Ravikumaran v Veluchami Kounder and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939 ## **RSA.No. 1423 of 2012** AGAINST THE JUDGMENT AND DECREE IN AS 267/2008 of II ADDITIONAL DISTRICT COURT, PALAKKAD DATED 29-02-2012 AGAINST THE JUDGMENT AND DECREE IN O.S.NO.547/2004 OF MUNSIFF COURT, CHITTUR DATED 27-06-2008 ## APPELLANTS/RESPONDENTS 1 & 3 TO 5/1ST DEFENDANT AND LEGAL HEIRS OF 2ND DEFENDANT: 1. VELUCHAMI KOUNDER, S/O.SUBBAYYA KOUNDER, THEKKECHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD 2. DHARMARAJ, S/O.LATE GANDHIMATHY, RESIDING AT THEKKECHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD 3. SUMATHY, D/O.LATE GANDHIMATHY, RESIDING AT THEKKECHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD 4. SUDHA, D/O.LATE GANDHIMATHY, RESIDING AT THEKKECHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD ## BY ADVS.SRI.T.KRISHNAN UNNI (SR.) - SRI.K.C.KIRAN SMT.MEENA.A. - SRI.SAJU.S.A ## RESPONDENT/APPELLANT/PLAINTIFF: RAVIKUMARAN, S/O.KAMBAY, THEKKECHALLA, VALIYAVALLAMPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101 R1 BY ADVS. SRI.SAJAN VARGHEESE K.(CAVEATOR) SRI.LIJU. M.P THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-032018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms ## **K.ABRAHAM MATHEW J.** --------------------------------------- R.S.A.No.1423 of 2012 ----------------------------------------Dated this the 8[th] day of March, 2018 ## **JUDGMENT** The respondent instituted the suit for recovery of possession of the plaint schedule immovable property. The first appellant was the first defendant and the predecessor of the other appellants the second defendant. The trial court found that the respondent failed to prove his title to the property and accordingly, it dismissed the suit. In the appeal filed by the respondent the learned District Judge reversed the decree. This is challenged in this Second Appeal. 2. The plaint schedule property has an extent of 1 Acre 22 cents (49 Ares 40 Sq.m), which is comprised in resurvey No.515/6 of Valiyavallampathy village. In the plaint schedule its earlier survey number is shown as 568. The respondent alleged that it was part of the several properties which belonged to his father, Kambayi, who obtained a purchase certificate from the Land Tribunal in 1981 and at a partition that took place in his family in 1984, the plaint schedule property was not allotted to anyone and it remained in the ownership of Kambayi, in 2004 Kambayi sold it to the respondent; on 23.3.2004 the first appellant trespassed into it and reduced it into his possession and committed mischief in it, later, he executed a sale deed in favour of the predecessor of appellants 2 to 4. The respondent further alleged that in O.S.No.179 of 2004 filed by him against the first appellant under Section 6 of the Specific Relief Act for recovery of possession the latter denied the respondent's title to the property. So the respondent filed the present suit R.S.A.No.1423 of 2012 2 for recovery of possession on the strength of his title. The first appellant and the predecessor of respondents 2 to 4 filed separate written statements, in which they denied that the father of the respondent had title to the property and the respondent got title to the property from his father. They contended that the plaint schedule property was in the possession and enjoyment of one Veluchami Kounder under two sale deeds bearing No.59 of 1958 and 1236 of 1960 and he put the first appellant in possession of the property in 1973 and executed a sale deed in his favour in 2000, the first appellant sold the property to the predecessor of appellants 2 to 4 in 2004. They prayed for dismissal of the suit with compensatory costs. 3. Heard the learned senior counsel appearing for the appellants and the learned counsel for the respondent. 4. It is submitted on behalf of the appellants that the respondent should have prayed for a declaration of his title and in the absence of such a prayer the suit was not maintainable, for which reliance is placed on the decision of the Supreme Court in **Anathula Sudhakar v. P.Buchi Reddy(Dead) By LRs and others (AIR 2008 SC 2033)** . The Apex Court held: “Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction”. It is admitted fact that the first appellant and the predecessor of the other appellants denied the respondent's title to the plaint schedule property and asserted the title of the predecessor of appellants 2 to 4. So the respondent should have prayed for declaration of his title to the property. R.S.A.No.1423 of 2012 3 5. The trial court observed in its judgment: “There are merits as well as demerits in the claim of title put forward by the first defendant. But that will not have much impact in this case since the plaintiff had miserably failed to prove his title as well as prior possession over the plaint schedule property. Being a suit for recovery of possession the plaintiff cannot merely rest upon the weakness of the defendant's case. He has to prove his title independently by adducing positive and reliable evidence”. On the other hand the learned District Judge took into account the failure of the appellants to obtain a purchase certificate from the Land Tribunal though they had applied for it. The learned District Judge has observed: “The respondent having failed to establish his claim of title against the title by the appellant there was no reason to deny a relief in favour of the appellant as prayed for”. The learned District Judge was of the view that the failure of the defendant in a suit filed by the plaintiff for recovery of possession on the strength of its title alone is sufficient to grant a decree to the plaintiff. This is absolutely wrong. As rightly observed by the trial court, the plaintiff should prove his title by cogent evidence to recover possession of the property from the defendant when the suit is based on the plaintiff's title. The weakness of the defence is no reason to grant the plaintiff a decree. 6. In a suit for recovery of possession on the strength of title the plaintiff should prove that the property is covered by his title deed, for which he has to get it identified on the basis of its title deed as well as the survey plan. The respondent's definite case is that the plaint schedule property was part of the properties covered by A6 patta obtained by his father from the Land Tribunal. R.S.A.No.1423 of 2012 4 The total extent of the properties covered by Ext A6 patta is 11.500 Acres. One of the items is comprised in Survey No.568 and its extent is 4 acre 90 cents. The plaint schedule property is said to be part of this 4 acre 90 cents. 7. In the family of the respondent a partition took place in 1984. Ext A5 is a copy of the partition deed. The admission in it proves that the properties covered by the 'Patta' belonged to all the members of the family. In Ext X2 file maintained by the Land Tribunal relating to the proceedings which led to the issuance of Ext A6 patta in favour of father of the respondent it is specifically mentioned that the cultivating tenant was the grandfather of the respondent. This is the reason why in Ext A5 partition deed the properties are shown as family properties. Even the sisters of the respondent, who were not allotted any property, are parties to the partition deed. 8. At the partition (Ext A5) the properties of the family of the respondent were divided into four. The properties described in 'A' schedule were allotted to the respondent's father and the properties described in 'D' schedule to the respondent. The properties described in other two schedules were allotted to his brothers. One of the items allotted to the respondent is shown to be comprised in Survey No.568/2. The extent is 3 acres. The respondent's case is that the total extent comprised in the Survey No.568 was 4 acres 90 cents as evident from Ext A5 patta and after allotment of 3 acres to him the remaining 1.9 acres comprised in the said survey number remained in the ownership of his father, Kambayi, and in 1984 Kambayi sold it to him (respondent) and this property is the plaint schedule property. This was not accepted by the trial court. It held that by Ext A5 a complete partition took place in the family of the R.S.A.No.1423 of 2012 5 respondent and the plaint schedule property does not find a place in the partition deed. This was not adverted to by the learned District Judge. 9. The case of the respondent that after the partition there remained in the ownership of father Kambayi 1 Acre 90 cents comprised in survey No.568 cannot be accepted for the following reasons. a) Kambayi could have retained the property only if it was his personal property; but all the properties covered by Ext A6 patta admittedly were properties of the family. b) The plaint schedule property was not allotted to the share of Kambayi. c) The partition evidenced by Ext A5 was a complete partition, in the deed it is specifically mentioned that movable properties of the family and even the cattle had been partitioned earlier. d) There is no evidence that Kambayi was in possession of the plaint schedule property after the execution of Ext A5 partition deed. e) Admittedly, Kambayi did not pay tax for the plaint schedule property after Ext A5 partition deed. 10. It follows that the trial court rightly found that the allegation of the respondent that after the partition the plaint schedule property remained in the ownership and possession of his father, Kambayi, is false. 11. Coming to the identification of the property, a commissioner was deputed for it. The property in dispute was identified by the commissioner. It is comprised in survey no.515/6. Its previous number was 568/2. But the survey number of the plaint schedule property is shown as 568, there being no sub division. The survey plan and the other documents available and marked in the R.S.A.No.1423 of 2012 6 case prove that properties comprised in several sub divisions of survey No.582, but there is no property bearing survey No.582 i.e, without any sub division. The evidence proves that there was no property bearing Survey No.568, which is the number shown in Ext A5 'Patta'. So it is impossible to identify the property on the basis of the survey number given in the patta. 12. Now the question is whether the property can be identified on the basis of the boundaries shown in Ext A5 patta. The total extent of the properties covered by the patta is 11.500 Acres. The boundaries shown in the patta are that of the entire property. The boundaries of the property shown to be comprised in Survey No.568 are not separately shown. It means that even on the basis of the boundaries shown in the patta, the property to which the respondent claims title cannot be identified. 13. The learned District Judge relying on Section 72K(2) of the Kerala Land Reforms Act took the view that issuance of patta is conclusive proof of assignment of the properties covered by the patta. This provision is not applicable to the present case. One reason is that, as mentioned earlier, there is no property bearing Survey No.568, which is the one shown in the patta. The second is that the total extent of the property assigned to the father of respondent in Survey No.568 is shown as 4 acre 90 cents, but according to the respondent his property is comprised in Survey No.568/2; Ext C2 plan prepared by the commissioner proves that the total extent comprised in Survey No.568/2 is only 4.04 acres. As seen from the commission report the extent of the property obtained by the respondent at the partition is only 2.82 cents though its extent is shown as 3 acres in the partition deed. Thus in any R.S.A.No.1423 of 2012 7 view of the matter the claim of the respondent on the basis of the patta cannot be upheld. 14. There is no evidence to prove that the plaint schedule property was part of the property assigned to the respondent's father by Ext A5 patta. Nor is there evidence to prove that at the time the partition took place in the family of the respondent the plaint schedule property was in their possession. Execution of Ext A1 title deed in favour of the respondent by his father cannot confer any title as his father did not have title to the property. Thus, the claim of the respondent that he has title to the plaint schedule property has not been proved. He is not entitled to recover its possession from appellants 2 to 4. The learned Munsiff rightly dismissed the suit. The learned District Judge unfortunately did not take into consideration the material and relevant facts and he wrongly found that the failure of the predecessor of the appellants 2 to 4 to prove his title is sufficient to grant a decree to the respondent. The decree passed by the learned District Judge is liable to be set aside. In the result, this appeal is allowed. The decree passed by the lower appellate court is set aside and the decree passed by the trial court is restored. ## **K.ABRAHAM MATHEW JUDGE** cms