advocate Commissioner in Exts.C4 and C5, plans as plot-P5) forms part of property over which he obtained tenancy right and purchased jenm right as per Ext.A1, purchase certificate in S.M.C.No.3323 of 1975. It is his case that he had permitted his brother, the 1[st] appellant to occupy about 11 cents on the southwest of plot-P5 in Exts.C4 and C5, plans. While so, in the year, 1996 1[st] appellant is said to have trespassed into plot-P5 in Exts.C4 and C5, plans (described in the plaint as B schedule property). Hence original plaintiff wanted recovery of possession of plaint B schedule. Plaint A schedule is 11.38 Acres which according to the original plaintiff is in his possession and enjoyment. It is his further case that plaint B schedule forms part of plaint A schedule. 2. Defendants denied that they trespassed into plaint B schedule (plot-P5 in Exts.C4 and C5, plans). They claimed that plaint B schedule is part of the property over which 1[st] appellant got purchase certificate (the document is not produced in court). Trial court on the evidence found in favour 2 RSA No.227/2012 of plea raised by the original plaintiff and granted a decree. Appellants challenged that judgment and decree in the Sub Court, Vadakara in A.S.No.3 of 2008. Pending that appeal, original plaintiff died and his legal representatives were impleaded as additional respondents in that appeal. Learned Sub Judge confirmed judgment and decree of the trial court. Hence, this Second Appeal urging the substantial questions of law raised in the memorandum of appeal. 3. Notice before admission was issued to the respondents/additional plaintiffs who appeared through counsel. 4. Learned counsel for appellants contends that findings of the courts below are erroneous. According to the learned counsel, original plaintiff has no consistent case as to his entitlement as per Ext.A1, purchase certificate. In some other proceedings he would say that his entitlement is only for 8 Acres while, in this case he would say that he is entitled to 11.38 Acres (plaint A schedule) as per Ext.A1, purchase certificate. It is also contended by the learned counsel that plots P1 and P2 in Exts.C4 and C5 which the original plaintiff has disowned, form part of property covered by Ext.A1 and if so, original plaintiff is not entitled to make any claim over plot-P5 (marked in green shade) in Exts.C4 and C5. It is contended by the learned counsel that if plots P1 and P2 are found to be part of the 8 Acres belonging to the original plaintiff as per Ext.A1, that would tally with the northern boundary description in Ext.A1. Learned counsel contends that boundaries shown by the Advocate Commissioner in Exts.C4 and C5 do not tally with the boundary descriptions in 3 RSA No.227/2012 Ext.A1. It is also contended by the learned counsel that 1.50 Acres out of plotP5, the disputed property was gifted by the 1[st] appellant to the 2[nd] appellant as per Ext.B13 (Ext.X1) to which original plaintiff is a witness. Learned counsel placed reliance on **Mary George v. Lilly (2009 (1) KLT 265)** to contend that though normally an attestor cannot be imputed with knowledge of contents of the document, when the attestor is closely related to the parties to the document, such knowledge could be imputed. Hence the original plaintiff must be deemed to have been aware of the disposition made as per Ext.B13 (Ext.X1). Learned counsel contends that this being a suit for recovery of possession on the strength of title, burden of proof was squarely on the original plaintiff as held by the Supreme Court in **Ramachandra Sakharam Mahajan v. Damodar Trimbak Tanksale (dead) and others ((2007) 6 SCC 737)** . It is contended that the northern boundary descriptions in Ext.A1 which supports the contention of appellants that plots P1 and P2 are part of the property covered by Ext.A1 has to be accepted and placed reliance on the decision in **P.Velu and others v. P.Padmavathy Amma and another (ILR (1984) Kerala 30)** . 5. In response, learned counsel for respondents contends that though the burden of proof when recovery of possession is sought on title is on the original plaintiff, it is not as if evidence let in by the appellants cannot be looked into. It is also contended by the learned counsel that it is by virtue of the purchase certificate in favour of 1[st] appellant that a claim of title and possession is made as regards the disputed property, plot-P5 in Exts.C4 and C5 but that 4 RSA No.227/2012 purchase certificate is not produced in court. Learned counsel has placed reliance on the decision in **Narayanan v. Kumaran and others ((2004) 4 SCC 26)** and in particular, the observations in paragraph 26. It is also contended by the learned counsel that Ext.C3, report submitted by the Advocate Commissioner would show that though the purchase certificate in favour of 1[st] appellant was not produced in court, it was produced before the Advocate Commissioner for measurement and on measurement it was found that property covered by the said purchase certificate is towards north of plot-P in Exts.C4 and C5, plans marked in pencil shade (shown as 5.85 Acres). It is pointed out by the learned counsel that when confronted with the above, 1[st] appellant has varied his stand that the property covered by the purchase certificate in his favour is situated on the south and north, obviously to cover up the defect in title claimed by him as regards plot-P5 in Exts.C4 and C5. 6. There could be no doubt that since the original plaintiff claimed recovery of possession on the strength of title, burden of proving title of the disputed property is on him and that weakness of title set up by the appellants/defendants would not be sufficient to give him a decree. But, it is not as if the claim of title made by the appellants/defendants over the disputed property cannot be looked into. Certainly, if it is found that the claim made by the appellants is unsustainable, that is a circumstance which would go in support of the title claim made by the original plaintiff and the evidence let in by him. 5 RSA No.227/2012 7. The Advocate Commissioner has submitted two plans, Exts.C4 and C5 which concern the entire property and hence are to be read together. The Advocate Commissioner after survey of property with reference to Ext.A1, purchase certificate in favour of the original plaintiff and the purchase certificate in favour of 1[st] appellant (but not produced in court for reasons best known to the appellants) has identified property covered by Ext.A1 as plots-P and P1 to P5. The disputed property (plaint B schedule) is plot-P5 situated towards southwestern portion of the entire property. On its further south-west is the 11 cents which, it is not disputed, is in the possession of the 1[st] appellant, according to the original plaintiff as permitted by him. The present dispute is concerning property on the east of the said 11 cents and marked as plot-P5 in Exts.C4 and C5. 8. My attention is drawn to paragraph 3 of the plaint and Ext.A9, copy of common judgment in O.S.Nos.66 of 2000 and 87 of 2001 of the court of learned Munsiff, Nadapuram to contend that the claim of original plaintiff regarding the extent of property he got as per Ext.A1 is conflicting and contradictory. According to the learned counsel, while in Ext.A9, proceedings original plaintiff contended that plots-P1 and P2 are included in the 8 Acres covered by Ext.A1, his present stand is that the said plots are not including the said property. 6 RSA No.227/2012 9. In paragraph 3 of the plaint, original plaintiff has stated that as per Ext.A1, purchase certificate issued to him in S.M.C.No.3323 of 1975 of the Land Tribunal, he got absolute right over the suit property (plaint A schedule - described as 11.38 Acres). It is further stated in paragraph 3 that though Ext.A1, purchase certificate is issued in respect of 8 acres, original plaintiff is in possession and enjoyment of a total extent of 11.38 Acres including the rocky area and barren land measuring 3.38 Acres. He states that there are specific boundaries to identify the said property (11.38 Acres). In paragraph 4, he states that 1[st] appellant got 8 Acres as per purchase certificate No.123 of 1976 and that the said property is far away from the suit property (plaint A and B schedules). 10. Learned counsel for appellants has given me a copy of plaint in O.S.No.87 of 2001 (which led to Ext.A9, common judgment). It is not disputed that O.S.No.66 of 2000 and 87 of 2001 were between the original plaintiff and the owner of property on the north of property belonging to and in the possession of original plaintiff. In paragraph 4 of the plaint in O.S.No.87 of 2001, original plaintiff states that the suit property has clear boundaries on all sides and describes the boundaries on various sides. Property on the northern side of the suit property was originally in the possession of Vadakkemuri Mathew and now in the possession of Soman, Bhaskaran and Kurian. Other boundaries of the property are also given. In paragraph 5, it is stated that the suit property is hilly area. In the plaint schedule, extent of property is given as 8 Acres but, the boundaries are also given. 7 RSA No.227/2012 11. In Ext.C3, the Advocate Commissioner has identified the properties with reference to Ext.A1. I have gone through Ext.A1 where the extent of property is given as 8 Acres. But, it is seen that the boundaries of the said property on all sides are given. 12. It is not as if the original plaintiff claimed that he got purchase certificate for 11.38 Acres. His case is that the purchase certificate though is concerning 8 Acres, he is in actual possession and enjoyment of 11.38 Acres which takes in the 3.38 Acres which is rocky area and barren land. Learned counsel for respondents explained that it is probably because the 3.38 Acres is barren land and hilly area that there is no assignment of landlord's right with respect to the said 3.38 Acres. However, going through the averments in the plaint and Ext.A1 what I can discern is that even the 3.38 Acres (covered by plots-P1 and P2 in Ext.C4) is shown as part of 11.38 Acres referred in the plaint schedule and described by the boundaries mentioned therein. When a compact plot is described by specific boundaries, then in case of discrepancy between extent, survey number, boundary, etc. it is possible that the boundary descriptions could be accepted having regard to the facts and circumstances. 13. I stated that the Advocate Commissioner, after measurement of properties with the assistance of Surveyor and with reference to the purchase certificates relied on by both sides identified and located plaint A schedule (which takes in plaint B schedule as well) as plots-P and P1 to P5. I must also notice that even plots-P1 and P2 which according to the appellants form the 8 RSA No.227/2012 northern boundary of property covered by Ext.A1 measuring 8 acres comes not on the northern boundary, but comes towards south of plot-P marked in pink colour which also according to the Advocate Commissioner forms part of plaint A schedule covered by Ext.A1. 14. A further fact which I must notice is that though appellants are claiming title and possession of plot-P5 (plaint B schedule) as per purchase certificate in favour of 1[st] appellant, that purchase certificate is not produced in court, obviously as it did not support the claim made by the appellants. I must also notice that for measurement, appellants did not feel shy to produce that purchase certificate before the Advocate Commissioner. Advocate Commissioner on measurement came to the conclusion that plot-P5 in Exts.C4 and C5, plan is not part of property covered by the purchase certificate in favour of the 1[st] appellant. Advocate Commissioner identified the property covered by the purchase certificate of the 1[st] appellant as situated on the north of plot-P which forms northern extremity of property claimed by the original plaintiff. Obviously understanding the above difficulty, appellants made twist to their case that 1[st] appellant acquired properties as per purchase certificate in his favour on the north and south with an attempt to extent the tentacles to plot-P5 in Exts.C4 and C5. That contention cannot stand in the light of identification made by the Advocate Commissioner in Exts.C4 and C5. 9 RSA No.227/2012 15. So far as discrepancy in the boundaries in plaint schedule and in Ext.A1 is concerned, I must notice the lapse of time. Advocate Commissioner has referred to the plaint schedule boundaries and observed that except one, all other boundaries tallied. 16. So far as Ext.B13 (Ext.X1) is concerned, it is not disputed that original plaintiff is an attestor in the said document and that the document is executed by the 1[st] appellant, his brother, in favour of his son, the 2[nd] appellant. The decision relied by learned counsel ( **Mary George v. Lilly** ) has referred to the broad principle that though, an attesting witness cannot be impugned with knowledge of contents of the document in all circumstances, situation may be different when the attesting witness is a close relative of the parties to the document. I am not inclined to think that the Division Bench has laid down any inflexible rule in **Mary George v. Lilly** . I must also notice that whatever boundary description is given in Ext.B13(Ext.X1), title is traced to the 1[st] appellant and that has no reference to plots-P and P1 to P5 marked by the Advocate Commissioner in Exts.C4 and C5. In view of the derivation of title referred to in Ext.B13 (Ext.X1) I am inclined to think that original plaintiff cannot be bound by the contents of the said document. 17. It is seen from the judgments of courts below that these circumstances are taken into account to hold that plot-P5, the disputed property forms part of plaint A schedule and referred as B schedule in the plaint. Trial 10 RSA No.227/2012 court on a consideration of the evidence come to the conclusion that original plaintiff has title over plot-P5. That has been confirmed by the first appellate court. 18. Having heard learned counsel on both sides and gone through judgments of the courts below and the evidence I am not inclined to think that there is any substantial question of law involved in the matter requiring admission of this appeal. Second Appeal fails. It is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**