Valliyamma and Others v. Harrisons Malayalam Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 RSA NO. 400 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 22.01.2014 IN AS 6/2006 OF SUB COURT, SULTHAN BATHERy WHICH AROSE FROM THE JUDGMENT AND DECREE IN OS 89/2004 OF MUNSIFF COURT, KALPETTA DATED 17.11.2005** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 VALLIYAMMA AGED 49 YEARS W/O. LATE SELVARAJ, PUTHIYAPPADI, LABOURLINE NO. 288, NDUMKARANA DIVISION, MEPPADI P.O., KOTTAPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. 2 PRABHU AGED 25 YEARS S/O. SELVARAJ, 3 DENSINGH AGED 22 YEARS S/O. SELVARAJ 4 ALBUTHAMANI AGED 65 YEARS W/O. THANKAVELU, KADASSIKUNNU, PUTHIYAPADI, MUPPAINAD AMSOM, KOTTANADU MOOLA, RIPPON P.O., VYTHIRI TALUK, WAYANAD DISTRICT. 5 KEMEEBA AGED 26 YEARS D/O. LATE SELVARAJ @ PERIATHAMBI. 6 ALBRITE AGED 24 YEARS S/O. SELVARAJ @ PERIATHAMBI 7 SALOMI AGED 20 YEARS D/O.SELVARAJ @ PERIATHAMBI (APPELLANTS 1 TO 3 AND 5 TO 7 ARE RESIDING AT NEDUNGARANA DIVISION, 2 R.S.A.No.400/2014 PUTHIYAPADI LABOURT LINES, ARAPETTA ESTATE, MEDPPADI POST, KOTTAPADI VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT). BY ADV SRI.P.K.RAMKUMAR ## **RESPONDENT/RESPONDENT/PLAINTIFF:** HARRISONS MALAYALAM LIMITED ARAPETTA ESTATE, MEPPADI P.O., VYTHIRI TALUK, WAYANAD DISTRICT. 673 577 BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 10.01.2023, THE COURT ON 30.01.2023 DELIVERED THE FOLLOWING: R.S.A.No.400/2014 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.400 of 2014 -----------------------------------------------Dated this the 30[th] day of January, 2023 ## **JUDGMENT** This R.S.A has been directed against the judgment and decree in A.S.No.6/2006 on the file of the Subordinate Judges Court, Sulthan Batheri which in turn arise out of the judgment and decree in O.S.No.89 of 2004 on the file of Munsiff Court, Kalpetta. 2. Appellants are the defendants. Suit originally was filed for permanent injunction and subsequently amended for recovery possession. (Parties would hereafter be referred as per their status before the trial court.) Plaintiff is a company incorporated under the Indian Companies Act having its registered office at Kochi and having estates in various places including the one at R.S.A.No.400/2014 4 Arapetta, Mooppainadu in Kottappadi Village in Vythiri Taluk and is represented by the Manager of Arapetta estate who is authorised by the company to file the suit. Plaint A schedule property absolutely belongs to the company having acquired the same as per assignment deed No.2805/1923 of S.R.O. Chinkalpet, Madras. The property comprises tea plantations and various crops, the muster office, Manager Bungalow, office building, labour lane, staff quarters etc and other ancillary and interspersed area. First defendant is the worker of the plaintiff company and the other defendants are her husband and children. Defendants are residing in the labour lane room of the plaintiff company. Behind the labour lane, there is a stretch of property belonging to the plaintiff with various types of trees. On 04.02.2004, there was an attempt on the part of the defendants to trespass into the rear side of the labour lane room by clearing the bushes and putting up a structure and the attempted trespass area is described as B schedule which is a part of A schedule property. Again on 25/3/2004 and 28/03/2004, R.S.A.No.400/2014 5 defendants made attempt to trespass into the plaint schedule property for which they have no manner of right. Hence the suit has been filed for restraining the defendants from trespassing into the plaint B schedule and putting up any structures or committing any acts of waste and also from interfering in any manner with the peaceful possession and enjoyment of the property by the plaintiff. On the basis of written statement filed, the suit was amended pleading that if at all the plaintiff failed to prove possession over B schedule property, alternatively claim for recovery of possession with mesne profit. 3. Defendants filed written statement contending that the person who verified the plaint and petition is not the Manager or the principal officer of the plaintiff company and hence he has no locus standi to file the suit. It is admitted that first defendant is a worker and other defendants are her husband and children. The ownership of the plaintiff over plaint A schedule property is denied. Attempt of trespass from the part of the defendants is also denied. Plaint A and B schedule property is not identifiable. R.S.A.No.400/2014 6 25 cents of property including residential building inspected by the Commissioner belongs to the second defendant. They are residing in the house bearing No.8/39 of Muppainadu panchayat for the last so many years. The hut in the property fell down in the June, 2003. Second defendant is bed ridden for the last six months. Property held by the second defendant is having cultivation of coconut, arecanut, coffee, pepper etc having age of more than 30 years. Property is lying with definite boundaries. 4. During the pendency of the suit, second defendant died and his legal heirs were impleaded as supplemental defendants 5 to 9. They adopted the contentions in the written statement of defendants 1 to 4. 5. PW1 and PW2 were examined and Exts.A1 to A11 were marked from the side of the plaintiff. Exts.B1 to B3 and B4 series were marked from the side of the defendants. Exts.C1 to C4 and Exts.X1 to X5 were also marked. 6. On evaluating the facts and circumstances and evidence, the trial court decreed the suit ordering recovery of R.S.A.No.400/2014 7 possession of B schedule, against which appeal was filed and the first appellate court on reappreciating the facts and circumstances and evidence, confirmed the judgment and decree passed by the trial court, against which the defendants approaches this Court in second appeal. 7. Notice was issued to the respondent. Both sides were heard. 8. According to the learned counsel for the appellant, the signatory to the plaint is not competent to file the suit. He would contend that as per Order XXIX Rule 1, in a suit by or against a Corporation, pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. But, PW1, the signatory to the plaint is not the Secretary or Director or a Principal Officer so as to represent the company. It is also contended that Ext.A3 title deed is only a proceeding of the liquidator and will not confer any title of the plaint schedule property upon the plaintiff company and hence the plaintiff is not R.S.A.No.400/2014 8 entitled to get any relief without proving the title over the plaint schedule property. It is further contended that since the property in the possession of the defendants has already been converted from plantation, plaintiff cannot continue to hold such converted land by claiming possession and ownership. 9. Learned counsel for the respondent/plaintiff company, on the other hand, would contend that the signatory to the plaint is the Manager of Arapetta estate who is the principal officer of the company and hence is competent to represent the plaintiff company and file the suit. The title of the plaintiff is proved by Ext.A3 and Ext.X5 produced from the side of the plaintiff which would co-relate with the present survey number of the plaint schedule property. It is also his contention that the first defendant has been occupying a labour lane room and plaint B schedule property is the rear side of the labour lane which has been trespassed upon by the defendants and alternate right and title claimed by the second defendant over B schedule property could not be substantiated by producing any valid documents and R.S.A.No.400/2014 9 defendants also failed to mount the box to controvert the case put forward by the plaintiff and hence there is no substantial question of law emerging for consideration for entertaining the second appeal. 10. The first contention of the plaintiff is with regard to the locus standi of the signatory to the plaint to institute the suit on behalf of the company. The signatory to the plaint is alleged to be the Manager and principal officer of the plaintiff company. Learned counsel for the appellants/defendants relied on **Swadharma Swarajya Sangha v. Indian Commerce and Industries Co. Pvt.Ltd : Company Cases 1999 (98) 151** . That was a case in which the suit was filed by the Government and there was no resolution of board of directors authorising a Board Director to file suit. As per the Articles of Association of the Company it was the Directors who have to join and decide to institute a suit. But the Directors had not passed any resolution deciding to institute a suit binding the institution. In the said circumstances, it was held that the suit filed without any R.S.A.No.400/2014 10 resolution by an authorised person under Order XX1X Rule 1 of Code of Civil Procedure, 1908, is not maintainable. 11. **Union Bank of India v. Naresh Kumar and Others : AIR 1997 SC 3** was relied on by the learned counsel for the defendant as well as learned counsel for the plaintiff in this aspect. Paragraphs 9 and 10 were highlighted by the learned counsel for both sides which reads thus: _“9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable._ _10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by_ R.S.A.No.400/2014 11 _the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney_ R.S.A.No.400/2014 12 _being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to 11/01/2023, 14:40 United Bank of India v. Naresh Kumar the conclusion that the corporation had ratified the act of signing of the pleading by it's officer._ 12. From the above what could be gathered is that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just cause. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. 13. Learned counsel for the defendants were highlighting a portion in paragraph No.10 extracted above, wherein it has been held that in the absence of any express authorisation to sign the R.S.A.No.400/2014 13 pleadings on behalf of the company by the board of directors by passing a resolution or by a power of attorney being executed in favour of any individual the Corporation can ratify the action of its officer in signing the pleadings and such ratification can be express or even implied. So, according to the learned counsel for the defendant, there is no finding by the courts below that the company has ratified either expressly or impliedly the action of the signatory to the plaint in instituting the suit and hence the courts below went wrong in finding that the suit instituted by the signatory to the plaint is maintainable. 14. Learned counsel for the plaintiff, on the other hand, would contend that the signatory to the plaint Sri.Santhosh Kumar is the Manager of Arapetta estate and the principal officer of the company and Exts.A1 and A2 authorisation letters produced from the side of the plaintiff would prove that the signatory to the plaint has been duly authorised to file the suit. He would also contend that as per Order VI Rule 14 of the code though it is provided that every pleading shall be signed by the R.S.A.No.400/2014 14 party and his pleader (if any) the proviso to Rule 14 make it clear that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. Rule 15 provides that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. He would also contend that in **Union Bank of India** referred above, it has been categorically held by the Apex Court that in the case of suits instituted or defended on behalf of a public corporation like bank; public interest should not be permitted to be defeated on a mere technicality and procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. It is also categorically held that in the absence of any express authorisation, in cases where pleadings have been signed by one of its officers, a Corporation can ratify the said action of the officers in signing the pleadings and it has gone to the extent of R.S.A.No.400/2014 15 holding that such ratification can be express or implied. So, the suit instituted by the signatory to the plaint on behalf of the company has been agitated before two courts and the proceedings are now pending before this court and the company is still actively prosecuting the matter itself would amount to implied ratification of institution of the suit by the signatory to the plaint. 15. Ext.A2 is the authorisation by the company secretary authorising the Manager of Arappetta estate to file a suit for injunction before the Munsiff's Court, Kalpetta against the first defendant and others residing in the estate lanes in Nedinkarna division of Arapetta estate and also authorised to represent the company and to sign necessary papers and to do the needful to pursue the case before the Munsiff's Court, Kalpetta. Ext.A1 is the authorisation by Sri.Santhosh Kumar to the signatory to the plaint who is the Assistant Superintendent (Survey) to appear before the court and tender evidence in the matter for and on behalf of him. As per Order VI Rule 14, the pleading can be R.S.A.No.400/2014 16 signed by any person duly authorised by the plaintiff and Rule 15 of Order VI also empowers any person who is in acquaintance with the facts of the case to verify the pleading. In **United Bank of India** , the Apex Court categorically held that procedural acts which do not go to the root of the matter should not be permitted to defeat a just cause and courts have sufficient power to ensure that injustice is not done to any party who has a just cause. 16. In the present case, the suit has been filed on behalf of the company by PW1 who is the Manager and principal officer of Arapetta estate against trespass into the property of the company by a worker and the family members. So, the suit as instituted by PW1, the Manager and principal officer of the plaintiff company is perfectly maintainable in law. 17. The next contention of the learned counsel is with regard to the title of the plaintiff. According to him, Ext.A3 is a proceedings of the liquidator and is not a title deed. But, on going through Ext.A3, it is seen that a lease has been created for a period of 99 years and as per the averments in the plaint as R.S.A.No.400/2014 17 well as in the proof affidavit the plaint schedule property has been described in Schedule 1 in survey No.1149 and its resurvey number is 1112 and as per the new survey, it is comprised in Block No.31 and Survey No.291. Ext.A5 certified extract of basic tax assessment register has been produced from the side of the plaintiff to substantiate that fact. Ext.A6 series are the land tax receipts proving payment of tax by the plaintiff company for the period 2002, 2003, 2004, 2005. 18. Apart from that, plaintiff also produced Ext.A4, which is a letter with respect to change of name of the plaintiff company to Harison Malayalam Limited from Malayalam Plantations by the Regional Director, Government Law Board, Madras dated 02.10.1984. Ext.A5 is the certified extract of basic tax register which would prove that the property has been assessed in the name of Malayalam Plantation Limited with respect to property having extent of 102 hectares 44 Ares in resurvey No.291 (old survey No.1112 part) in block No.31 of Vythiri Taluk. Ext.A6 is the tax receipt with respect to the above R.S.A.No.400/2014 18 property issued in the name of the plaintiff company dated 27.03.2004. Further, plaintiff produced Ext.X5 which is the certified extract of settlement register to substantiate that the previous survey number of 1112 is 1149. PW2, the Village Officer of Moopainadu village is examined and Ext.X5 extract of settlement register was proved through him and he would depose that as per Ext.X5, the old survey number of 1112 is 1149. 19. The learned counsel for the plaintiff placed reliance on **Ravinder Kaur Grewal and others v. Manjit Kaur and others** **: AIR 2019 SC 3827** . Paragraph Nos.13 and 14 were highlighted by the learned counsel wherein the Apex Court considered the right of owner of property to retain possession. In paragraph No.13 quoting **Somnath Berman v. Dr.S.P.Raju & Anr. AIR 1970 SC 846** it has been held that the right of a person having possessory title to obtain a declaration that he was the owner of the land in a suit and an injunction restraining the defendant from interfering with his possession has been recognised by the court. It is also observed therein that Section 9 of the Specific R.S.A.No.400/2014 19 Relief Act, 1963 is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff, in an action of ejectment is sufficient title even if the suit is brought more than six months after the act of dispossession complained of and that the wrong-doer cannot successfully resist the suit by showing that the title and the right to possession vested in a third party. ## 20. **Narayan Row v. Dharmachar (1903) ILR 26 Mad** **514** has been quoted wherein a Division Bench of Madras High Court held that possession is, under the Indian, as under the English Law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person. Hence it was held that in case of R.S.A.No.400/2014 20 dispossession by another person by taking law in his hand, a possessory suit can be maintained under Article 64 even before ripening of title by way of adversory possession. In this case, even if the plaintiff has got only leasehold right the suit filed by the plaintiff for ejectment on the basis of possession is also recognised under law against trespassers, the defendants. 21. Even though the defendants produced Exts.B1 and B2, the ownership certificate issued from the Panchayat and also the building tax receipt with respect to the building, it will not prove the possession of the defendants over the plaint schedule property before 2003. Learned counsel for the defendants though relied on the Commissioner's report and contend about the building number noted by the Commissioner in Ext.C1 report, the Commissioner only make reference about a new house made of bricks having not more than one week old age with a single room and sit out. Commissioner also noted a yellow board with number VIII/39 for the period 2001-02 to 2005-06 of Moopainad Grama Panchayat. However, how a new building made of bricks R.S.A.No.400/2014 21 and asbestos sheet roof of old age of not more than one week bear a building number for the period 2001-02 to 2005-06 probabilise the case of trespass alleged by the plaintiff to the plaint B schedule property by the defendants. Ext.A3 has been marked without objection and the first defendant admittedly is occupying a labour lane as a worker of the plaintiff company and plaint B schedule is the rear portion of the labour lane, which according to the plaintiff, is attempted to be trespassed by the defendants and thereupon the case was filed by the plaintiff and a survey commission was taken out and demarcated the property in the possession of the defendants as 4.20 cents comprised in survey No.291 (old survey No.1112 part). Defendants did not enter the box and adduce evidence to prove a better title over plaint B schedule property. It has already been found that the plaintiff could prove the leasehold right and possession over the plaint schedule property through the evidence of PW1 and Ext.A6 land tax receipt and Ext.A5 photocopy of 'adangal register' as well as Ext.X5. So plaintiff could establish the rightful leasehold R.S.A.No.400/2014 22 right and lawful possession over the plaint schedule properties. 22. It is contended by the learned counsel for the defendants that the Commissioner's report would reveal that there are other cultivation than the plantation in B schedule property and hence it is to be considered as an exempted land and after the conversion, the plaintiff cannot continue to hold this converted land, B schedule by claiming possession and ownership over the said land. He would rely on **K.H.Nazar v. Mathew K. Jacob & Ors. : Civil Appeal Nos.7699-7700 of 2019** arising out of SLP(C) Nos.7792-7793 of 2019 wherein the Apex Court had occasion to consider the question whether quarrying is a commercial activity so as to claim exemption under section 81(1) of the Kerala Land Reforms Act,1963 (in short the Act),since commercial sites are exempted from the purview of the Act. It has no application in the present case since the act of the defendants are already found to be trespass and putting up a shed therein behind the the labour line building occupied by the defendants. The presence of 15 year old arecanut trees,10 coffee R.S.A.No.400/2014 23 plants of 20 years old or pepper wine Vanila etc. in B schedule also can not be taken as conversion of land since it is the property situated on the southern side of labour lane in the possession of plaintiffs. If at all, workers occupying the labour lane, plants trees or make cultivation in the adjacent property, it will not amount to conversion of land. More over, there is no evidence to prove that it is the defendants who planted the trees or made the cultivation. In Ext.C4 plan, the commissioner with the aid of surveyor clearly demarcated B schedule property of 4.20 cents in Sy-291 pt. in the possession of the defendants with house No.V111/39. Apart from Ext.B1 (24.09.2003) and B2 (29.3.2004) defendant did not adduce any evidence. Suit was filed on 30.3.2004 originally for injunction which was subsequently amended for possession. Plaintiff produced X1 to X4 to prove that complaints were filed before police on 4.2.2004 and she was warned by the police.Ext.X3 would prove that a police charge was laid against the first defendant and another for criminal trespass and mischief. R.S.A.No.400/2014 24 23. So on a meticulous evaluation of judgments passed by the courts below, I am of the view that courts below rightly appreciated the facts, circumstances and evidence adduced and decreed the suit. I find no substantial question of law emerging for consideration for entertaining this second appeal. In the result, appeal dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge