Vilasini, D/o. Sarada Amma v. Kallyani and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934 SA.No. 267 of 2001 ( ) ---------------------AS.61/1998 of SUB COURT, NEDUMANGAD OS.521/1986 of PRL.MUNSIFF COURT,NEDUMANGAD APPELLANT/APPELLANT/PLAINTIFF: --------VILASINI, D/O.SARADA AMMA, T.C.25/970, THAMPANOOR, THIRUVANANTHAPURAM ALSO HAVING POOVACHANKUZHI VEEDU, POONJAKOTTU MURI, PERUMKULAM VILLAGE, NEDUMANGAD. BY ADV. SRI.T.M.CHANDRAN SRI K.I.ACHUTHAN SRI S.SUJITH RESPONDENTS/RESPONDENTS/DEFENDNTS 2 TO 8: ----------- 1. KALLYANI, SAVITHRI, W/O.THANKARAJAN, ANAKODE VADAKKUMKARA VEEDU, WARD NO.6, THOTTAMPARA MURI, VEERANAKAVU VILLAGE, NEDUMANGAD TALUK. ( **DIED)** 2. THANKARAJAN MURUKAN, -DO- -DO3. SOBHANA, D/O.SAVITHRI, RESIDING AT -DO- -DO4. AJITHA, D/O.SAVITHRI, RESIDING AT -DO-DO5. AMBILI, D/O.SAVITHRI, RESIDING AT -DO-DO6. SREEKALA, D/O.SAVITHRI, RESIDING AT -DO-DO7. SREELATHA, D/O.SAVITHRI, RDESIDING AT -DO- -DO(Respondents 2 to 7 are recorded as the LRs. of the deceased respondent No.1 vide order dtd. 5/11/2007 as per memo bearing of 5343/07) BY ADV. SRI.L.MOHANAN FOR R2 TO R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2012, THE COURT ON 28/3/2012 DELIVERED THE FOLLOWING: S.A.NO.267/2001 28/3/2012 ORDR ON CMP.NO.599/2001 IN S.A.NO.267/2001 --------Dismissed Sd/Harun-Ul-Rashid, Judge. True Copy **-------------------------------** ## **HARUN-UL-RASHID,J.** ## **-------------------------------** ## **S.A. NO. 267 OF 2001** **DATED THIS THE 28TH DAY OF MARCH, 2012** ## **JUDGMENT** The substantial questions of law formulated in the appeal are as follows: _“i) Whether the legal heirs can plead a different point that is not pleaded by the original defendant?_ _ii) Whether the court can declare the title of the plaintiff on the basis of the title deeds standing in favour of plaintiff?_ _iii) Whether the court can presume the mistake in survey number in the document in the absence of reliable evidence and especially when the original defendant has no such case?_ _iv) Whether a court can rely on the order of the Land Tribunal rejecting the claim of the defendant and hold that the plaintiff is entitled to the property?_ _v) Without the production of patta, can the court presume the ownership of the property?_ _vi) Whether the court can order that demolition of a portion of the house which is constructed during the pendency of the suit?_ _vii) Whether the court can declare the title and_ **-2-** **S.A.No.267/2001** _possession and putting up of boundary even in the absence of prayer for recovery of property?_ _viii) Whether the Lower appellate Court can consider the will produced by a party at the appellate stage?_ _ix) Whether both the courts below have misread the evidence adduced in the case and misinterpreted the documents and relied on irrelevant and unreliable evidence and documents to enter a decision and whether this Hon'ble Court can interfere on such decisions?”_ 2. Plaintiff is the appellant. The appeal is directed against the judgment and decree in A.S.No.61/1998 on the file of the Sub Court, Nedumangad arising from the judgment and decree in O.S.No.521/1986 on the file of the Principal Munsiff's Court, Nedumangad. The suit was filed for declaration of title, possession, putting up of boundary and for consequential injunction. The trial court dismissed the suit, which was confirmed in appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaint schedule property is 52 cents comprised **-3-** ## **S.A.No.267/2001** in R.S.No.1686/1 (old Sy.No.2592). Defendants are the adjacent property owners. First defendant is the husband of the second defendant. Third defendant is their son. The plaintiff's case is that the plaint schedule property belongs to her. She purchased the property as per Ext.A1 sale deed dated 5/1/1985. It is averred in the plaint that the plaintiff is remitting tax and she is in absolute possession and enjoyment of the property ever since the execution of sale deed. According to the plaintiff, defendants are in possession of the neighbouring property lying on the south-eastern side of the plaint schedule property. The defendants attempted to trespass into the suit property by tampering with the boundary with the mala fide intention to grab portions from the plaint schedule property. Therefore, the suit was filed for the aforesaid reliefs. 4. Originally the suit was filed for permanent prohibitory injunction. Pending suit the plaint was amended as per order dated 27/8/1990 in I.A.No.2178/89. In the amended plaint it is averred that on 15/9/1989 after the dismissal of S.M. **-4-** ## **S.A.No.267/2001** Case No.4/88, the defendants violating the injunction order passed by the court trespassed into the plaint schedule property and demolished the eastern and southern boundaries. Therefore, the plaintiff prayed for declaration of title, possession, putting up boundary on the southern and eastern side and for consequential injunction. 5. Originally the defendants jointly filed written statement and additional written statement. Defendants contended that 52 cents of property comprised in Re-Survey No.1686/2 (old Survey No.2593) were in absolute possession and enjoyment of the 2[nd] defendant's mother Kallyani as per Ottykuzhikkanam deed of the year 1119 M.E. marked as Ext.B1 in the case. It is stated that in continuation of the possession and enjoyment of Kallyani the defendants are in joint possession and enjoyment of the property and they have effected valuable improvements. It is also stated that 62 cents of property comprised in R.S.No.1686/1 were also in the possession and enjoyment of the 2[nd] defendant's mother as per **-5-** ## **S.A.No.267/2001** oral lease from 1119 M.E. onwards. Defendants contended that as per order dated 9/11/1976 of the Land Tribunal the 2[nd] defendant had obtained patta regarding 20.5 cents in R.S.No.1686/2. It is also contented that 82 cents of property including the plaint schedule property is in the absolute possession of the 2[nd] defendant for the last 44 years. Defendants denied the plaint averments and contended that the plaintiff was never in possession and has no right over the plaint schedule property. It is further contended that the defendants are entitled to fixity of tenure under the Kerala Land Reforms Act and that the right, if any, of the plaintiff is lost by adverse possession and limitation. Defendants opposed the prayer for declaration of title, possession, putting up boundary and for consequential injunction. 6. Pending suit, the lst defendant died. Defendants 2 and 3 were recorded as legal heirs of the lst defendant and the additional defendants 4 to 8 are impleaded as the legal heirs of the lst defendant. In the additional written statement filed by **-6-** ## **S.A.No.267/2001** the additional defendants 4 to 8 original contentions raised were given a go by and totally different defence was set up. They have admitted the execution of Ext.B1 in favour of Kalyani, who is the mother of the 2[nd] defendant and grandmother of 3[rd] defendant and additional defendants 4 to 8. According to additional defendants 4 to 8, 50 cents of property in R.S.No.1686/1 (suit property) was actually handed over to Kallyani as per Ext.B1 Ottikuzhikkanam deed; but in the document it is mistakenly mentioned that the property covered by the Ottikuzhikkanam deed is 50 cents in R.S.No.1686/2. According to the additional defendants, the plaint schedule property, which is comprised in R.S.No.1686/1 is the property given as per Ext.B1, but in Ext.B1 Ottikuzhikkanam deed 50 cents of property in R.S.No.1686/2 were shown due to mistake in the description. According to the additional defendants, the plaintiff obtained a sale deed with regard to the property comprised in R.S.No.1686/1, that afterwards the grand son of Raman Pillai, who is the husband of the plaintiff, cunningly manipulated things **-7-** ## **S.A.No.267/2001** and filed the suit to obtain the property which is in the possession of Kallyani and defendants for the last 50 years. Additional defendants pleaded that the right of the plaintiff, if any, is lost by adverse possession and limitation. 7. Both sides adduced oral and documentary evidence. Pws.1 and 2 and Dws. 1 and 2 were examined and Exts.A1 to A6a and B1 to B9 were marked. Exts.C1 and C1(a) are the commission report and plan. 8. Plaintiff claimed title and possession by virtue of Ext.A1 sale deed dated 5/1/1985. The property purchased under the sale deed is 52 cents in R.S.No.1686/1. The said property is scheduled in the plaint. The plaintiff's case is that defendants are in possession and enjoyment of properties lying south-east of the plaint schedule property. Admittedly, the original owner of the plaint schedule property is Raman Pillai. Plaintiff purchased the property from Ammukutty Amma, the daughter of Raman Pillai. The case set up by the defendants is that Raman Pillai executed **-8-** ## **S.A.No.267/2001** Ext.B1 Ottikuzhikkanam deed in 1119 M.E. in favour of Kallyani, who is the mother of the 2[nd] defendant. As per Ext.B1, Raman Pillai transferred 50 cents of property in R.S.No.1686/2 (old Sy.No.2593) to Kallyani. The plaint schedule property is comprised in R.S.No.1686/1 (old Sy.No.2592). Defendants 1 to 3 in their joint written statement stated that they obtained the property in R.S.No.1686/2 (old Sy.No.2593) by virtue of Ext.B1 Ottikuzhikkanam deed and also the plaint schedule property by an oral lease. After the death of the lst defendant, defendants 2 and 3 were recorded as legal heirs and additional defendants 4 to 8 were impleaded as his legal heirs. Written statement was filed by the additional defendants 4 to 8 on 28/11/1997 wherein it is stated that the plaint schedule property was actually handed over to the predecessor of the defendants as per Ext.B1 and that in Ext.B1 it is wrongly described the property as 50 cents in R.S.No.1686/2 (old No.2593). In the original written statement the stand of the defendants was that they obtained Ext.B1 property and in addition **-9-** ## **S.A.No.267/2001** to that they claimed right over the plaint schedule property by virtue of oral lease. Altogether inconsistent plea was set up in the additional written statement claiming mortgage right over the plaint schedule property. Admittedly, the defendants are in possession of the property lying on the south-east of the plaint schedule property. It is not explained as to how they obtained the property lying adjacent to the plaint schedule property. Exts.C1 is the report and C1(a) is the plan prepared by the Commissioner. The Commissioner was examined as PW2. In Ext.C1(a) plan the Commissioner stated that the defendants are in possession of the property lying on the south-east of the plaint schedule property. Commissioner also noticed that the southern property in the possession of the defendants is purambokku land comprised in R.S.No.1686/3. The property comprised in R.S.No.1686/2 (old Sy.No.2593) is lying on the south-east of the plaint schedule property. That property is found to be in the possession of the defendants. Thus the defendants are in possession of the property **-10-** ## **S.A.No.267/2001** in R.S.No.1686/2 that lies on the south-east of the plaint schedule property. The Commissioner identified and located the plaint schedule property comprised in R.S.No.1686/1. The property comprised in R.S.No.1686/1 is claimed by the plaintiff by virtue of Ext.A1 sale deed. The property in Ext.B1 Ottikuzhikkanam deed in the name of the predecessor-in-interest of the defendants is comprised in R.S.No.1686/2. That property was identified and located as lying on the sough-east of the plaint schedule property. Going by Ext.C1(a) plan it is seen that apart from the property comprised in R.S.No.1686/2 as mentioned above, defendants are in possession of the property comprised in R.S.No.l686/3, which is found to be Purambokku land. Both properties are lying contiguous. The residential building is situated in the property comprised in R.S.No.1686/3 lying on the south of the plaint schedule property. The Commissioner noted that 1/2 cent of property out of 52 cents is occupied by a portion of the house of the defendants. **-11-** ## **S.A.No.267/2001** 9. The trial court took the view that it is the duty of the plaintiff to direct the Commissioner to find out the property mentioned in Ext.B1 mortgage deed. The trial court also relied on the deposition of PW2. He testified before the court that the defendants are in possession and enjoyment of the plaint schedule property for the last 44 years. Stating the two reasons mentioned above, the trial court concluded that there was a mistake in survey number in Ext.B1 and it was not corrected. 10. The plaintiff in fact took out a Commission for identification of the plaint schedule property. The Commissioner identified the plaint schedule property and reported that the plaint schedule property is comprised in R.S.No.1686/1 (old Sy.No.2592). The title claimed by the plaintiff by virtue of Ext.A1 sale deed covers an item of 50 cents in R.S.1686/1. The Commissioner also identified the adjacent property lying on the south-east in Sy.No.1686/2 (old Sy.No.2593). This survey number property is described in Ext.B1 Ottikuzhikkanam deed claimed by **-12-** ## **S.A.No.267/2001** the defendants. The suit is filed for declaration of title, possession, putting up boundary and for consequential injunction. The Commissioner located both properties comprised in R.S.Nos.1686/1 and 1686/2. Defendants have not produced any documents other than Ext.B1 in support of their title. In the original written statement their case is that Ext.B1 property is separate property. According to the defendants, they also obtained the plaint schedule property by an oral lease. Defendants have not adduced any evidence to prove that they have obtained the plaint schedule property by an oral lease. In the written statement filed by defendants 4 to 8 they contended that there is a mistake in the survey number noted in Ext.B1and that the property mentioned in Ext.B1 deed is in R.S.No.1686/1 and not in 1686/2. The new case set up is that Ext.B1 deed relates to the plaint schedule property. I do not find any legal evidence to support the contentions raised by the additional defendants 4 to 8. 11. The trial court, after recording the finding that there **-13-** ## **S.A.No.267/2001** is a mistake in survey number in Ext.B1, proceeded to decide the title in favour of the defendants. The trial court believed the oral evidence of the defendants and relied on Exts.B8 series of tax receipts produced by the defendants. In fact, in the tax receipts also the survey number is shown as 1686/2 (old Sy.No.2593). On the basis of the finding that there is a mistake in survey number in Ext.B1, the trial court observed that much importance cannot be given to the tax receipts produced by the plaintiff. The trial court also believed the contention of the defendants that the plaintiff's husband came to know about the mistake in survey number in Ext.B1 document and obtained Ext.A1 sale deed in the name of his wife and immediately thereafter the suit was filed to harass the defendants. The trial court disbelieved the case of the plaintiff that the defendants made an additional construction in the year 1989 to their house which is situated in the thodu purambokku and encroached the plaint schedule property. The Commissioner, who visited the property in 1991 after about five years of the filing of **-14-** ## **S.A.No.267/2001** the suit, reported that the house of the defendant is having an age of six years. In fact, the age reported by the Commissioner is also an indication supporting the case of the plaintiff that the defendants made an additional construction to their house by encroaching a small portion of the plaint schedule property. The trial court also found that the house of the defendant is situated on the southern boundary of the plaint schedule property and that if the plaintiff and her predecessors were in possession and enjoyment of the suit property, there ought to have been clear cut boundaries on southern and eastern sides of the property. The trial court observed that this aspect clinches the issue in favour of the defendants and concluded that Kallyani and after her death the defendants are in possession and enjoyment of the plaint schedule property. The trial court dismissed the suit. 12. The Lower Appellate Court held that Ext.A1 shows that Ammukutty Amma, who is a vendor of Ext.A1, obtained the property on the strength of a deed of Will executed by Raman **-15-** ## **S.A.No.267/2001** Pillai in favour of Ammukutty Amma. The Appellate Court noticed that the deed of Will was produced during the pendency of the appeal and observed that no attempt was made to prove the same. Both courts below had noticed the fact that the properties described in Exts.B1 and A1 are lying in two different survey numbers. In the written statement originally filed the defendants have no case that both the properties are one and the same. At the same time, they contended that in addition to Ext.B1 property they obtained the plaint schedule property by way of oral lease. Subsequently, additional defendants 4 to 8 filed written statement in 1987 wherein it is stated that they obtained the plaint schedule property as per Ext.B1 document. In fact, there was a written statement and additional written statement in the suit. Additional defendants 4 to 8 were impleaded as the legal heirs of the deceased lst defendant. In the written statement filed by additional defendants 4 to 8, who are some of the legal heirs of the deceased lst defendant, they have contended that the plaint schedule **-16-** ## **S.A.No.267/2001** property and the property in Ext.B1 are one and the same. There is total inconsistency in the pleas by the defendants in the subject matter of the suit. The Appellate Court also believed the oral evidence of the defendants and agreed with the findings of the trial court. Both courts below did not notice the fact that the defendants are in possession and enjoyment of the property in R.S.No.1686/2 (old Sy.No.2593), apart from claiming title and possession of the plaint schedule property. Defendants have only one document of title (Ext.B1) that covers 52 cents. If they obtained the property under Ext.B1, it is not explained how they came into possession of the property in R.S.No.1686/2 that lies on the south-east of the plaint schedule property. The court held that Ext.B1 property is comprised in R.S.No.1686/2. There is every reason to believe that they obtained the property under Ext.B1 that lies on the south-east of the plaint schedule property. The trial court as well as the Appellate Court entered a finding that there is a mistake in the survey number in Ext.B1 and the case was appreciated after **-17-** ## **S.A.No.267/2001** entering the said finding. On an examination of the reasons stated for finding that there is a mistake in the survey number in Ext.B1, this Court is of the view that the reasons stated are not sufficient to enter such a finding. In this case the defendants stated that the 2[nd] defendant alone was examined. New plea was raised by the additional defendants 4 to 8. Nobody was examined on their side to prove their contention that the plaint schedule property is the property covered by Ext.B1. The material contradiction between the written statement filed by defendants 1 to 3 and additional written statement filed by defendants 4 to 8 was not considered or appreciated by the fact finding court. The fact that nobody was examined to substantiate the case set up in the additional written statement filed by defendants 4 to 8 was also not considered or appreciated by the fact finding courts. The courts below failed to peruse Exts.A1 and B1 documents and to notice the fact that the boundaries of the properties mentioned in the above-said two documents are entirely different. The circumstance under which **-18-** ## **S.A.No.267/2001** the defendants came into possession and enjoyment of the property in R.S.No.1686/2 lying on the south-east of the plaint schedule property was not considered. The findings of the courts below that the defendants are in possession of the plaint schedule property are also based on the location of the portion of the residential house abutting the plaint schedule property. The contention of the plaintiff that the portion was abutting the plaint schedule property was also not appreciated by the courts below in the right spirit. 13. Learned counsel for the appellants contended that the findings of the courts below that in view of the mistake in the survey number, the boundary of the property has to be looked into is also without any basis. According to the learned counsel, the boundary of Exts.A1 and B1 properties is entirely different and there is no justification to conclude that the property is one and same. The court below failed to appreciate the oral evidence tendered by the 2[nd] defendant, who was examined as DW1. The learned counsel for the appellant also relied on the decision **-19-** ## **S.A.No.267/2001** reported in **Chandramathy v. Devakey Amma (2010 (4) KLT 465)** in which this Court held that merely because the defendants in a suit for fixation of boundary had set up a claim of possession over the suit property, plaintiff need not seek for recovery of possession by amending the plaint. This Court also held that the merit of the claim of possession set up by the defendant has to be examined with reference to the materials tendered in adjudging the decree applied for by the plaintiff. 14. In these circumstances, this Court is of the view that the courts below failed to take into consideration the important circumstances and material evidence produced by the parties. The courts below entered into the findings without appreciating the facts and circumstances of the case. In these circumstances, this Court is of the view that the matter requires reconsideration. In the result, the appeal is allowed. The judgments and decrees passed by the courts below are set aside. The case is **-20-** ## **S.A.No.267/2001** remanded to the trial court for fresh consideration. The trial court shall dispose of the suit within a period of six months from the date of receipt of a copy of the judgment. No order as to costs. **HARUN-UL-RASHID, JUDGE.** **kcv.** **-21-** ## **S.A.No.267/2001** HARUN-UL-RASHID, J. -----------------------------------S.A.NO. 267 OF 2001 ------------------------------------ **JUDGMENT** 28th March, 2012