Thevikunjeli v. Lukose Isaac and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932** **SA.No. 292 of 1996(B)** **-------------------------AS.12/1988 of SUB COURT,KOTTARAKKARA OS.185/1982 of MUNSIFF COURT, PUNALUR** **....................** **APPELLANT(S)/APPELLANT/PLAINTIFF** **---------------------------------------------THEVIKUNJELI, PUTHUVAL PUTHERN VEEDU, NEAR AMBALAKDAVU, KULATHUYPUZHA MURI, PATHANAPURAM TALUK, QUILON DISTRICT.** **BY ADVS. SRI.TKM.UNNITHAN SRI.P.G.GANAPPAN** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS** **-------------------------------------------------------** - ***1. LUKOSE ISSAC, RESIDING AT AMAKKULAM CHATHUPPU, KULATHUPUZHA MURI, KULATHUPUZHA VILLAGE, PATHANAPURAM TALUK, QUILON DISTRICT (DIED.LR'SRECORDED IMPLEADED)** - ***2. SARA ANNA, W/O. LUKOSE ISSAC, DO. DO.** **3. ANNA MARIKUTTY, D/O. LUKOSE ANNA, DO. DO.** - **ADDL. R4 TO R6 IMPLEADED** **4. ISSAC BABY, AGED 42, S/O. LUKOSE ISSAC RESIDING AT AMAKKULAM CHATHUPPU, KULATHUPUZHA MURI, KULATHUPUZHA VILLAGE, PATHANAPURAM TALUK, QUILON DISTRICT.** **5. ANNA KUNJAMMA, D/O. LUKOSE ISSAC, AGED 34, DO. DO.** **6. BAVAS ISSAC, S/O.LUKOSE ISSAC, AGED 26, DO. DO.** - **R2 & R3 ARE RECORDED AND ADDL.R4 TO R6 ARE IMPLEADED AS LR'S OF DECEASED R1 AS PER ORDER DATED 28/09/2004 IN C.M.P. NO. 876/1996.** **R1-5 BY ADVS. SRI.G.HARIHARAN SRI.V.RAVEENDRAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs/** ## **HARUN-UL-RASHID, J. -----------------------S.A.No.292 Of 1996 ---------------------Dated this the 2[nd] day of November, 2010.** ## **J U D G M E N T** **P** laintiff in O.S.No.185/1982 on the file of the Munsiff Court, Punalur is the appellant. The appeal is directed against the judgment and decree dated 29.11.1995 in A.S.No.12 of 1988 on the file of the Sub Court, Kottarakkara. The parties are hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. The substantial questions of law formulated in the appeal are as follows: a) Whether the lower appellate court was right in vacating the trial court's finding of appellant's possession of the plaint schedule property in the absence of any formal challenge to the said finding by the respondents? b) Whether the lower appellate court was right in reappraising the evidence regarding possession in the absence of a challenge to the finding of possession by the appellant in the appeal before the lower appellate court? ## **S.A.No.292 Of 1996** ::2:: c) Whether the lower appellate court was right in relying on Exts.B1 & B2 assignment proceedings in favour of the 1[st] respondent whereas the assignment in favour of the 1[st] respondent was cancelled by Ext.A7 dated 24.1.1986? d) Is not the non reference to Ext.A7 a material irregularity which has resulted in miscarriage of justice so far as the appellant is concerned, in the disposal of the appeal by the appellate court? e) Is the lower appellate court right in relying on the documents produced in support of the defence in the absence of any superior claim in respect of the property in favour of the defendants-respondents? 2. Plaint schedule item No.1 is 16 cents of land in survey No.745/1/1310. Plaint schedule item No.2 is a shed situated in item No.1. Plaintiff's case is that the plaint schedule property is part of a larger extent of 2.10 acres in the same survey number and was in possession of one Madathiamma Parvathiamma as kuthakappattom lessee. She executed Ext.A1 settlement deed dated 17.7.1961 in favour of Palvarnan Pillai and others. The 5[th] ## **S.A.No.292 Of 1996** ::3:: schedule in Ext.A1 settlement deed is 36 cents of land allotted to two minors by name, Ravi & Vanitha. The case of the plaintiff is that the said 36 cents of land was sold by the father of the minors for an on behalf of the minors to the plaintiff in the year 1961 and from the date of sale the plaintiff is in possession of the property. The plaintiff has put up a small building and residing in that property. It is their case that for conducting tailoring shop in the property for her daughter, item No.2 shed was put up in the year 1965. Subsequently, plaintiffs applied for assignment of the property. Ext.A2 is the order of assignment. Ext.A3 is the patta issued after passing Ext.A2 order of assignment. Ext.A3 patta is dated 8.6.1965. Ext.A3 patta shows that an extent of 36 cents in survey No.745/1/1310 was assigned in the name of the plaintiff. 3. Plaintiff's case is that after his daughter's marriage, plaint schedule item No.2 has become vacant and it was given to the third defendant for conducting tailoring shop. The third defendant is the daughter of defendants 1 & 2. First defendant is the brother of the plaintiff. Second defendant is his wife. It is ## **S.A.No.292 Of 1996** ::4:: stated in the plaint that the plaint schedule item No.2 was permitted to be occupied by the third defendant on the specific understanding that she will vacate it as and when demanded by the plaintiff. It is stated in the plaint that taking advantage of the occupation of plaint item No.2, plaintiff's brother applied for assignment of 16 cents of land. He filed O.A.No.153 of 1976. The plaintiff on coming to know about the assignment preferred appeal challenging the assignment order. The appellate authority by order dated 24.1.1986 allowed the appeal, cancelled the assignment and remanded the case with a direction to the Tahsildar to decide the case afresh in the light of the final judgment and decree to be passed in the civil suit between the parties. The first defendant filed a revision petition before the Revenue Board. The revisional authority by order dated 2.1.1989 dismissed the revision finding that no grounds are made out for interference. Ext.P8 is the order of the revisional authority. 4. The defendants denied the title and possession of plaintiff and set up a rival title. The plea of the plaintiff that the defendants started to occupy the building under the permission ## **S.A.No.292 Of 1996** ::5:: granted by her was denied by the defendants. 5. Suit property is having an extent of 36 cents comprised in survey No.745/1/1310. Plaintiff claims title to the property on the basis of documents. Exts.A1 to A10 are relied on in support of her case. Ext.A1 is the certified copy of the settlement deed dated 17.7.1961. Ext.A6 dated 15.12.1980 is the sale deed executed by Ravi and Vanitha in favour of the plaintiff. Ext.A2 is the form of order of assignment on registry and Ext.A3 is the patta. Ext.A7 is the order passed by the appellate authority cancelling the order of assignment dated 24.1.1986 issued in favour of the defendants. It has come out in evidence that the first defendant applied for assignment of 16 cents of land. Though he denied the title and possession of the plaintiff over the plaint schedule property the application for assignment was only in respect of 16 cents of land. The order of assignment passed in favour of the defendant was challenged by the plaintiff before the appellate authority. The appellate authority by Ext.A7 order dated 24.1.1986 cancelled the assignment and remanded the case directing the Thahsildar to ## **S.A.No.292 Of 1996** ::6:: decide the case afresh in the light of the decree and judgment to be passed in the civil suit between the parties. The revision filed by the defendants against Ext.A7 order was dismissed. 6. Placing reliance on Exts.A1 & A6 the plaintiff contended that the person who obtained kuthakappattom right has transferred the property to the plaintiff under Ext.A1 sale deed. Ext.A6 also enables the plaintiff to have kuthakappattom right. The trial court after considering the oral and documentary evidence including Exts.A1, A3 and A6 and the oral evidence of witnesses including PWs 3 & 4 held that the plaintiff has been put in possession of the property consequent on the execution of Ext.A1 in favour of the plaintiff. Ext.A1 deed was executed by the two minors' father for and on behalf of the minors conveying the minors' interest in the property. On the strength on Ext.A1 the plaintiff approached the Land Tribunal and the Land Tribunal issued Ext.A3 patta in favour of the plaintiff. It was further observed that Ext.A3 patta issued in favour of the plaintiff was cancelled because a minors' right cannot be transferred. The court further observed that but, when the minors attained ## **S.A.No.292 Of 1996** ::7:: majority they have executed Ext.A6 sale deed in favour of the plaintiff and therefore from Exts.A1 & A6 it is found that plaintiff has got a clear case. On the basis of the facts and circumstances stated above the trial court concluded that the plaintiff have possession of 36 cents of property which included the plaint schedule property. But the trial court declined the relief prayed for in the suit stating that the plaintiff in order to get a declaration as to possession must satisfy the court that he has exclusive possession over the plaint schedule property because exclusiveness is the essence of possession. The court declined relief stating that the property belongs to the Government, the Government is not party to the suit and therefore plaintiff cannot be said to be in exclusive possession of the plaint schedule property and she has no legal possession. Therefore reliefs sought for in the plaint is denied. 7. The appellate court re-appreciated the evidence on record, considered Ext.A1 settlement deed, Ext.A2 order of assignment, Ext.A6 sale deed and other materials on record. The suit was filed for recovery of the building alleging that it was ## **S.A.No.292 Of 1996** ::8:: constructed by the plaintiff and the defendant is in occupation of the building under the permission granted by the plaintiff. The lower appellate court relied on the commissioner's report marked as Ext.B3(a). The report shows that the defendant was found to be in possession of 18 cents of land which was identified as plot No.4 in Ext.B3. The defendants were found to be in occupation of the house No.K.P.IV/427. The court also found that the plaintiff had not let in any evidence to prove that the property belongs to her and that the details available in Ext.B3 strengthens the plea of the defendants that they are in possession of plaint schedule item No.1. The court therefore held that the plaintiff has failed to prove any right or possession over the property. The appeal was dismissed stating that the appeal is devoid of any merit. 8. Learned counsel for the appellant relied on the decisions reported in _**Rev. Father K.C.Alexander v. Nair Service Society Ltd**_ . (1966 KLT 333) and _**Nair Service Society Ltd v. Rev. Father K.C.Alexander**_ [1968 KLT 182 (SC)]. In the first decision this Court dealt with the right of an earlier ## **S.A.No.292 Of 1996** ::9:: possessor is superior to that of a subsequent possessor and that the possessory owner's title continues to exist; only it is an imperfect title which is of no avail against the perfect title of the true owner; but against the inferior title of any subsequent possessor, it is a good title. It is held that a possessor has a better title, a title which becomes absolute the moment the title of the rightful owner is barred. It is also held that an earlier possessor can recover on the strength of his superior title. In the second decision cited above, it was held that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title. In the said decision it was held by the Apex Court that prior possession is a good title of ownership against all who cannot show a better title and therefore the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which the title would be immaterial. Therefore the plaintiff can maintain a suit on the basis of prior possession. ## **S.A.No.292 Of 1996** ::10:: 9. I have gone through the averments in the plaint. The relief portion of the plaint shows that the prayer is for declaration of the possessory right of the plaintiff over the plaint schedule property. The plaintiff has no case that the property absolutely belongs to the plaintiff. Since the pattas issued in the name of the plaintiff and the defendant stood cancelled, the parties cannot claim title over the property. The paramount title holder is the Government. At the same time this is a case where the parties applied for assignment of the property and in fact the property was assigned in her favour as early as on 8.6.1965. Ext.A3 is the patta dated 8.6.1965. It is true that subsequently the patta in favour of the plaintiff was cancelled. Suit was filed against the first defendant who is his brother and other defendants who are wife and daughter of his brother. The declaration sought for his for declaration of the possessory title of the property. Alternatively the plaintiff prayed for recovery of possession of the plaint schedule property. The prayer No.1 is for declaring his possessory right over the property and for consequential injunction. The prayer is against the defendants ## **S.A.No.292 Of 1996** **==> picture [26 x 9] intentionally omitted <==** on the strength of the alleged possession. It is not necessary that the Government be made a party to the suit. Therefore, the finding of the appellate court that though the plaintiff is in possession of the property she is not entitled to the relief of declaration prayed for in the suit for the reason that the Government is not a party, cannot stand. Plaintiff alleged in the plaint that he is in possession of 36 cents of land. Plaint item No.1 is 16 cents out of 36 cents which he believes that the defendants may at any time trespass into the said portion and commit waste in the property. In paragraph 2 of the plaint it is stated that the nature of the property is kuthakappattom and he got kuthakappattom right by assignment. In the nature of the case, declining of the relief by the trial court stating that the Government is not a party cannot be justified under any circumstance. The appellate court mainly based on Ext.B3 commissioner's report and held that the plaintiff has not proved possession over the property. Going by the commissioner's report and the claim of the defendant it can be seen that the claim is restricted to only 16 cents. The question whether the ## **S.A.No.292 Of 1996** ::12:: plaintiff is entitled to declaration of possessory right over the suit property has not been considered by the lower appellate court. The trial court though found possession declined relief stating that the Government is a necessary party. The case of the plaintiff has not been properly considered by both courts. The trial court and the appellate court declined relief to the plaintiff for different reasons. In the circumstances, for the ends of justice the case requires reconsideration. The trial court shall decide the case afresh in accordance with law. In the result, the appeal is allowed. The case is remanded for fresh consideration in accordance with law. The court below is directed to dispose of the case afresh within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 30.11.2010. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-