Ramakrishnan P. v. G. Sukumaran and G. Ramakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** ## **1944** **RSA NO. 750 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 05.02.2015 PASSED IN AS NO.133/2011 OF III ADDITIONAL DISTRICT COURT, PALAKKAD AND THE JUDGMENT AND DECREE DATED 31.01.2011 IN OS 326/2003 OF ADDITIONAL MUNSIFF COURT, PALAKKAD** ## **APPELLANT/APPELLANT/PLAINTIFF:** RAMAKRISHNAN. P AGED 70 YEARS S/O. LATE PAZHANIMALA, VADKKEVEEDU, POOLAKULAM, POLPULLY AMSOM AND POST, PALAKKAD TALUK AND DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 G. SUKUMARAN S/O. LATE GOVINDAN, POOLAKULAM, POLPULLY AMSOM AND POST, PALAKKAD TALUK AND DISTRICT. 678 508 2 G. RAMAKRISHNAN S/O. LATE GOVINDAN, POOLAKULAM, POLPULLY AMSOM AND POST, PALAKKAD TALUK AND DISTRICT.678 508 BY ADV SRI.P.K.MOHANAN(PALAKKAD) FOR RESPONDENTS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING: R.S.A.No.750/2015 2 ## **M.R.ANITHA, J** ************** R.S.A.No.750 of 2015 -----------------------------------------------Dated this the 15[th] day of December, 2022 ## **JUDGMENT** Appellant is the plaintiff in O.S.No.326/2003 on the file of Additional Munsiff's Court, Palakkad. The case was one for mandatory injunction with alternative prayer for recovery possession on the strength of title. Plaintiff alleges to be the exclusive title holder of the plaint schedule property having an extent of 7 cents as per purchase certificate No.5109/1976 of Land Tribunal-II, Kollengodee issued in the name of father of the plaintiff Pazhanimala who had verumpattam right over the property. Plaintiff is a co-owner of the schedule property. During 2000, defendants were permitted to put up a temporary cattleshed in the plaint schedule property for a period of two years with an assurance that it would be demolished thereafter. In March 2002, plaintiff demanded to remove the structures. R.S.A.No.750/2015 3 Thereupon, the defendants raised untenable contentions and also started laying foundation for a building in the year 2003. Plaintiff filed O.S.No.181/2002 before the Munsiff's Court, Palakkad for permanent injunction. Case was settled with the intervention of mediators and the defendants agreed to vacate the premises within six months. But the defendants did not comply with the undertaking and on approaching the mediators, they did not interfere. Defendants also resumed construction activities. Hence the suit. 2. Defendants 1 and 2 filed written statement denying the right and title of the plaintiff over the plaint schedule property. It is contended that defendants obtained title with respect to 23 cents of land comprised in Survey No.178/2 as per purchase certificate No.5108/1976 of Kollengode Land Tribunal No.II. Property is lying in two plots separated by road. The western side is having 12 cents which is being utilized by the defendants as dwelling house. The eastern property having 11 cents is utilized as firewood shed. It is in existence for the last sixty years. The purchase certificate shows the existence of R.S.A.No.750/2015 4 defendants' property on south and east. On the north, there is a paddy land which also belongs to the defendants. The property covered by the purchase certificate No.5109 of 1976 and the plaint schedule property are entirely different. Hence, there is no need to obtain permission from the plaintiff to put up a cattle shed. During 2002 itself, construction of foundation was completed. Plaintiff voluntarily not pressed O.S.No.181/2002 without intervention of any mediators. At the instance of Chittur police, the road leading to dwelling house of plaintiff is demarcated by placing iron fences. The construction in the plaint schedule property started much prior to 10.04.2003 and completed on 07.05.2003. 3. Additional written statement was also filed contending that the suit is barred under Order 2 Rule 2. The plaint schedule property fetches market value of Rs.2,10,000/-. Hence the valuation of the suit is not proper. 4. PW1 was examined and Exts.A1 to A8 were marked from the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B4 were marked from the side of the defendants. R.S.A.No.750/2015 5 Exts.C1 to C3(a) and Exts.X1 and X2 were also marked. 5. The trial court on evaluating the fact, circumstances and evidence adduced, found that the plaintiff has no possession over the plaint schedule property and also failed to prove his title over the property. It is also found that the plaintiff has approached the court at a belated stage and accordingly the suit has been dismissed. First appellate court on re-appreciating the facts and circumstances found that plaintiff failed to establish that Ext.A1 takes in the plaint schedule property and identity of the schedule property has not been established and ultimately confirmed the judgment and decree passed by the trial court. Aggrieved by the judgment and decree passed by the courts below, the appellant has approached this Court in second appeal. 6. Notice was issued to the respondents/defendants. Respondents appeared through counsel. Lower court records were called for and both sides were heard. 7. The appeal was admitted on the following substantial question of law. _“(i) When Exts.B2 and A1 purchase_ R.S.A.No.750/2015 6 _certificates were issued on the same day and simultaneously, can Ext.B2 have precedence over Ext.A1 and such findings, made by the courts below legally are sustainable?_ _(ii) Could the Commissioners' reports properly identify the properties comprised in Exts.A1, A5 and B2, as such could the suit be disposed of properly in the legal parlance?_ _(iii) The finding made on account of the remittance of court fee, for the relief of recovery of possession, legally correct?_ _(iv) Has the appellant succeed in proving his title over the plaint schedule property?_ _(v) Have the courts below committed legal perversity in analyzing the evidence available in the case and consequently coming to proper conclusions in the matter?”_ 8. Initially, learned counsel for the appellant/plaintiff argued for a remand of the matter for the reason that the suit has been dismissed by the courts below for want of identification of the plaint schedule property. He would also contend that the bar under Order II Rule 2 will not apply since the cause of action in O.S.No.181/2002 and the cause of action now alleged for filing the present suit are entirely different. R.S.A.No.750/2015 7 9. Learned counsel for the respondents/defendants vehemently would contend that the dispute is not one of identity of the property alone and the specific contention of the defendants is that no property has been obtained by the plaintiff as per Ext.A5 purchase certificate and it is also his contention that the property actually obtained by the plaintiff as per Ext.A1 purchase certificate has been clearly demarcated by the Commissioner and the plaint schedule property now claimed is part of the property belonging to the defendants as per Ext.B2 purchase certificate which is issued with respect to 23 cents of property. It is also his contention that the earlier suit was dismissed as not pressed without liberty to file fresh suit and hence the present suit is not maintainable. It is further contended that the suit for recovery possession sought for, without the juncture of the sister of the plaintiff who is a coowner, is not maintainable in law. 10. Question of bar under Order II Rule 2 has been concurrently found in favour of the plaintiff. Order II Rule 2 provides that every suit shall include the whole of the claim which R.S.A.No.750/2015 8 the plaintiff is entitled to make in respect of the cause of action. But, a plaintiff may relinquish a portion of the claim in order to bring the suit within the jurisdiction of any court. Sub-rule 2 of Order 2 provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. 11. It is relevant in this context to quote **Sidramappa v. Rajashetty and Others : 1970 KHC 391** . Paragraph 7 of the judgment is relevant in this context to be extracted which reads thus: _“................. The requirements of Order 2 rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a "cause of action." 'Cause of action' means the, 'cause of action for which the suit was brought'. It cannot be said that the cause of action on which the present -suit was brought is the same as that in the previous. suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to_ R.S.A.No.750/2015 9 _which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings."_ 12. In **Mohd. Hafiz v. Mohd. Zakaria : AIR 1922 PC 23** the scope and ambit of Rule 2 of Order II has been dealt with. That was a case in which a mortgage deed provided that if the interest was not paid for six months the creditor should be competent to realise either the unpaid amount of the interest due to him or the amount with interest for bringing a suit in court without waiting for expiration of the time period and plaintiff after more than three years filed a suit for interest alone and obtained a decree. In that context, it was held that the plaintiff must be deemed to have relinquished his claim for further relief, he having exercised the option of suing for interest alone. So, the second suit for principal and suing for interest was held not maintainable. 13. Here the specific contention of the defendants is that earlier suit O.S.No.181/2002 was dismissed as not pressed and hence the present suit is barred under Order II Rule 2. But the contention of the learned counsel for the plaintiff is that R.S.A.No.750/2015 10 O.S.No.181/2002 was filed for a permanent injunction, copy of which is produced as Ext.B1 from the side of the defendants, seeking for restraining the defendants and their men from committing any act of waste in the plaint schedule property. The allegation in the plaint is that, on 19.03.2002, defendants started digging to lay foundation for constructing a permanent building in the plaint schedule property. But the present suit has been filed for mandatory injunction and in the alternative for recovery of possession. So, according to the learned counsel, the cause of action alleged in the earlier suit and the present suit are entirely different. Even though the earlier case was pending it is open for the plaintiff either to amend the plaint and incorporate the present relief or to file a separate suit for a subsequent cause of action since the present suit has been filed based on the alleged revocation of licence given by the plaintiff to the defendants over the plaint schedule property and for mandatory injunction for directing the defendants to vacate the premises or in the alternative, for recovery of possession. It is alleged in the plaint that defendants resumed reconstruction after the disposal of R.S.A.No.750/2015 11 O.S.No.181/2002 at the instance of the mediators and since the present suit has been filed based on a different cause of action for a distinct relief, it cannot be said that bar under Order II Rule 2 will apply. 14. Though an argument was also advanced with respect to bar under Order XXIII Rule 1(4) as has been rightly contended by the learned counsel for the plaintiff, no such contention has been raised by the defendants in the written statement. As per Order XXIII Rule 1(4) at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) of Rule (1), he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. But the claim in the present suit is based on a new cause of action after the alleged revocation of licence. So also, in the absence of specific pleading of bar under Order XXIII Rule 1(4), it cannot be taken as a substantive question of law which could be raised in the second appeal. R.S.A.No.750/2015 12 15. The main dispute and argument between the parties is with regard to the proof of title of the plaintiff with respect to plaint schedule property having an extent of 7 cents. The specific contention of the defendants is that the property obtained by the plaintiff as per Ext.A1 is the property demarcated by the Commissioner in blue shade, which, according to the plaintiff has been obtained by him as per Ext.A5 purchase certificate dated 30.03.1977. 16. It is vehemently contended by the learned counsel for the defendants that no property having an extent of 10 cents has been obtained by the plaintiff as per Ext.A5 purchase certificate and under the guise of Ext.A5, plaintiff is attempting to raise false claim against the property obtained by him as per Ext.B2, a valid purchase certificate issued in his favour with respect to 23 cents of property. 17. It is contended by the learned counsel for the plaintiff that the property in Exts.A1 and B2 have been issued on the same day, i.e. 31.01.1977, serial number is also one after the other, that is 5108/1976 with respect to Ext.B2 and 5109/76 with R.S.A.No.750/2015 13 respect to Ext.A1. So, he would contend that it cannot be contended that the purchase certificate issued in favour of the plaintiff alone is false or concocted. According to him, the first appellate court dismissed the suit mainly on the ground that the plaintiff could not establish the identity of the plaint schedule property. Hence, the learned counsel was mainly requesting for a remand of the case to the trial court for proper identification of the plaint schedule property. 18. Learned counsel for the defendant, on the other hand, vehemently objects in remanding the case since, according to him, the property was clearly measured by the Taluk Surveyor and the property covered by Ext.B2 as well as Ext.A1 has been demarcated though a portion of the defendants' property, is demarcated as plaint schedule property. 19. The main question in this case is with regard to the identity of the plaint schedule property. Learned counsel for the appellant/plaintiff would vehemently contend that the first appellate court has found that the property covered by Ext.A5 has been identified by the commissioner, that is the residential R.S.A.No.750/2015 14 property of the plaintiff and the defendants' property as per Ext.B2 is also identified. It is further found that Ext.B2 and Ext.A1 purchase certificate were issued consecutively and further found that it is evidenced from the commissioner's report that both documents pertains to one and the same property. Hence it is concluded that once Ext.B2 was issued conferring the title to the property, there is no property remains to be issued as per Ext.A1 and it is further concluded that Ext.A1 is a concocted document issued to a non-existent property. 20. Learned counsel for the defendants also would vehemently contend that the plaintiff is attempting to make false claims upon the property of the defendants which was allotted to him as per Ext.B2 purchase certificate having an extent of 23 cents. According to him, the property covered by Ext.A1 is actually where the plaintiff's house situates and Ext.A5 document was subsequently manipulated when there is no property remains in that survey number. 21. Admittedly the properties allotted to the plaintiff as well as to the defendants are comprised in old survey No.178/2. R.S.A.No.750/2015 15 The total extent of property covered by Exts.A1 and B1 is 30 cents. As per Ext.B2 the defendant has been allotted 23 cents of property and as per Ext.A1 plaintiff was allotted 7 cents of property. 22. The case of the plaintiff is that the property which has been demarcated in the plan is actually the property obtained by him as per Ext.A1. The latest commission report supports the case of the plaintiff that the plot demarcated as 7.41 cents is the property obtained by the plaintiff as per Ext.A5. Ext.A5 is the purchase certificate dated 30.03.1977 with No.59/77, that is subsequent to the issue of Ext.A1. A purchase certificate issued by the Land Tribunal is a conclusive proof of right, title and interest of the assignee unless and until it is set aside or modified by a competent forum. So Exts.A1 and B2 would show that on the same day with consecutive numbers two purchase certificates have been issued in favour of the 1[st] defendant firstly and thereafter as the next number in favour of the plaintiff. The commissioner in Ext.C3 report, which is the final report, R.S.A.No.750/2015 16 categorically reported that in the plaint schedule property described in the plaint the second defendant is residing though the plaintiff claims that it is the property covered by the purchase certificate Ext.A1 issued in his favour. It is further reported that the boundaries of plaint schedule property described in the plaint is not matching fully and only northern boundary is matching as that of the property given in the purchase certificate and the extent of property is shown as 5.60 cents. As already stated, the commissioner further reported that, Ext.A5 is the purchase certificate with respect to the residential property of the plaintiff and the four boundaries in the purchase certificate and the boundaries on the site are tallying and the extent of property is stated as 7.41 cents and that has been shown in blue shade. As regards the purchase certificate Ext.B2 pertaining to the defendants it is reported that its boundaries are not fully tallying with the boundary on the site and as per the possession and boundaries and records it comes to 11 cents in which the property of the first defendant and house is situated. The commissioner also reported that even though 23 cents of R.S.A.No.750/2015 17 property is shown in the purchase certificate the property of the first defendant only comes to 11 cents. So also at the instance of the defendants work memo was filed and he was asked to report whether the northern boundary shown in the defendants purchase certificate is not that of the kudiyirippu property of the plaintiff and the commissioner drawn the 1[st] defendant's property in a particular shape and reported that northern boundary is paddy land and the property of the plaintiff. So in the sketch the commissioner had shown the plaint schedule property separately in which the second defendant is reported to be residing. The specific contention of the learned counsel for the defendant is that the property covered by Ext.B2 purchase certificate is lying in two blocks and the eastern block is now claimed as the plaint schedule property and in which the second defendant is residing. On verifying Ext.B2 purchase certificate there is nothing to indicate that it is lying as two blocks and the eastern boundary of it is described as way and paddy field and if the plot on the eastern side of way which is now in the possession of the second defendant is also taken as inclusive of the property covered by R.S.A.No.750/2015 18 Ext.B2 the eastern boundary will not tally. That is why the commissioner reported that the boundaries of the property in Ext.B2 and that on the site are not tallying. 23. Since Exts.A1 and B2 have been issued on the same day consecutively by the same Land Tribunal to the plaintiff as well as to the first defendant and boundary description of both properties are not tallying with the actual lie of the property,there is no rationale in accepting one and discarding the other especially because no action was taken by the defendants to get Ext.A1 purchase certificate issued in favour of the plaintiff to set aside as false, void or concocted. So long as the purchase certificate stands the court cannot jump to a conclusion that it has been issued to a non-existent property especially because 1st defendant’s property covered by Ext.B2 also is not tallying with the actual boundaries and a part of the property alleged to be the part of Ext.B2 is now in the occupation of second defendant whereas Ext.B2 purchase certificate has been issued in favour of first respondent. So what actually transpired R.S.A.No.750/2015 19 in issuing Ext.A1 purchase certificate and whether it is a false or concocted document and whether the extent of property shown in Ext.B2 was correct or not etc. have to be established by adducing convincing evidence. It has come out that at the instance of the defendants Ext.X1 and X2 were called for. Ext.A7 is the copy of the order which led to the issue of purchase certificate with respect to 7 cents of land in favour of Pazhanimala the plaintiff's father and Ext.A8 is a letter from the Special Tahsildar to Munsiff, Palakkad stating the non availability of S.M.8902/76 of Kollengode Land Tribunal in pursuance of which Ext.B2 purchase certificate was issued. It would show that the plaintiff had taken steps to ascertain the veracity of Ext.B2 purchase certificate issued in favour of the 1[st] defendant with respect to 23 cents of land. In Ext.C3 report also the report of the commissioner is to the effect that though in the purchase certificate 23 cents of property has been shown only 11 cents of property will come as that of the first defendant. So Ext.C3 report will not in anyway favour or support the case of the defendants that the eastern plot demarcated in Ext.C3(a) is part R.S.A.No.750/2015 20 of Ext.B2 purchase certificate. So the conclusion made by the first appellate court that once Ext.B2 issued conferring title to the property issuance of Ext.A1 is with respect to a non-existent property and it is a result of foul play etc is without any basis. The said finding is also not in consonance with Ext.C3 and Ext.C3(a) commissioner's report and plan which is accepted by the first appellate court as well as the trial court. 24. So as has been rightly contended by the learned counsel for the appellant/plaintiff, the first appellate court dismissed the suit for the reason that identity of the plaint schedule property is not established or proved. Hence, the request of the counsel for the appellant to give an opportunity to identify the plaint schedule property is only to be allowed. 25. In the result, the impugned judgments and decree passed by the courts below are set aside and the case is remanded to the Additional Munsiff's Court, Palakkad, giving an opportunity to the plaintiff to establish the identity of the plaint schedule property. Parties are directed to appear before the court R.S.A.No.750/2015 21 on 10.01.2022. Since the case is of the year 2003 the Munsiff is directed to dispose the case as expeditiously as possible. Parties shall bear their respective costs. (sd/-) **M.R.ANITHA, JUDGE** jsr/shg True Copy P.S to Judge