R.F.A.No.176 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA,** **1945** **RFA NO. 176 OF 2004** **AGAINST THE JUDGMENT AND DECREE DATED 30/09/2003 IN OS 11/2001 OF DISTRICT COURT, LAKSHADWEEP** ## **- APPELLANTS/DEFENDANTS 23 29:** - **1 KONDINODA PATHUMMA, W/O.MOHAMMED, AGATTI ISLAND.** - **2 KONDINODA ABOOBACKER, S/O.MOHAMMED, AGATTI ISLAND.** - **3 KONDINODA YOUSUF, S/O. MOHAMMED, AGATTI ISLAND.** - **4 KONDINODA MUTHALIF, S/O. MOHAMMED AGATTI ISLAND.** - **5 KONDINODA KIDAVE (DIED ON 8.12.2003)** - **6 KONDINODA NAFEESATH D/O. MOHAMMED, AGATTI ISLAND.** - **7 KONDINODA KHADER, S/O. MOHAMMED AGATTI ISLAND. LEGAL HEIRS OF 5TH APPELLANT** **RUKKIYATH, 8 W/O. LATE KIDAVE, AGATTI ISLAND.** - **9 ABDU RAHEEM, S/O.LATE KIDAVE AGATTI ISLAND.** - **10 FAROOK (MINOR), S/O. LATE KIDAVU AGATTI ISLAND.** 2 ## **R.F.A.No.176 of 2004** - **11 HASSAN (MINOR), S/O. LATE KIDAVU AGATTI ISLAND.** - **12 HUSSAIN (MINOR), S/O. LATE KIDAVU AGATTI ISLAND.** - **ADDL. APPELLANTS 8 TO 12 ARE REPRESENTED BY THIER POWER OF ATTORNEY HOLDER KONDINODA ABOOBACKER, S/O. MOHAMMED, AGATTI ISLAND (2ND APPELLANT)** **BY ADV SRI.T.H.ABDUL AZEEZ** ## **RESPONDENTS/PLAINTIFFS 1 TO 8 & DEFENDANTS 2 TO 22:** - **1 PATTINOYODA KOYA, S/O.THEKKILA ILLAM,** **ATTAKOYA, AGATTI, LAKSHADWEEP.** - **2 PATTINIYODA ABDU RAHEEM S/O. THEKKILA ILLAM, ATTAKOYA, AGATTI ISLAND, LAKSHADWEEP.** - **3 PATTINOYODA BI, D/O. THEKKILA ILLAM** - **ATTAKOYA, AGATTI ISLAND, LAKSHADWEEP.** - **4 KUTTILAMMADA CHERIYAKOYA S/O. THEKKILA ILLAM, MUTHUKOYA, AGATTI.** - **5 KUTTILAMMADA ATTABI** - **D/O. THEKKILA ILLAM ATTAKOYA, AGATTI ISLAND, LAKSHADWEEP.** - **6 KUTTILAMMADA HALEEMABI,** - **D/O. THEKKILA ILLAM MUTHUKOYA, AGATTI ISLAND.** - **7 KUTTILAMMADA AYSA, D/O. THEKKILA ILLAM MUTHUKOYA, AGATTI ISLAND.** 3 **R.F.A.No.176 of 2004** - **8 KUTTILAMMADA BI, D/O. MULLIPPURA ATTAKOYA, AGATTI ISLAND.** - **9 MAYAMCHETTA KHALID, S/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **10 MAYAMCHETTA KHADER, S/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **11 MAYAMCHETTA SIDDIQ, S/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **12 MAYAMCHETTA SHIHABUDHEEN S/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **13 MAYAMCHETTA AYSA, D/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **14 MAYAMCHETTA NAFEESA, D/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **15 MAYAMCHETTA AMINA, D/O. KITTENCHETTA KASMI, AGATTI ISLAND.** - **16 BIYYASABIYODA KIDAVE, S/O. KITTENCHETTA MOHAMMED KUNHI, AGATTI ISLAND.** - **17 BIYYASABIYODA ADHAM, S/O. KITTENCHETTA MOHAMMED KUNHI, AGATTI ISLAND.** - **18 BIYYASABIYODA BIYYASA D/O. KITTENCHETTA MOHAMMED KUNHI, AGATTI ISLAND.** - **19 BIYYASABIYODA RUKHIYATH D/O. KITTENCHETTA MOHAMMED KUNHI, AGATTI ISLAND.** - **20 BIYYASABIYODA UMMULKULUS D/O. KITTENCHETTA MOHAMMED KUNHI, AGATTI ISLAND.** 4 **R.F.A.No.176 of 2004** - **21 CHUNGAM KASSALI, S/O. KITTENDHETTA ABOOBACKER, AGATTI.** - **22 CHUNGAM ABDUL LATHEEF S/O. KITTENDHETTA ABOOBACKER, AGATTI.** - **23 CHUMGAM UMAIRATH, D/O. KITTENDHETTA ABOOBACKER, AGATTI.** - **24 CHUNGAM AMINA, D/O. KITTENDHETTA ABOOBACKER, AGATTI.** - **25 KITTENCHETTA HAMZA, S/O. LATHEEF, AGATTI ISLAND.** - **26 KITTENCHETTA SOUJATH S/O. LATHEEF, AGATTI ISLAND.** - **27 KITTENCHETTA SYED BUHARI AGATTI ISLAND.** - **28 KITTENCHETTA KHADER, AGATTI ISLAND.** - **29 KITTENCHETTA SAINABA, AGATTI ISLAND.** **BY ADV SRI.P.K.MOHAMMED PUZHAKKARA, R1 TO R8** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 24/11/2023, THE COURT ON 01/12/2023 DELIVERED THE FOLLOWING:** 5 **R.F.A.No.176 of 2004** ## **C.S.SUDHA, J.** **---------------------------------------------------R.F.A.No.176 of 2004** **----------------------------------------------------** **Dated this the 1[st] day of December, 2023** ## **J U D G M E N T** This appeal under Section 96 read with Order XLI Rule 1 CPC has been filed by defendants 23 to 29 against the judgment and decree dated 30/09/2003 in O.S.No.11/2001 on the file of the District Court, Lakshadweep. The respondents herein are the plaintiffs and defendants 1 to 22 in the suit. The parties in this appeal will be referred to as described in the suit. 2. According to the plaintiffs, the plaint schedule property having an extent of 13 ares comprised in survey no.1183/9, ward no.VIII, Agatti, Lakshadweep belonged to two brothers, namely, Attakoya and Muthukoya of Thekkilla Illam tharawad of Agatti island. The said tharawad had only the aforesaid two brothers as the last male members. Plaintiffs 1 to 3 are the children of Attakoya and plaintiffs 4 to 7 are the children and the eighth plaintiff, the wife of Muthukoya. Attakoya and Muthukoya died in the year 1997 and 1999 respectively. As per the custom followed generally in 6 ## **R.F.A.No.176 of 2004** Lakshadweep and specifically in Agatti island, the last male members of the tharawad have the right to deal with the property in the manner they wish including the right to assign and on their death, the property would devolve on their legal heirs. There was an oral partition of the property between the two brothers. However, the partition could not be registered as Attakoya fell ill. Hence, his children, that is, plaintiffs 1 to 3, and Muthukoya partitioned the tharawad properties among themselves and necessary entries caused to be entered in the survey records. After the death of the two brothers, the plaint schedule property has devolved on the plaintiffs. The defendants have no right in the plaint schedule property. The first defendant and others were the nadappu kudiyans of the predecessor-in-interest of the plaintiffs. In the said capacity they were in possession of land known as 'Chedi adiyum para padinjaru' , comprised in survey no.1263/6. When the jenmi-kudiyaan relationship was put to an end and the property partitioned, 3/4 share in the land known as 'Chedi adiyum para padinjaru' was allotted to the share of the defendants and the remaining 1/4 share to Attakoya and Muthukoya. After the demise of Attakoya in the year 1997, the first defendant trespassed into the plaint schedule property. The defendants had actually tenancy right only over the land known as 'Chedi adiyum para padinjaru'. However, without any bonafides, claiming that they have tenancy right over the plaint schedule 7 ## **R.F.A.No.176 of 2004** property also and demanding that their name also be included in the survey records, an application was moved before the Assistant to the Administrator, which application was objected to by Attakoya and the same is pending. Taking advantage of the pendency of the said proceeding, the defendants have trespassed into the plaint schedule property. 2.1. As per the order dated 05/11/1980 of the Assistant to the Administrator in M.C.No.317/1963, rough patta was granted in favour of Attakoya, the first defendant and his siblings. In the said proceedings, the first defendant never entered appearance or contested the matter. The aforesaid order was never challenged by the first defendant or by the other defendants. However, Attakoya challenged the order by preferring an appeal before the District Collector, Lakshadweep. When the said appeal was pending, Attakoya died. The proceedings was thereafter conducted by the plaintiffs. The Deputy Collector, Revenue Court, passed an order dated 03/03/2000 against which the respondents in the said appeal filed a review. An order dated 12/02/2001 has been passed in the review application. As per the order of the Deputy Collector, the parties were relegated to the civil court. The said order has not been challenged by the defendants. The defendants have no right in the plaint schedule property. The defendants in the proceedings before the civil court and the revenue courts have admitted 8 ## **R.F.A.No.176 of 2004** that the plaint schedule properties belong to the tharawad of Attakoya and Muthukoya. 2.2. Furthermore, Sayed Mohammed Koya, the elder brother of Attakoya, who was the eldest male member of the tharawad had preferred A.S.No.7/1969 before the Subordinate Judges' Court, Kavaratti against the order in M.C.No.317/1963 of the Assistant to the Administrator. In the said case also, it has been found that the plaint schedule property belongs to the tharawad of the plaintiffs and that the defendants have failed in proving any tenancy right in the property. However, the court in order to enable the defendants to prove their case, gave them an opportunity and remanded the matter to the Munsiff's Court, Amini. But the defendants failed to establish any right and hence the M.C. was thereafter dismissed. The aforesaid order in A.S.No.7/1969 and the judgment of the Munsiff Court dated 12/10/1970 are binding on the parties. Hence the claim of the defendants that they have tenancy right in the plaint schedule property is hit by the principle of _res judicata._ Neither the plaintiffs nor their predecessors-in-interest were parties in O.S.No.195/1969 on the file of the Munsiff Court, Amini, filed between the first defendant and the other defendants. Hence any order passed in the said case is not binding on the plaintiffs. As defendants staking claim of the property have trespassed into the property, the suit for 9 ## **R.F.A.No.176 of 2004** declaration that the plaint schedule property is the property of Thekkilla Illam tharawad in which neither the defendants nor their predecessors-ininterest have any right. On the strength of their title, the plaint schedule property is liable to be recovered from the possession of the defendants. 3. The first defendant died before the filing of the written statement and hence his legal representatives filed written statements in which they contended thus : Muthukoya was the last male member of Thekkilla Illam tharawad. The allegation that the property was orally partitioned between Attakoya and Muthukoya is incorrect and false. The further allegation that as Attakoya was sick, partition was effected between Muthukoya and plaintiffs 1 to 3 is incorrect and false. The first defendant is the nadappu kudiyan of the plaint schedule property and the property known as 'Chedi adiyum para padinjaru' comprised in survey no.1263/6. The jenmikudiyan relationship between the eldest male member of the family, namely, Sayed Mohammed Koya of the Thekkilla Illam tharawad was put to an end and the property comprised in survey no.1263/6 known as 'Chedi adiyum para padinjaru' was partitioned and 3/4 share allotted to the first defendant on the basis of which he has been in possession and enjoyment of the property since then. The plaint schedule property is only 1/3rd portion of a vast property by name, Beeran palli kizhakku. The first defendant is actually 10 ## **R.F.A.No.176 of 2004** entitled to 3/4 share in the property by name Beeran palli kizhakku. But on the basis of an understanding between the first defendant and Thekkilla Illam Sayed Mohammed Koya, the share of the first defendant was limited to 1/3, which property has been in the possession and enjoyment of the first defendant. This decision was taken during the period between 1962 and 1964. From the said time, the first defendant was in possession and enjoyment of the plaint schedule property as well as the property known by the name 'Chedi adiyum para padinjaru', in which he has made several valuable improvements. The allegation that after the death of Attakoya, the first defendant trespassed into plaint schedule property and reduced it into his possession is incorrect and false. The plaintiffs have no title or possession on the plaint schedule property. The order of the Assistant to the Administrator, Agathi island is not binding on the first defendant. The order in the appeal preferred against the said order by Attakoya and Muthukoya is unsustainable as the first defendant who was very much alive, has been shown as dead. The review petition filed by the son of first defendant has been disposed of without hearing him and the said fact came to the knowledge of the first defendant only when he received a copy of the plaint in the present case. As and when the copy of the order in the review petition is received, the first defendant intends to take steps against the same. As per 11 ## **R.F.A.No.176 of 2004** the order in the said appeal, persons who have no right in the property have been included in the survey records. However, it has been made clear in the said order itself that the order would be subject to the decision of the civil court. Nobody other than the first defendant has any right in the plaint schedule property. By the order of the Munsiff Court, Amini in M.C.No.317/1963, no prejudice has been caused to the first defendant. The order in M.C.No.317/1963 will not in any way affect the claim of the defendants. The claim of the defendants is not in any way hit by the principle of _res judicata_ as alleged by the plaintiffs. Before the said order itself, the first defendant was in possession and enjoyment of the plaint schedule property as well as the property known by the name 'Chedi adiyum para padinjaru'. If at all the plaintiffs had any right over the plaint schedule property, the same has been lost by adverse possession and limitation. Therefore, the defendants contended that the plaintiffs were not entitled to the reliefs prayed for. 4. On completion of pleadings, necessary issues were raised by the trial court, pursuant to which the parties went to trial. PW1 was examined and Exts.A1 to A4 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B16 were marked on the side of the defendants. The District Court, Lakshadweep on an appreciation of the oral and 12 ## **R.F.A.No.176 of 2004** documentary evidence and after hearing both sides, decreed the suit. Aggrieved, the defendants have come up in appeal. 5. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 6. Heard both sides. 7. The trial court in the impugned judgment after a detailed discussion, rejected the documents relied on by the defendants and relying on Exts.A1 to A4 found the case of the plaintiffs to be true. Though in the appeal memorandum, several grounds of challenge have been raised against the impugned judgment, at the time of arguments, the only argument advanced was that there has been no identification of the disputed property before the trial court. As the property has not been identified, the plaintiffs are not entitled to a declaration or recovery as prayed for. In support of this argument, reference has been made to the decisions of this court in R.S.A.No.1286/2009 dated 17/12/2009 and judgment dated 07/06/2011 in Second Appeal No.873/2000 as well as **Smriti Debbarma v. Prabha Ranjan Debbarma, 2022 LiveLaw (SC) 19** . _Per contra_ , it was submitted by the plaintiffs/respondents that the defendants/appellants never had such a 13 ## **R.F.A.No.176 of 2004** case in their written statement and that this is a new argument or case taken up in the appeal and hence the said argument cannot be countenanced. 8. According to the defendants, the trial court proceeded on the premise that the rival parties were staking their claim over the very same property. The trial court has erred in proceeding so, because the property claimed by the plaintiffs is known as 'Thekkilla Illam', whereas the property claimed by the defendants is known as 'Beeran Palli Kizhakku'. The properties are entirely two different properties. These properties have never been identified or their boundary identified. Therefore the trial court could not have granted decree in favour of the plaintiffs. By decreeing the suit, the trial court has committed a grave error which needs to be interfered with by this Court, argues the defendants. 9. There cannot be any quarrel on the proposition of law referred to by the defendants that the burden of proof to establish title lies upon the plaintiffs as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she/he claims relief. As per Section 101 of the Evidence Act, the burden of proving the fact rests with a party who substantially asserts in the affirmative and not on the party who is denying it. Onus of proof, no doubt shifts and the shifting is a continuous 14 ## **R.F.A.No.176 of 2004** process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The decisions relied on by the defendants are not applicable to the facts of the present case as the identity of the property was never ever challenged by the defendants before the trial court. They never had a case that the plaint schedule property and the property claimed by them are entirely different or two different properties. I have already referred to the pleadings of either side in detail in the light of the argument advanced in this appeal. On going through the pleadings in the written statement it is quite evident that there is absolutely no pleadings raised disputing the identity of the property as was sought to be argued before me in this appeal. The pleadings in a civil case will have to be specific. As stated in Order VII Rule 2 C.P.C. every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be. Order VIII Rule 2 C.P.C. says that the defendant must raise by his pleadings all matters which show the suit to be not maintainable, or that the transaction is either void or voidable in point of 15 ## **R.F.A.No.176 of 2004** law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, of facts showing illegality. As far as the denial of the case of the plaintiff is concerned, the denial in the written statement has to be specific. Order VIII Rule 3 says that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. 10. In the case on hand, there are no pleadings whatsoever challenging the identity of the property nor have the defendants raised a pleading that the plaint schedule property and the property claimed by them are entirely different or two different properties. It is too late in the day for the defendants to bring up such an argument at this stage. As no challenge has been raised regarding the findings of the trial court based on Exts.A1 to A4, I find no reasons to discuss them or interfere with the same. The trial court has given clear and cogent reasons to hold that the plaintiffs are infact the jenmis of the plaint schedule property and that the defendants have no tenancy right over the same. No infirmity or perversity in the appreciation of evidence by the trial court has been shown by the defendants/appellants 16 ## **R.F.A.No.176 of 2004** warranting an interference by this Court. In the result, the appeal _sans_ merit is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S. SUDHA JUDGE** ami/