Sreedharan v. Vasu, Sivasankaran and Surendran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2017/12TH MAGHA, 1938** **RSA.NO. 425 OF 2005 (A)** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 19-01-2005 IN AS 16/2001 OF THE II ADDITIONAL DISTRICT COURT,PALAKKAD** **AGAINST THE JUDGMENT AND DECREE DATED 25-08-2000 IN OS 742/1998 OF THE ADDITIONAL MUNSIFF COURT, PALAKKAD** **APPELLANT/RESPONDENT/PLAINTIFF:** **-------------------------------** **SREEDHARAN, S/O. VELANDI, KULATHILPALLA HOUSE, MUTTIKULANGARA, PUTHUPPARIYARAM AMSOM, PALAKKAD TALUK AND DISTRICT.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **RESPONDENTS/APPELLANTS/DEFENDANTS: ---------------------------------** **1. VASU, S/O. APPU, PALAPOTTAKALAM, MUTTIKULANGARA, PUTHUPPARIYARAM AMSOM, PALAKKAD TALUK & DISTRICT.** **2. SIVASANKARAN, S/O.VASU, DO. DO.** **3. SURENDRAN, S/O.VASU, DO. DO.** **R1 -R 3 BY ADVS. SRI.R.HARIKRISHNAN SRI.E.RAMACHANDRAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 425 of 2005** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 1st day of February,2017 ## **J U D G M E N T** The appellant is the plaintiff in O.S. No.742 of 1998 on the files of the Munsiff's Court, Palakkad and the respondents are the defendants in the said suit. The aforesaid suit was one for injunction, restraining the respondents from interfering with the peaceful possession and enjoyment of the plaint schedule property, by the plaintiff and his men and for other reliefs. 2. The plaintiff contended that the plaint schedule property originally belongs to one 'Thatha', the mother of the defendant No.1 from whom the plaintiff obtained the same on lease. After the demise of 'Thatha', the said property devolved upon her sons, the defendants in the Original Suit. On ## **R.S.A. No. 425 of 2005** ## **-: 2 :-** 19.08.1974, Ext.A4 receipt was issued by the 1[st] defendant and his brothers in favour of the plaintiff on receipt of compensation and they jointly filed an application before the Land Tribunal, seeking purchase certificate in the name of the plaintiff and the Land Tribunal after conducting an enquiry, granted Ext.A2 purchase certificate to him and thereafter, the plaintiff is in absolute possession and enjoyment of the plaint schedule property. But, the defendants are making obstruction to the enjoyment of the said property, by the plaintiff and the suit for injunction was filed. 3. The defendants filed written statement, contending that the plaintiff was a tenant under the defendants and denied the plaint averment that the plaintiff is in actual possession and enjoyment of **R.S.A. No. 425 of 2005** ## **-: 3 :-** the plaint schedule property. According to them, the purchase certificate has been obtained fraudulently and they were unaware about the proceedings in O.A. No.485 of 1974. Hence, Ext.A2 purchase certificate is not binding on them. They further claimed that they are in actual possession and enjoyment of the plaint schedule property. Hence, they prayed for the dismissal of the suit. 4. On the aforesaid rival pleadings, both parties adduced evidence, consisting of the oral testimony of PW1, DWs1 and 2 and Exts.A1 to A4, B1 to B2. After evaluating the aforesaid evidence, the trial court decreed the suit, as prayed for. The lower appellate court reversed the findings of the trial court and allowed the Appeal. Thus, the divergent findings, whereby the trial court decreed the suit and the lower appellate court allowed the ## **R.S.A. No. 425 of 2005** ## **-: 4 :-** Appeal are under consideration of this Court, on the basis of the questions of law framed in this Appeal. 5. Heard the learned counsel for the appellant. 6. Going by the judgment passed by the trial court, it could be seen that the trial court relied on Exts.A1, A2 and A4, for arriving at a finding that the plaintiff is the title holder in possession of the plaint schedule property. But, going by the judgment passed by the lower appellate court, it could be seen that the lower appellate court discarded Exts.A1, A2 and A4 for different reasons. Therefore, the question to be considered in this Appeal is, whether the lower appellate court is justified in discarding Ext.A1, A2 and A4? Ext.A1 is the certified copy of the proceedings in O.A. No.685 of 1974 on the files of the Land Tribunal, Palakkad. ## **R.S.A. No. 425 of 2005** ## **-: 5 :-** Ext.A2 is the certified copy of the purchase certificate issued by the Land Tribunal, Palakkad and Ext.A4 is the receipt dated 19.08.1974 issued by the defendants to the plaintiff. 7. Going by Ext.A4 proceedings, it could be seen that the application seeking purchase certificate was filed jointly by the plaintiff and defendants and the defendants are described as 'landlords' and the plaintiff is described as 'tenant'. The proceedings in Ext.A1 shows that on receipt of the joint application, the authorised officer made an enquiry under Section 105A of the Kerala Land Reforms Act, 1964 _(hereinafter referred to as 'K.L.R. Act')_ and in that enquiry, the authorised officer reported that the particulars furnished in the joint statement are correct and that all persons interested in the land comprising **R.S.A. No. 425 of 2005** ## **-: 6 :-** the holding had affixed their signatures in the joint statement, and that the cultivating tenant, whose name is specified in the statement is the cultivating tenant entitled to the assignment of the right, title and interest of the land owner in respect of the holding. Thus, on the basis of the said report, the Land Tribunal issued Ext.A2 purchase certificate in favour of the plaintiff under Section 72K of the K.L.R. Act. But, the lower appellate court doubted Ext.A1 proceedings on a mere finding that Ext.A1 is a certified copy only. This Court does not find any reason to suspect the genuineness of Ext.A1, as the same is issued by the Land Tribunal under its signature and seal. Thus, the findings of the lower appellate court stands, without any basis. Ext.A2 is a secondary evidence as contemplated under Section 63 of the Indian Evidence ## **R.S.A. No. 425 of 2005** ## **-: 7 :-** Act, 1872 and the same is admissible in evidence under Section 65 of the said Act, as is a public document, as contemplated under Section 74(i)(ii) of the said Act. Moreover, according to Section 77 of the Indian Evidence Act, 1872, certified copy may be produced in proof of the contents of the public document. 8. Coming to the legal validity of Ext.A2 purchase certificate, it is to be remembered that Ext.A2 is a certificate issued under Section 72K(2) of the K.L.R. Act and according to the said Section ' _the certificate of purchase issued under subsection (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates'._ According to Section **R.S.A. No. 425 of 2005** ## **-: 8 :-** 4 of the Indian Evidence Act, 1872, _'when one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it'._ 9. In _**Ramakke and Others v. Gopi and Others**_ [2011(3) KHC 491], this Court held that ' _once purchase certificate issued, the person in whose name it is issued is to be considered as the person in possession of the property: Such certificate of purchase is conclusive proof that recipient is the cultivating tenant of the property'._ 10. Indisputably, the purchase certificate is a conclusive proof of tenancy between the landlord and tenant. Further in _**Patinhare Purayil Nabeesumma v. Miniyatan Zacharias**_ [2008 KHC 6089] this Court held **R.S.A. No. 425 of 2005** ## **-: 9 :-** that presumption of possession when can be drawn under Section 110 of the Evidence Act, in favour of the cultivating tenant, who obtained purchase certificate under Section 72K of the K.L.R. Act. But, the lower appellate court, without considering the legal validity, conclusiveness and the presumption that arise therefrom, disbelieved the same on a mere finding that Ext.A2 is also a certified copy. Going by Ext.A2, it is seen that Ext.A2 is a certificate issued by Special Tahsildar, Land Reforms, who was acting as Land Tribunal, under the seal and signature. I do not find any reason to doubt the genuineness of Ext.A2 purchase certificate. More over, Exts.A1 and A2 are certified copies of the proceedings and the certificate issued thereunder from the office of the Land Tribunal. According to Section 79 of the **R.S.A. No. 425 of 2005** ## **-: 10 :-** Indian Evidence Act, 1872, it could be presumed that Exts.A1 and A2 are genuine documents. More importantly, being public documents coming under Section 74 of the Indian Evidence Act, the same is admissible in proof under Section 77 of the said Act. There is no evidence from the part of the defendants to controvert the said proceedings, except the bare statement in the written statement that Ext.A2 was issued fraudulently. According to Order VI Rule (4) of the Code of Civil Procedure, a party relying on fraud has to give particulars in the pleadings alleging fraud. But, in the instant case, except mere assertion of fraud, no particulars have been furnished. 11. Coming to Ext.A4, it shows that Ext.A4 is a receipt issued by the defendants evidencing the receipt of compensation for the issuance of Ext.A2 ## **R.S.A. No. 425 of 2005** ## **-: 11 :-** purchase certificate in the name of the plaintiff. Going by the trial court judgment, it could be seen that the trial court compared the signatures found in Exts.A1 to A4 with that of the defendants found in the Vakalath and the written statement and found that the signatures are identical and there is no reason to doubt the genuineness of the signatures. Thus, the trial court have given sufficient reasons, both legal and factual, to arrive at a finding that Exts.A1 to A4 are reliable documents to prove the claim of the plaintiff that they are in possession and enjoyment of the property under Exts.A1 to A4. It follows that the lower appellate court without considering the legal validity and presumptions that arise therefrom under Exts.A1 to A4 disbelieved the same on mere surmises and conjectures. Thus, the lower appellate court went wrong in setting aside **R.S.A. No. 425 of 2005** ## **-: 12 :-** the judgment and decree passed by the trial court. Consequently, the judgment and decree passed by the lower appellate court are set aside and the judgment and decree passed by the trial court will stand restored to files. Consequently, the Original Suit will stand decreed as prayed for. This Regular Second Appeal will stand allowed. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**