Puthiyadath Narayani Amma and Others v. Talipparamba Panchayat and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938 RSA.No. 270 of 2007 (F ) ------------------------ AGAINST THE JUDGMENT & DECREE DATED 13-10-2006 IN AS 149/2001 of ADDL. DISTRICT COURT (ADHOC)-II, THALASSERY AGAINST THE JUDGMENT & DECREE DATED 10-04-2001 IN OS 80/1990 of SUB COURT, PAYYANNUR APPELLANTS/APPELLANTS 1 TO 3 & 5 TO 7/PLAINTIFFS 2 TO 4 & 6 TO 8: --------------------------------------------- 1. PUTHIYADATH NARAYANI AMMA, - W/O KANNOTH KUNHIRAMAN MENON (DIED). 2. SREEDEVI AMMA, - D/O.KUNHIRAMAN MENON, AYODHYA, TALIPARAMBA AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. PARVATHI AMMA, D/O.KUNHIRAMAN MENON, - AYODHYA, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DIST. 4. BALACHANDRAN, S/O.KUNHIRAMAN MENON, - AYODHYA, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 5. PADMINI, D/O.KUNHIRAMAN MENON, - AYODHYA, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 6. SEETHA, D/O.KUNHIRAMAN MENON, - AYODHYA, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S)/RESPONDENTS & 4TH APPELLANT /DEFENDANTS & 5TH PLAINTIFF: ------------------------------------- 1. TALIPARAMBA PANCHAYAT REPRESENTED BY ITS EXECUTIVE OFFICER, TALIPARAMBA (NOW IT HAS BECOME TALIPARAMBA MUNICIPALITY). .....2 RSA.No. 270 of 2007 (F ) 2 2. THE SPECIAL OFFICER, - TALIPARAMBA MUNICIPALITY, TALIPARAMBA. (NOW SECRETARY, TALIPARAMBA MUNICIPALITY, TALIPARAMBA) 3. GOVINDA MENON, S/O.KUNHIRAMAN MENON, - AYODHYA, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. R1 & 2 BY ADV. SRI.M.SASINDRAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## R.S.A. No.270 of 2007 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## Dated this the 1[st] day of December, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The appellants are the plaintiffs in O.S.No.80/1990 on the files of the Sub Court, Payyannur. The suit was one for declaration of title and recovery of possession on the strength of title. According to the plaintiffs, the plaint schedule property originally belonged to Narikkottillam in jenmam and the same was in possession of one Madhavi Amma, who is the mother-in-law of the deceased 1[st] plaintiff, on the strength of Kuzhikanam deed of 1649/1941. While so, the 1[st] plaintiff obtained kuzhikanam right over the property by a registered document dated 27.8.1965 and on the strength of the said deed she was in possession of the property. Subsequently, she acquired jenmam right over the property as per the proceedings in O.A. No.4522/1976 of the Land Tribunal, Taliparamba. The plaint B schedule property is a part _RSA.270/07 -F_ **:2:** of plaint A schedule property. According to the plaintiffs, the plaint schedule property having a total extent of 94 cents belongs to the 1[st] plaintiff and she is in possession of the said property which lies within the boundaries specified in the plaint schedule and it was the actual extent of property conveyed by Ext.A1 and got reinforced by Ext.A2 purchase certificate. 2. The defendants in the written statement contended that the plaintiffs have neither right nor possession over the plaint B schedule property. According to the defendant, Ext.B1 is the prior title deed of Ext.A1 gift deed and it takes in more area than contained in Ext.A1. In Ext.B1, the plaint A schedule property is shown with 32 x 21 koles as measurement of the property. So, the actual extent of the property conveyed by the lease is 66.5 cents only. On the western side of A schedule property, 10 cents of property was orally obtained by the then Panchayat _RSA.270/07 -F_ **:3:** President Balakrishna Menon from the jenmi for constructing an auditorium and the Panchayat had already constructed basement for that. The Panchayat has been in possession of that property for the last 35 years. Similarly, the defendants have got right and possession over the northern 30 cents of property under tenancy right from the Juma-Ath. Thus, the defendants are in possession and enjoyment of a total extent of 39 cents, which lies on the western and northern sides of the property, which the plaintiffs got from Madhavi Amma. It is contended that even if the plaintiffs had title over the property, the same had been lost by adverse possession, for the last more than 35 years. 3. On the aforesaid rival pleadings, both parties adduced evidence consisting of the oral testimony of P.W.1, D.W.1 and Exts.A1 to A10, B1 to B9 and C1 to C3. After considering the evidence on record, the trial court dismissed the suit and in appeal the appellate _RSA.270/07 -F_ **:4:** court dismissed the appeal confirming the findings of the trial court. The legality and correctness of the concurrent findings, whereby the courts below rejected the case of the appellants are challenged in this Regular Second Appeal, on the basis of the questions of law raised in this Appeal. 4. Heard the learned counsel for the appellants and the learned counsel for the respondents. 5. The learned counsel for the appellants mainly contended that the courts below went wrong in concurrently arriving at a finding that the present suit is barred by res judicata. According to the learned counsel for the appellants, the courts below failed to identify the matters in issue involved in the present suit and the former suit, O.S.No.32/1986. It is also contended that the question of title was not an issue in the earlier suit, O.S.No.32/1986, and the relief sought for was confined to claim of possession only. In other words, the question of title has not been _RSA.270/07 -F_ **:5:** directly or substantially an issue in the former suit and the cause of action of the present suit arose on the date on which the trial court dismissed O.S.No.32/1986. It is also contended that the courts below have not weighed evidence in view of preponderance of probability and the possibility of better title among the rival claimants. The courts below dismissed the suit merely on the finding that the plaintiffs have not proved title and possession beyond doubt and in such circumstance the case of the defendants need not be looked into. 6. On the other hand, the learned counsel for the respondents advanced arguments to justify the concurrent finding, whereby the courts below found that the suit is barred by res judicata. According to the learned counsel for the appellants, the question of title might or ought to have been raised as a ground of defence in former suit and thereby the present suit would fall under Explanation IV to _RSA.270/07 -F_ **:6:** Section 11 of the C.P.C. Even if the question of title has not been an issue in the former suit, the question of title might and ought to have been raised as a ground of defence in the former suit. According to the learned counsel, the burden of proof is on the plaintiffs alone and the plaintiffs have to prove the title beyond the shadow of doubts and the claim of the defendants and evidence adduced by the defendants thereon need not be looked into, for declaration of the title of the plaintiffs. 7. In view of the submissions made at the Bar, the main question of law to be considered is, whether the suit was barred by constructive res judicata caused by the decree and the judgment passed in O.S. No.32/1986. Going by the impugned judgments, it could be seen that the courts below concurrently found that the present suit is barred by res judicata caused by the decree and the judgment passed is O.S. No.32/1986. This Court is of the view that both courts _RSA.270/07 -F_ **:7:** below went wrong by relying on the judgment and decrees passed in O.S. No.32/1986 for arriving at such a conclusion. Exts.B6 to B9 are the judgments and decree passed in O.S. No.32/1986 and A.S. No.183/ 1989, which arose from O.S.No.32/1986. The courts below have lost sight of Ext.B9, a certified copy of the judgment in A.S.No.183/1989. It is seen that though O.S.No.32/1986 was dismissed, A.S. No.183/1989, the plaintiffs filed an application seeking permission to withdraw the said suit with a liberty to file a fresh suit and the court granted permission and thereby, the said Original Suit was withdrawn. Once a suit is permitted to be withdrawn under Order 23 of the Code of Civil Procedure, all proceedings taken therein, including the judgment and decree passed by the trial court will be wiped off. If that be so, after the withdrawal, there was no judgment or decree in O.S.No.32/1986. But, the courts below concurrently went wrong, by relying on the decree and the judgment _RSA.270/07 -F_ **:8:** passed in O.S.No.32/1986 which was not in existence, to arrive at a finding that the suit is barred by res judicata. The above view is supported by the decision of the Apex Court in Sivaramaiah v. Rukmani Ammal (AIR 2004 SC 508). Therefore, this Court finds that O.S.No.80/1990 is not barred by res judicata. 8. Further, it is seen that after finding that the suit is barred by res judicata, the courts below have ventured to determine the issues also, by an erroneous yardstick, as to the standard of proof required in the suit. The suit was one for declaration of title and recovery of possession on the strength of title. The plaintiffs have sought for declaration of title over A schedule property on the strength of Exts.A1 gift deed, A2 Purchase Certificate and A3 to A3(d) tax receipts of various periods. It is the case of the plaintiffs that the plaintiffs have got title and possession over the A schedule property having an extent of 94 cents and B schedule property forms a _RSA.270/07 -F_ **:9:** part of A schedule property. Exts.A1 to A3(d) stand in conformity with the said claim of 94 cents. 9. On the other hand, the defendants contended that out of the total extent of the A schedule property, the defendants are in possession of B schedule property. According to the defendants, on the western side of the A schedule property, 10 cents of property was orally obtained by the then President of the Panchayat Sri. Balakrishna Menon from the 'jenmi' for constructing an auditorium and the Panchayat had already constructed the basement for the same. Thus, the Panchayat has been in possession of that property for the last 35 years. Similarly, the defendants have got right and possession over the northern 30 cents of property under tenancy right from the Juma-Ath. Now they are in possession of the aforesaid extent of properties, out of the plaint schedule properties. Thus, the defendants have set up a rival claim of title and possession over the _RSA.270/07 -F_ **:10:** aforesaid extent of properties (B schedule) and the defendants have produced Exts.B1 to B5 to substantiate the aforesaid contention raising title and possession over the B schedule property. In short, rival claims of title and possession, with respect to B schedule property, have come up before the trial court for determination. 10. What is the scope and extent of enquiry in the trial in view of the aforesaid pleadings of both parties? It is true that in a suit for declaration of title, the plaintiffs have to prove their title and possession. But, it doesn't mean that a complete go-bye can be given to the pleadings and evidence adduced by the defendants, who had set up a rival claim of title, or the evidence adduced by the defendants, could be skipped, without appraisal. There is no specific standard for declaring title and possession. The standard of proof is preponderance of probability only. Where both parties set up rival _RSA.270/07 -F_ **:11:** claims of title and possession, it is incumbent upon the trial court to appreciate the pleadings and evidence adduced by both plaintiffs and the defendants with the yardstick of preponderance of probability. In other words, the party having better title is to be determined with the yardstick of preponderance of probability and give the declaration in favour of that party who have better title. In view of Exts.A1 to A3(d), which stand in conformity with claim of 94 cents, the burden is on the defendants to prove how they got title and possession over B schedule property. In this enquiry, the evidence, adduced by the defendants, also has to be looked into and appreciated so as to find out better title among the rival claimants. 11. But, going by the impugned judgments, it could be seen that the courts below have appreciated the evidence of the plaintiffs alone with the yardstick of proof beyond doubt and arrived at a _RSA.270/07 -F_ **:12:** finding that the plaintiffs have not succeeded in proving their title beyond doubt. It is to be remembered that proof beyond doubt is not the standard of proof in civil suits and the status of the defendants is not as that of the accused in a criminal case. In other words, the courts below ought to have determined the party who have better title with the yardstick of preponderance of probability, in view of the evidence adduced by both parties. Thus, this Court is not satisfied with the way or the manner in which the courts below appreciated the evidence adduced by both parties and the judgments and decrees passed by the courts below require interference of this Court. The evidence requires fresh consideration in the light of the above observation. 12. Consequently, the judgments and decrees passed by the courts below are set aside and the matter is remanded back to the trial court for fresh _RSA.270/07 -F_ **:13:** consideration. The trial court shall dispose the case within a period of four months from the date of receipt of a copy of this judgment. The parties are at liberty to adduce further evidence, if they desire so. The parties shall appear before the trial court on 01/02/2017. This Regular Second Appeal is disposed of accordingly. All pending interlocutory applications will also stand closed. Sd/- K.HARILAL, Judge. okb/Nan