VELLAMPARAMBIL JOSEPH and MARY JOSEPH v A. SARASWATHI ANTHARJANAM and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** **RSA.No.11 of 2019** **AGAINST THE ORDER/JUDGMENT IN AS 86/2015 of ADDITIONAL DISTRICT COURT -III, KASARAGOD DATED 13-07-2018** **AGAINST THE ORDER/JUDGMENT IN OS 133/2009 OF THE COURT OF THE SUBORDINATE JUDGE, HOSDRUG DATED 29-10-2015** ## **APPELLANT/S:** **1 VELLAMPARAMBIL JOSEPH AGED 63 YEARS S/O.CHACKO, RESIDING AT NEELAYI, P.O PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA. KASARAGOD DISTRICT.** **2 VELLAMPARAMBIL MARY JOSEPH AGED 56 YEARS W/O.VELLAMPARAMBIL JOSEPH, RESIDING AT NEELAYI,.P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA. KASARAGOD DISTRICT.** **BY ADVS. SRI.KODOTH SREEDHARAN SMT.ARYA BALACHANDRAN SMT. KEERTHI B. CHANDRAN SMT.M.SUSEELA SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SRI.S.SIDHARDHAN SRI.SUDHAKARAN V. SRI.V.N.MADHUSUDANAN** ## **RESPONDENT/S:** **1 A.SARASWATHI ANTHARJANAM AGED 66 YEARS W/O.LATE A VISHNU EMBRADIRI, RESIDING AT ALAKKAT HOUSE, NEELAYI, P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA, KASARAGOD DISTRICT-671314. 2 ESHWARA PRASAD.A.C. AGED 42 YEARS S/O.LATE A VISHNU EMBRADIRI, RESIDING AT ALAKKAT HOUSE, NEELAYI, P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA, KASARAGOD DISTRICT-671314.** 2 RSA.No.11 of 2019 **3 NARAYANAN.A AGED 37 YEARS S/O.LATE A VISHNU EMBRADIRI, RESIDING AT ALAKKAT HOUSE, NEELAYI, P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA, KASARAGOD DISTRICT-671314. 4 PARAMESHWARI AGED 36 YEARS D/O.LATE A VISHNU EMBRADIRI, RESIDING AT ALAKKAT HOUSE, NEELAYI, P.O.PUTHARIYADUKKAM, PEROLE VILLAGE, NILESHWAR VIA, KASARAGOD DISTRICT-671314.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.6.2019, THE COURT ON 03.07.2019 DELIVERED THE FOLLOWING:** 3 RSA.No.11 of 2019 ## **JUDGMENT** The suit was for possession of the plaint schedule property. The suit was decreed. The appeal against the decree met dismissal. The second appeal is filed by the defendants. 2. The case pleaded in the plaint may be summarised as under: The additional plaintiffs are the legal representatives of the original plaintiff who died pending the suit. 10 acres and 16.25 cents of land comprised in survey no.198/2 of Perole village belonged in jenm to the illam of the original plaintiff. Out of it, 2.42 acres of land was taken on oral kuzhikanam lease in 1960 by the original plaintiff from Ishwaran Embrandiri who was the karanavar of the illam. In 1969 the original plaintiff executed Ext A1 kuzhikanam marupattam deed in respect of the said property in favour of Ishwaran Embrandiri and registered it. In token of acceptance of the lease deed, the latter executed Ext A2 unregistered counterpart of the lease deed in favour of the original plaintiff. Later, the land tribunal issued Ext A3 certificate of purchase in favour of the original plaintiff in respect of 2.42 acres of land. The plaint schedule property is the south-western portion of the said 2.42 acres of land. Out of the total extent of 10 acres and 16.25 cents of land, one Korappalu 4 RSA.No.11 of 2019 was in possession of 92 cents as a lessee. She was issued a certificate of purchase by the land tribunal.. The remaining property left with the illam was 6 acres and 82.25 cents. The original plaintiff and the other members of the illam executed Ext A6 gift deed in favour of Ishwaran Embrandiri in 1988 in respect of the said 6 acres and 82.25 cents. But the extent was mistakenly shown as 9.27 acres in Ext A6 gift deed. Ishwaran Embrandiri sold 93 cents of land to one Damodaran under Ext A7 sale deed, 2.85 acres to the second defendant under Ext A8 sale deed and 3 acres to the first defendant under Ext A9 sale deed. The land measuring 2.42 acres held by the original plaintiff and 6 acres and 82.25 cents held by Ishwaran Embrandiri were separated by a mud ridge. The defendants demolished the ridge on 15.1.2009, trespassed into the plaint schedule property and reduced it to their possession. 3. The written-statement contained the following contentions: The plaint schedule property is not included in Ext A3 certificate of purchase. The same is an invalid document since the original plaintiff acted both as landlord and tenant in the land tribunal. After the death of Ishwaran Embrandiri, 9.27 acres of property in survey no.198/2 devolved upon his family members including the original plaintiff. He and other members of the illam relinquished their rights to Ishwaran Nambudiri @ 5 RSA.No.11 of 2019 Ramachandran in 1988. From him defendants 1 and 2 purchased their respective properties under Exts A9 and A8 sale deeds respectively. The original plaintiff never had ownership and possession in the plaint schedule property. If the original plaintiff had any right, the same was lost by adverse possession and limitation. 4. At the trial, PW1 and DW1 were examined. Exts A1 to A9, B1, B2 and C1 to C4 were marked. The defendants suffered a decree directing them to surrender the plaint schedule property which was shown as plot B in Ext C4 plan. 5. Heard Sri.Kodoth Sridharan, the learned counsel for the appellants/defendants. 6. The property claimed by the plaintiffs and the properties of the defendants originally belonged to the illam of the original plaintiff. All those properties were lying in survey no.198/2 of Perole village. The dispute in the suit is whether the plaint schedule property is part of the property of the plaintiffs or part of the properties of the defendants. In the first appeal the learned counsel who was appearing for the defendants submitted that he was disputing only the identity of the plaint schedule property. The said statement of the first appellate judge in the impugned judgment is not disputed in the memorandum of appeal. The grounds and questions of law 6 RSA.No.11 of 2019 stated in the memorandum of appeal also suggest that what the appellants/defendants challenge is only the identity of the plaint schedule property. 7. Identity or identification of the plaint schedule property is not a substantial question of law,unless there was misappreciation of evidence. Admittedly the illam owned 10 acres and 16.25 cents of land in survey no.198/2. Admittedly Korappalu was the tenant of 92 cents out of the property held by the illam. She was issued a certificate of purchase by the land tribunal. The commissioner measured and identified the property of Korappalu. The same is shown as plot H in Ext C4. The commissioner reported that Korappalu was holding 92 cents in survey no.198/2 and that the remaining extent in her possession lay in survey no.191. The parties to the suit have no claim in the property held in the possession of Korappalu. The properties purchased by the defendants from Ishwaran Nambudiri @ Ramachandran and which were lying in survey no.198/2 were also measured and identified by the commissioner. Those properties are shown in Ext C4 plan as plots B1, C, D and E. One acre of property sold by Ishwaran Nambudiri under Ext A7 was identified by the commissioner and he showed it as plot G in Ext C4. The commissioner reported that the actual extent assigned under Ext A7 deed was found on 7 RSA.No.11 of 2019 measurement to be only 93 cents. The commissioner measured the property covered by Ext A1 lease deed. The property admitted to be in the possession of the plaintiff is shown in Ext C4 as plot A. It measures 1 acre and 68.50 cents. After measuring the entire extent of the properties originally held by the illam, the commissioner reported that plot B, the plaint schedule property, included in the title deed of the plaintiffs. The defendants did not state where did the commissioner go wrong in identifying different properties including the plaint schedule property. Filing objection against the report of the commissioner is not sufficient. The objections should be proved by examining the commissioner. The defendants did not do anything to prove their objections against the report of the commissioner. The commissioner was not examined by the defendants to prove the objections and to establish that the plaint schedule property was not properly identified. There is no reason to suspect the correctness of Ext C1 report and Ext C4 plan. The courts below rightly accepted Exts C1 and C4. 8. The first defendant has given evidence as DW1. He has stated that he did understand that the plaint schedule property is a property measuring 73 ½ cents. He has deposed that the properties obtained by him and his wife (second defendant) under Exts A8 and A9 and measuring 5 acres and 8 RSA.No.11 of 2019 85.50 cents are lying on the western side of the plaint schedule property. It is also stated by DW1 that the properties on the eastern side of the plaint schedule property belong to the plaintiffs and Korappalu. DW1 has given the name of the owner of the property on the southern side of the plaint schedule property. The evidence of DW1 suggests that he knows well which is the plaint schedule property. Therefore there is no point in disputing the identity of the plaint schedule property which is found on measurement that it forms part of the property of the plaintiffs which was obtained by the original plaintiff under Ext A1. 9. The learned counsel for the defendants has submitted that the plea of adverse possession and limitation raised by the defendants was not considered by the first appellate court. The failure to consider a contention raised by the defendants is the substantial question of law which the learned counsel formulates to get the appeal admitted. No such substantial question of law is involved in the second appeal. The trial court framed an issue on the plea of adverse possession and limitation raised by the defendants. The trial court answered the said issue against the defendants. It was submitted before the learned first appellate judge by the learned counsel appearing for the defendants that the challenge was 9 RSA.No.11 of 2019 confined to the identity of the suit property. That was the reason why the appellate court did not consider the correctness of the finding of the trial court on the issue relating to adverse possession and limitation. As I have already indicated, there is no whisper in the memorandum of appeal to dispute the said submission on the side of the defendants made to the learned appellate judge. The question of adverse possession and limitation was not germane for consideration after the submission made to the learned appellate judge referred to above. 10. The learned counsel for the defendants referred to two decisions. The decisions are (i) **Pennamma Vally** vs **Achuthan Unni (1966 KLT 86)** and (ii) **Achuthan Nair** vs **Vasudeva Menon (1970 KLT 733).** The dictum held in both the decisions is one and the same. The said dictum is not applicable to the facts of the present case. This court in both the decisions was considering article 142 of the Indian Limitation Act, 1908 and held that the burden of proof was on the plaintiff to prove possession within 12 years before the date of suit. The present suit was not one filed by the original plaintiff on the strength of his possessory title. He filed it on the strength of his ownership in the plaint schedule property. He relied on Ext A1 to prove his ownership. The decisions relied on by the learned 10 RSA.No.11 of 2019 counsel can have application only if article 64 of the Limitation Act, 1963 is the provision applicable. But it is not. Article 64 has no application in the present suit inasmuch as the right claimed for recovery of possession is ownership on the strength of Ext A1 and not possessory title. Therefore the reported decisions referred to above do not come to the aid of the appellants. That apart, the title of the plaintiffs to the plaint schedule property is not an issue after confining the challenge to the identity of the plaint schedule property as already stated. 11. The appeal should fail. There is no merit in it. No substantial question of law is involved. The appeal deserves only a dismissal. 12. Dismissed. **Sd/-** **A.M.BABU** Sks/29.6.2019 **JUDGE**