Velikoth Mythili and Velikoth Haridas (Supplemental Velikoth Nirmala) v. C.K. Phalgunan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932** **SA.No. 253 of 2000(E)** **-------------------------------** **AS.80/1997 of ADDL. SUB COURT, THALASSERY OS.250/1995 of MUNSIFF COURT, THALASSERY** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **---------------------------------------------------------------** - ***1. VELIKOTH MYTHILI, GOPALPETTA, THIRUVANGAD AMSOM, CHALIL DESOM, THALASSERY TALUK. *(DIED).** **2. VELIKOTH HARIDAS, S/O.MYTHILI, GOPALPETTA, THIRUVANGAD AMSOM, CHALIL DESOM, THALASSERY TALUK.** ## *** SUPPLEMENTAL 3RD APPELLANT IMPLEADED** **SUPPL. A3: VELIKOTH NIRMALA, D/O.LATE VELIKOTH MYTHILI, GOPALPETTA, THIRUVANGAD AMSOM, CHALIL DESOM, THALASSERY TALUK, CANNANORE DIST.** - **IT IS RECORDED THAT THE FIRST APPELLANT DIED AND SUPPLEMENTAL** - **3RD APPELLANT IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 18/12/2000 ON C.M.P.2476/2000.** **BY ADV. SRI.K.V.SOHAN, SRI.B. PREMNATH.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------------** **C.K. PHALGUNAN, S/O.RAMAN, MADAMBRAM HOUSE, THIRUVANGAD AMSOM, CHALIL DESOM, THROUGH MUKTHYAR HOLDER P.C. RAVINDRAN, S/O.BHASKARAN 'SATHYA', P.O. TEMPLEGATE.** **BY ADV. SRI.C.P.SAJI.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **SA.No. 253 of 2000(E)** **ORDER ON C.M.P. NOS.699/2000, 1439/2000 & 264/2002 IN S.A. NO.253/2000** **DISMISSED 24/01/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE** **rs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 253 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of January, 2011. ## **JUDGMENT** The defendants in O.S. 250 of 1995 before the Munsiff's Court, Thalassery are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. During the pendency of the appeal before this court, the first appellant died and her legal heir was brought on the party array as supplemental third appellant. 2. The plaintiff claims title to the suit property as per Ext.A3 dated 1.1.1992. Eversince the assignment in his favour, he claims to be in actual possession and enjoyment of the property. Plaintiff's property is comprised in Re-survey No.450. On the southern side of the property owned by the plaintiff, it is the property owned by the defendants, which is comprised in Sy. No. 451. There is a well demarcated boundary separating Sy. Nos. 450 and 451. S.A.253/2000. 2 Alleging that the defendants have trespassed into the property of the plaintiff and demolished a portion of the compound wall said to have been put up by the plaintiff, the suit had been laid for prohibitory injunction, mandatory injunction and damages. 3. The defendants resisted the suit. They relied on Exts.B1 and B2 and claimed that the plaint schedule property infact belongs to them. It was also contended that they were tenants under one Selvaraj, from whom the plaintiff also had obtained the property. They also contended that the compound wall was put up by the defendants much before the plaintiff purchased the property lying on the northern side. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The first defendant examined herself as D.W. 1 and had Exts.B1 to B6 S.A.253/2000. 3 marked. Exts. C1 and C2 are the commission report and plan. The trial court on an evaluation of the evidence in the case came to the conclusion that the plaintiff had proved his title and possession over the suit property and in the light of the finding a decree of prohibitory injunction was granted. However, the trial court found that there was no evidence of the defendants having demolished the compound wall and declined the prayer for mandatory injunction and damages. 5. The defendants carried the matter in appeal as A.S. 80 of 1997. The plaintiffs chipped in with cross objection. The lower appellate court dismissed the appeals filed by the defendants and allowed the cross objection filed by the plaintiff. In addition to the prohibitory injunction granted by the trial court, damages to the tune of Rs.4000/was granted. However, the prayer for mandatory injunction was declined. Hence the Second Appeal. 6. Notice is seen to have been issued on the following questions of law: S.A.253/2000. 4 “ _a) When a purchase certificate is obtained by a party to the suit with respect to the plaint schedule property, is it not conclusive proof of title and possession of the said property covered by the purchase certificate under Section 72K of the Kerala Land Reforms Act as held by the Supreme Curt in Cheeranthoodika Ahmedkutty and another v. Parambur Mariyakutty Umma and others (2000) 2 SCC 417?_ _b) When the defendant had obtained purchase certificate from the Land Tribunal much prior to the assignment deed in favourof the plaintiff with the plaintiff's assignor in the party array, are not the courts below erred in overlooking the purchase certificate in favour of the defendant obtained much prior to the alleged title of the plaintiff?_ _c) Are not the courts below erred in overlooking Ext.B1 and B2 order of the Land Tribunal and purchase certificate in favour of the defendant in view of the law declared by the Supreme Court in 2000(2) SCC 417?_ S.A.253/2000. 5 _d) Are not the courts below erred in holding that the plaintiff had proved the title and possession without a prayer for setting aside the conclusive title set up by the defendants?_ _e) Are not the courts below erred in not framing the proper issue regarding res judicata in view of the judgment in O.S. 140/89 between the defendant and the assignor of the plaintiff and is not the present suit barred by the principle of res judicata in view of the earlier judgment in O.S. 140/1989 on the file of the Munsiff's Court, Tellicherry?”_ 7. Learned counsel appearing for the appellant mainly contended that there is no proper identification of the property by the commissioner and without doing so, a decree ought not to have been granted in favour of the plaintiff. He relied on Exts. B1 and B2 documents, which are the order of the Land Tribunal and the purchase certificate issued by the Land Tribunal concerned. Ext.B2 shows that the extent of land is 98 cents. The prayer for prohibitory injunction ought not to have been granted unless the S.A.253/2000. 6 properties covered by the documents of title were properly identified. It could not be said that there was any attempt of trespass by the defendants over the plaintiff's property. It was also pointed out that the defendants have been paying tax for the entire property covered by Exts. B1 and B2 and this aspect has been omitted to be taken note of by both the courts below. Accordingly, it is contended that the judgments and decrees of the courts below are unsustainable in law. 8. Learned counsel appearing for the respondents on the other hand contended that the extent shown in Ext.B2 is obviously wrong because Ext.A6 is the document by which the defendants obtained the property on tenancy right. That shows a measurement of 10 ½ carpenter kole east-west and 11 ½ carpenter kole north-south. However, in the application for assignment of the tenancy rights, the measurement of 11 ½ kole was shown as 111 ½ kole and the Land Tribunal issued the purchase certificate for 98 cents. Actually the total extent of property in Sy. No. 450 is S.A.253/2000. 7 3 cents as could be seen fromExt.A12. Later the defendants sought to get the survey numbers corrected as could be evident from Ext.A5 application. Learned counsel for the respondent has pointed out that the application was disposed of during the pendency of the Second Appeal and he had sought to produce the the same under Order 41 Rule 27 CPC. Learned counsel would point out that both the courts below considered the identity of the property in considerable detail and found that the plaint schedule property infact belonged to the plaintiff. Accordingly, it is contended that no grounds are made out to interfere with the judgment and decree of the courts below. 9. As rightly pointed out by the learned counsel for the respondents, there is no identity crisis in the present suit. There is no dispute regarding the fact that the property owned by the plaintiff is comprised in Sy. No.450 and that of the defendants in Sy. No.451. Ext.A6 is the document of title of the defendants, based on which they had applied for the purchase certificate. That shows the measurements 8 already made mention of in the contentions raised by the respondents before this court. However, in the application filed by the appellants, the extent shown is 111 ½ cents. Obviously that is a mistake. They later on filed Ext.A5 application for issuance of purchase certificate incorporating the other survey number also. The Land Tribunal after a detail consideration of the applications so filed, by the order now produced bythe learned counsel for the respondents had dismissed the application and has categorically found that the extent shown in Ext.B2 is a mistake and the property to which the defendants are entitled to in Sy. No.451 is only 3 cents. 10. Apart from the above fact, it is the contention of the defendants that they had put up the boundary wall along the survey boundary. If that be so, there can be no difficulty in identifying the property. The defendants would have been cautious about the extent of the property they have obtained when they have put up the boundary wall. Whatever that be, the evidence clearly shows that the S.A.253/2000. 9 property to which the defendants are entitled to is comprised in Sy. No.451, whereas the property of the plaintiff is comprised in Sy. No.450. It was these facts, which had persuaded the courts below to grant prohibitory injunction against the defendants. 11. The trial court was of the view that there was no evidence to show that the defendants had demolished the compound wall and therefore the mandatory prayer and relief of damages could not be granted. However, the lower appellate court on the basis of conjunctures and surmises found that it must have been the defendants who did the mischief because the defendants had disputed the title and possession of the plaintiff and so demolition must have been done by them. 12. To say the least, the above finding is unsupported by any evidence. The trial court held that the commission report is of no help to arrive at the original position of the compound wall. Merely because the defendants are disputing the right of the plaintiff and S.A.253/2000. 10 claiming right over that property, it does not mean that it is they who had demolished the compound wall. To that extent, the lower appellate court was unjustified in granting the damages. In the result, this appeal is partly allowed and that portion of the decree of the lower appellate court granting damages to the tune of Rs.4000/- is set aside and in all other respects the decree is confirmed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.