T. V. Lakshmi and others v. Kalappurayil Kanikkot Shamsudeen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** **SA.No. 23 of 1999 (C) ----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-1998 IN AS 153/1994 of ADDITIONAL SUB COURT, THALASSERY** **AGAINST THE JUDGMENT AND DECREE DATED 11-07-1994 IN OS 271/1991 of MUNSIFF COURT, THALASSERY** **APPELLANTS/LEGAL REPRESENTATIVES OF PLAINTIFF – SUPPL. APPELLANTS: ------------------------------------------------------------------** **1. T.V. LAKSHMI, CHEMBILODE AMSOM, CHALA KIZHAKKEKKARA DESOM, KANNUR TALUK.** **2. T.V. SAHADEVAN, -DO-** **3. * T.V. RAJAN, -DO* DIED LRS IMPLEADED 4. T.V. SURESHBABU -DO* ADDL. APPELLANTS 5 TO 8 IMPLEADED:** **ADDL.R5. K. SUJITHA, W/O. LATE RAJAN, 'SREE NILAYAM”, THOTTADA. ADDL.R6 RAJANA RAJAN, D/O. LATE RAJAN, AGED 22 -DOADDL.R7 ANJALI RAJAN, -DO-DOADDL.R8 SANJOY RAJAN, S/O. -DOADDL.APPELLANTS 5 TO 8 ARE IMPLEADED AS LRS OF DECEASED 3RD APPELLANT AS PER ORDER DATED 28.9.04 ON IA.NO.397/04.** ## **BY ADV. SRI.R.PARTHASARATHY** **RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------** **KALAPPURAYIL KANIKKOT SHAMSUDEEN, CHEMBILODE AMSOM, THANNADA DESOM REP. THROUGH THE POWER OF ATTORNEY HOLDER A.K. ABDULLA, RESIDING AT KADAMBUR AMSOM, ADOOR DESOM.** **BY SR.ADV. SRI.S.SREEKUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 6.6.2017, THE COURT ON 12-07-2017 DELIVERED THE FOLLOWING:** ## **K.RAMAKRISHNAN, J.** ## **-----------------------------** ## **S.A. No.23 of 1999** ## **---------------------------Dated this the 12[th] day of July, 2017** ## **J U D G M E N T** ## **------------------** Plaintiff in O.S.No.271/1991 on the file of the Munsiff Court, Thalassery is the appellant herein. The suit was one filed by the plaintiff for permanent prohibitory injunction and damages with following allegations:- It is alleged in the plaint that the plaint schedule property originally belonged to Edakkad Devaswom and it was obtained on lease by a tavazhi of one Kalariyadath Assankutty as per Marupat of the year 1922. The property was partitioned among the members of the tavazhi and it was jointly allotted to the share of Kalariyadath Mammu and others and they assigned the same in favour of Assankutty and his brother Abdulkader in the year 1947. Thereafter Abdulkader assigned his half right in favour of other co-owner Assankutty as per assignment deed dated 21.11.47. Thus Assankutty became absolute owner of the property. Thereafter the said Assankutty also assigned the property to one Kadakkandy Abdulla as per assignment deed dated 26.04.51 and he later assigned the same to the plaintiff as per assignment deed dated 8.6.70. Thereafter she obtained 2 S.A.No.23/1999 Jenm right through Land Tribunal as per order in O.A.9664/75 and she has been in possession and enjoyment of the same from 1970 onwards. She was residing 3 kms away from the plaint schedule property. The defendant was residing near the plaint schedule property and he without any right in the property was removing earth from the southern side of the plaint schedule property to fill his property. It was also learned that he was trying to construct a building there and he had no right over the same. Plaintiff being an old lady, was unable to prevent the defendant from doing his illegal activity in the plaint schedule of property. On account of removal of earth from the property, she sustained damage, which she estimated at Rs.500/-, which the defendant was liable to pay to her. The correct survey number of the property is re-survey No.24/7 and old survey number is 68/5. In the earlier documents the re-survey number was wrongly shown as 24/3 and it was corrected in her assignment deed in the year 1970. The cause of action for the suit arose on 01.10.1991, when the defendant attempted to trespass into the property and removed earth from the same. So the plaintiff filed the above suit for permanent prohibitory injunction restraining the defendant 3 S.A.No.23/1999 from trespassing into the plaint schedule property and any act of waste or causing any damage and also for a decree directing him to pay Rs.500/- for damages with interest and cost. 2. The defendant entered appearance and filed written statement contending as follows:- The suit is not maintainable. The defendant never trespassed into the property of the plaintiff nor had any intention to do the same. Out of the 45 cents shown in the plaint schedule property, he has been in possession of 1¼ cents where there was already a basement of shop in existence. Originally the father of the defendant Abdurahiman Haji was in possession of the property and he purchased the same in a court auction held in E.P.813/67. The sale sannad was issued in favour of his father, after the auction in his favour on depositing the entire amount bid by him. So his father was in possession of the property since 1967 onwards. After his death, the right of the property devolved on his wife and children including the defendant who later partitioned the same as per partition deed dated 25.2.82 and this property along with other properties were allotted to his daughter Kadeessu and this item was shown as item No.4 in the 4 S.A.No.23/1999 partition deed and she was in possession of the same. Later Kadeessu assigned her right in the property in favour of the defendant as per assignment deed dated 27.08.1987 and from that day onwards, he has been in possession and enjoyment of the same. The re-survey number of the property is 24/3 and not 24/7 as described in the plaint. It is situated on the southern side of the plaint schedule property and he had never trespassed into any portion of land in excess of 1 ¼ cents obtained by him as mentioned above. He was paying tax for the land from 1988 onwards. The allegation that he was residing near the property was not correct. In fact he is residing 2 kms away from the plaint schedule property. The allegation that he dug and removed earth from the plaint schedule property for the purpose of filling another property of his was not correct. He wanted only to construct pillars in the property for constructing a shop. The allegation that the plaintiff suffered damages on account of the act of the defendant was not correct. Since he has been in possession of the property and the plaintiff has no possession over this portion of the property, she is neither entitled to get injunction nor damages as claimed by her in the plaint and he 5 S.A.No.23/1999 prayed for dismissal of the suit. 3. Subsequently written statement was amended correcting the survey number of the property as 24/7 from 24/3. Except the survey number, according to the defendant all other descriptions mentioned in the sale sannad tally with the descriptions of the property. The written statement was amended as stated above as per order in I.A.177/94 4. On the basis of the pleadings, following issues were framed by the trial court for consideration: “ _1. Whether the plaintiff is in possession of the suit property? 2. Reliefs and costs?”_ 5. PWs1 and 2 were examined and Exts.A1 to A15 and C1 to C4 were marked on the side of the plaintiff. Dw1 was examined on the side of the defendant and Exts.B1 to B6 were marked on his side. 6. After considering the evidence on record, the trial court found that the plaintiff had failed to prove her possession over 1 ¼ cents claimed by the defendant. Since the title of the plaintiff over this portion was challenged without seeking for declaration of her right, title and possession, the plaintiff is 6 S.A.No.23/1999 not entitled to get the reliefs claimed and dismissed the suit. 7. Dissatisfied with the dismissal of the suit, plaintiff filed appeal before the District Court, Thalassery and the same was made over to Sub Court, Thalassery where it was renumbered as A.S.153/94 and further made over to Additional Sub Court, Thalassery for disposal. During the pendency of the appeal, the appellant died and his legal representatives were impleaded as additional appellants as per order in I.A.557/97. 8. The appellate court after hearing both sides, dismissed the appeal confirming the decree and judgment passed by the trial court dismissing the suit. Dissatisfied with the same, the present second appeal has been filed by the appellant/plaintiff before the court below. 9. The following substantial questions of law have been formulated on the basis of the Appeal Memorandum by this Court while admitting the appeal. i. When on the basis of the title deed of the plaintiff and the report of the commissioner the disputed pot is included and is part of the remaining portion of the land in the admitted possession of the plaintiff, is it necessary in law to produce documentary evidence in proof of possession of a small extent of 7 S.A.No.23/1999 land included in the boundaries of the plaintiffs title deed especially when the title deed produced by the defendant relates to an entirely different property? ii. Was the trial court justified in allowing amendment of written statement so as to enable the defendant to withdraw from the admission already made in the written statement to the effect that his property is situated in RS 24/3 and he is in possession of that property? iii. Have not the courts below gone wrong in ignoring the principle that when both sides adduced evidence on a disputed question of fact the case must be decided an appreciation of evidence adduced on both sides and the evidence of defendant cannot be ignored by stating that the burden of proof is entirely on the plaintiff? 10. Earlier the appeal was dismissed. Later it was restored to file and supplemental appellants 5 to 8 were impleaded (as legal representatives of deceased 3[rd] appellant) as per order in IA.No.397/2004. 11. Heard Sri. Parthsarathy, learned counsel appearing for the appellants and Sri.S. Sreekumar, learned senior counsel appearing for the respondent. 12. The learned counsel appearing for the appellants submitted that both the courts below have failed to appreciative the 8 S.A.No.23/1999 legal question arising in this case. The plaintiff's predecessor was in possession of the property since long time evidenced by Exts.A1 and A2 documents and the plaintiff purchased the property from one Abdulla as per Ext.A3 assignment dated 8.6.1970 and she obtained purchase certificate also and she has been paying land revenue for the same evidenced by Ext.A12 series revenue receipts. The property is situated in Sy.No.24/7 and the plaintiff has been assigned with 45 cents of land by her predecessor as per Ext.A3 document excluding the areas covered by the marupat mentioned therein evidenced by Exts.A5 to A10. Further the sale sannad Ext.B1 will go to show that the property is in Sy.No.24/3 which is entirely a different property and as such, the defendant cannot be said to be in possession of any land within the property covered by Ext.A3. When the plaintiff is in possession of large extent of area in one survey number, she need not prove that each and every inch of property in the survey number is in her possession. The court below had wrongly calculated the extent of property covered by Exts.A5 to A10 and even if the disputed extent of 1¼ cent is included, she is not in possession of 45 cents and as such, it cannot be said that any extent of property was excluded from the property of the plaintiff. According to the learned counsel, the courts below were not justified in dismissing the suit. The learned counsel had relied a decision reported in 9 S.A.No.23/1999 _**Achuthan Unni v. Vally**_ (1962 KLT 1010 )in support of his case. 13. On the other hand, the learned senior counsel appearing for the respondent submitted that even as per the earlier title deeds of the plaintiff, the resurvey number was shown as 24/3 and it was later corrected as 24/7 only in Ext.A3 document. The old survey number of both the properties was 68/5 and as such, the resurvey was wrongly shown in the sale sannad and all other descriptions tally with the disputed property identified by the Commissioner and as such, he has been in possession of the property from 1967 onwards through his predecessor. Since the plaintiff did not prove her possession over the disputed property, the court below was perfectly justified in dismissing the suit holding that without a prayer for declaration of title and possession, the suit for injunction alone is not maintainable and rightly dismissed the suit and this was rightly confirmed by the appellate court as well. He had relied on the decisions reported on _**Rame**_ _**Gowda (dead) by Lrs and another v. M. Varadappa Naidu (dead) by Lrs and another**_ (2004 (1) SCC 769), _**Thimmaiaha v. Shabira and others**_ (2008 (4) SCC 182) and _**Union of India and others v. Vasavi Cooperative Housing Society Ltd. and others**_ (2014 (2) SCC 269) in support of his case. 14. The case of the plaintiff in the plaint was that the 10 S.A.No.23/1999 plaintiff's predecessor namely tavazhy of Kalariyedath Aassankutty obtained the property from Edakkat Devaswom as per marupat of 1922 and it was partitioned among the tavazhi members and alloted to the share of Kalariyedath Mammu and others, who assigned the same in favour of one Assankutty and Abdulkhader in the year 1947 and said Abdulkhader assigned his right in the property in favour of his co-owner brother as per Ext.A1 assignment deed dated 21.11.1947 and said Assankutty assigned his right over the property to one Kadaenkkandi Kalathil Abdulla as per Ext.A2 assignment deed dated 26.4.1951, who assigned the same in favour of the plaintiff as per Ext.A3 assignment deed dated 8.6.1970. In Exts.A1 and A2, the old survey number was shown as 68/5 and the resurvey number was shown as 24/3 and the description of the property was shown as “Madathl Parambil Kizhakke Amsom Parambu showing the measurement as 30½ east west and 18 south north, six feet koles with boundaries on the east mundayadankandy parambu, south nirath, west the property of the thavazhy of the assignor and north Kunhumpidukka veedu parambu”. But in Ext.A3, the resurvey number was corrected as 24/7 and extent was shown as 45¾ cents. Ext.A4 is the purchase certificate issued in favour of the plaintiff on the basis of Ext.A15 order in OA.No.12086/76 of Land Tribunal No.II, Kannur, there resurvey number was shown as 24/7 and extent was shown as 11 S.A.No.23/1999 18.51 Ares. Except south, boundary on other side was shown as paramba only. Southern boundary was shown as road. But the application number mentioned in Ext.A4 purchase certificate is different as shown in Ext.A15 order of the Land Tribunal and the name of the applicants are also different. The description of property shown in Ext.A15 is also different. Exts.A5 to A10 are the marupats by which a portion of the property was given to the tenants for putting up buildings and they are in possession of those areas by putting up buildings. It is clear from the averments in Ext.A3 itself that the plaintiff was given possession of the property excluding the building and area covered as marupats mentioned above. Ext.A14 is the Adangal extract of old survey No.68/5 corresponding to RS. No.24/7 and the total extent shown is 50 cents. 15. The case of the defendant was that his father Adbdul Rahman Haji obtained 1¼ cents of land within the plaint schedule property as per Ext.B1 sale sannad issued in EP.No.168/66 in SC.No.218/1965 of Munsiff Court, Thalassery where the description of the property was shown as ÎÀJßW Õ{MßW ÉùOí ®K ÎÀJßW µá¿á¢ÌçÉV ©U ÎÀJßW Õ{MßW ÉùOßW æÄæA ÍÞ·¢ ØíÅÜÕᢠ¥ÄßÜáU Éà¿ßµÏᢠwith measurement 7¼ x 12¾ carpenter koles in old Sy.No.68/5 and RSNo.24/3 with boundaries on the east the 12 S.A.No.23/1999 remaining property, south road, west shop room and north the remaining property and it was mentioned that the right sold was the right obtained by the judgment debtor in that case as per registered partition deed dated 6.7.1960 with a building therein. Ext.B2 is the delivery certificate issued pursuant to Ext.B1 sale sannad and Ext.B3 is the receipt given for obtaining possession of the property. 16. The legal heirs of the defendant had partitioned the property and his property was allotted to Kadeessu as item No.4. This, the defendant obtained as per Ext.B5 document. It is seen from Exts.B1 to B4 that the old survey number was shown as 68/5 and resurvey number was shown as 24/3. Ext.B6 is the tax receipt paid in respect of this property in the name of Kadeejumma where the survey number was shown as 24/7. Even in the earlier title deeds of the plaintiff, the old survey number was shown as 68/5 and resurvey number was shown as 24/3, but only in Ext.A7 and Ext.A3 the resurvey number was shown as 24/7. Ext.A14 adangal extract shows that the resurvey number corresponding to old survey number 68/5 is 24/7 and it was having a total extent of 50 cents. But the plaintiff is claiming to be in possession of only 45 cents. Further a reading of Ext.A3 will go to show that the extent of 45 cents was mentioned in the description of property, but in the body it was mentioned that it does not include 13 S.A.No.23/1999 the properties covered by marupats, Exts.A5 to A11 produced by the plaintiff himself. It will be seen from the first Commissioner's report that at the time when the Commissioner inspected the property, mud was already taken and pits were dug for putting up pillars and the disputed plot is shown as a vacant plot in between two shop rooms on the southern side of the remaining property of the plaintiff. In Ext.C4 plan, the Commissioner had shown the disputed plot as plot B in yellow shaded portion. The plan shows the entire 50 cents of land, of which Plot A admittedly in the possession of the plaintiff is having an extent of 37½ cents and plot A1 admittedly belonged to one Sarasan and not in the possession of the plaintiff which is having an extent of ¾ cents. Further Plots A3,C, C1 and D are plots covered by buildings which is admittedly property covered by marupats, possession of which was not given to the plaintiff. So it is clear from this that if these properties are excluded, then there is no possibility of the plaintiff getting 45 cents of land in his possession as per Ext.A3. Further on the basis of Ext.A14 adangal extract , the court below had come to the conclusion that the resurvey number in respect of corresponding old Sy.No.68/5 is 24/7 and not 24/3 and so, the courts below were perfectly justified in coming to the conclusion that the correct survey number of the property obtained by the predecessor in interest of the defendant would only be 24/7 and 14 S.A.No.23/1999 not 24/3 and that could only be a mistake and came to the conclusion that it is part of the property claimed by the plaintiff and it is in the possession of the defendant 17. It is only a suit for injunction simplicitor. When the defendant denies tittle of the plaintiff over the disputed plot and claims title himself, then the plaintiff's remedy is to file a suit for declaration of title and possession and if she is found to be out of possession, then for recovery of possession and the suit for injunction simplicitor is not maintainable. This was so held in the decision reported in _**Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and Others)**_ (2008 KHC 6249) by the Apex Court. 18. Further in the decision reported in _**Rame Gowda (dead) by LRs v. M. Varaadappa Naidu (dead) by LRs and another**_ (2004 (1) SCC 769) it has been held that “settled possession gives right to possession such that even the rightful owner may only recover it by taking recourse to law holding that possessory title is good against all the world but the right owner and if he is possession of the property, even the rightful owner cannot trespass into the property, but his remedy is only to seek for recovery of possession” following the decision reported in _**Ramesh Chand Ardawatiya v. Anil Panjawani**_ (2003 (7) SCC 350) and _**Lallu Yashwant Singh v. Rao Jagadish Singh**_ (AIR 1968 SC 15 S.A.No.23/1999 620). The same view has been reiterated in the decision reported in _**Thimmaiah v. Shabira and others**_ (2008 4 SCC 182). 19. In the decision reported in _**Union of India and others**_ ## _**v. Vasavi Co-operative Housing Society Limited and others**_ (2014 (2) SCC 269) it has been held that: _“In a suit for declaration of title and possession, burden is on the plaintiff to establish the case irrespective of whether defendants proved their case or not. In the absence of establishment of its own title, the plaintiff must be non-suited even if title set up by the defendants is found against them. Weakness of the case set up by the defendants cannot be a ground to grant relief to the plaintiff”._ 20. In this case, it was admitted by PW1 that in RS.No.24/7 the total extent of property is 50 cents and he did not know in whose possession the remaining 5 cents is. Further it will be seen from the Commissioner's report and also recitals in Ext.A3 that plaintiff would have got possession of the property excluding the building covered by marupats and that extent was shown by the Commissioner in Ext.C4 plan. No attempt was made by the plaintiff to identify that the disputed properties are not part of Ext.A3 document and she is entitled to possess 45 cents excluding the buildings covered by the marupats mentioned in her title deed. The plaintiff wants a decree only on on the basis of possession as she had paid only court fee under section 27(c) of 16 S.A.No.23/1999 the Kerala Court Fees and Suit Valuation Act and there was no prayer for declaration of title in respect of disputed property as well. The evidence of PW1 is not helpful to prove that the plaintiff is in possession of the disputed property shown by the Commissioner in yellow shaded portion in Ext.C4 plan. Further except the resurvey number, the boundaries mentioned in Exts.B1 and B4 almost tally with the boundaries shown by the Commissioner in respect of disputed plot as per Ext.C4 plan. Since both have produced revenue receipts alleging payment of land revenue in respect of the disputed plot, that is not helpful to decide as to who is in possession of the property. ## 21. The dictum laid down in the decision reported in _**Achuthan Unni v. Vally**_ (1962 KLJ 1010 ) is that: _“The survey and demarcation of lands by the State have a purpose, they are intended to identify the different pieces of land so as to regulate the rights of landholders. Rights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being coextensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts that contrary to prove by positive evidence that a defined portion thereof is in is adverse possession and has been lost to the owner thereof”._ 17 S.A.No.23/1999 The above decision is not applicable to the facts of this case. 22. Since the plaintiff did not amend the plaint seeking declaration of title and recovery of possession especially when the Commissioner's report shows that the defendant is in possession of the disputed land of 1¼ cent shown as yellow shaded portion in Ext.C4 plan and on the basis of the evidence, it appears to be part of the same property and who is having title cannot be decided in the suit without a proper prayer for declaration of title. Since the defendant contended that he has no intention to trespass into any portion of the plaintiff's property other than 1¼ cent claimed by him in the same survey number and the courts below found that he is found to be in possession of that area, the courts below were perfectly justified in denying the relief of injunction to the plaintiff and rightly dismissed the suit. So the courts below have properly appreciated the evidence and considered the legal aspects in the right perspective and decided the case on the basis of facts which do not require any interference at the hands of this Court as there is no substantial question of law arises for consideration and it cannot be said to be perverse as well. So the appeal lacks merit and the same is liable to be dismissed. In the result, the second appeal fails and the same is hereby dismissed. The decree and judgment passed by the appellate court confirming the decree and judgment passed by the trial court 18 S.A.No.23/1999 dismissing the suit are hereby confirmed. Considering the circumstances of the case, parties are directed to bear their respective costs in the appeal. The appellant is at liberty to pursue for her further remedy in accordance with law. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge rmm/cl 19 S.A.No.23/1999 **K.RAMAKRISHNAN, J. ----------------------S.A. No.23 of 1999 ---------------------12[th] day of July, 2017 J U D G M E N T ------------------**