Kerala High Court
Vallikunnil Janaki Amma vs Unknown on 13 November, 2013
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM [CR]
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935
RSA.No. 259 of 2013 ()
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AS 130/2010 of I ADDL.SUB COURT, KOZHIKODE
OS 988/1997 of ADDL.MUNSIFF COURT-II, KOZHIKODE
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APPELLANT(S)/APPELLANTS IN AS/DEFENDANTS 1 TO 3 AND 5 TO 9 IN OS:
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1. VALLIKUNNIL JANAKI AMMA, W/O.LATE KUTTIPURATH
KARUNAKARAN NAIR, AGED 75 YEARS,
VALLIKUNNUPARAMBA, PANTHEERANKAVU, P.O.,
PERUMANNA AMSOM VELLAYIKODU DESOM, KOZHIKODE.
2. SUMA, AGED 55 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU, P.O,
PERUMANNA AMSOM VELLAYIKODU DESOM, KOZHIKODE.
3. VIJAYAN, AGED 51 YEARS, S/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU P.O.,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
4. SANTHA, AGED 47 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU P.O.,
PERUMANNA AMSOM VALLAYIKODU, DESOM, KOZHIKODE.
5. RADHA, AGED 43 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU P.O,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
6. PREMA, AGED 39 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU, P.O,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
7. MINI, AGED 37 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU, P.O,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
8. SAVITHRI, AGED 35 YEARS, D/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU, P.O,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
9. AJAYAN, AGED 33 YEARS, S/O.JANAKI AMMA,
VALLIKUNNUPARAMBA, PANTHEERANKAVU P.O,
PERUMANNA AMSOM VELLAYIKODU, DESOM, KOZHIKODE.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
SRI.P.S.RAMALINGAM
RSA.No. 259 of 2013
RESPONDENT(S)/RESPONDENTS IN AS/PLAINTIFF IN OS AND DEFENDANT
NO.4 IN OS :-
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1. SREE AMRUTHAMANGALAM KSHETHRAM MOORTHI
REPRESENTED BY ITS NEXT FRIEND
SREE AMRUTHAMANGALAM DEVASWAM EXECUTIVE OFFICER,
P.T.MURALEEDHARAN, S/O.K.V.KRISHNAVADYAN,
PANTHEERANKAVU, PERUMANNA AMSOM,
VELLAYIKODU DESOM KOZHIKODE - 673 026.
2. SATHYABHAMA, AGED ABOUT 50 YEARS,
D/O.JANAKI AMMA, VALLIKUNNUPARAMBA,
PANTHEERANKAVU P.O, PERUMANNA AMSOM VELLAYIKODU
DESOM KOZHIKODE TALUK - 673 026.
R1 BY ADV. SRI.V.V.SURENDRAN
SRI.P.A.HARISH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K.BALAKRISHNAN, J. [CR]
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R.S.A. No. 259 of 2013
......................................
Dated this the 13th day of November, 2013
J U D G M E N T
Defendants who concurrently suffered a decree for recovery of possession are the appellants. The suit was filed by Sri. Amruthamangalam Kshethram represented by the Devaswom Executive Officer. It is contended that the plaint schedule property belonged to Amruthamangalam Devaswom and that the defendants have trespassed into the said property and reduced it to their wrongful possession. It was contended that as per the order of this Court in CRP 1651/1990 the Commissioner, Hindu Religious and Charitable Endowment Board, Kozhikode had issued a Circular dated 4-2-1997 and directed the Devaswom to inquire and report about the unlawful possession and enjoyment of the properties belonging to the devaswom. Thus the plaintiff came to know that the defendants have trespassed into the plaint schedule property and reduced R.S.A. No. 259 of 2013 -: 2 :- the same to their wrongful possession. A notice was sent to the defendants intimating the said fact. Since they did not surrender possession, the suit was filed.
2. Defendants filed written statement contending as follows :
Amruthamangalam Devaswom has no title to the property. The plaint schedule property belonged to Tharayil Mullappalli Achuthan Namboodiri from whom the husband of the first defendant had taken 75 cents of land on lease. The property is comprised in RS. No. 101/2. The lease was obtained in the year 1961 and since then Karunakaran Nair, the husband of the first defendant and thereafter the defendants have been in possession of the property. The Land Tribunal assigned jenm right in respect of the said property as per OA 7446/1975. When the appeal filed by the 5th respondent in the O.A. was pending, the defendants herein could not conduct the case and so the appeal was allowed setting aside the order of the Land Tribunal. The plaintiff has absolutely no right to recover possession of the R.S.A. No. 259 of 2013 -: 3 :- property since it has no title. Only the family members of Achuthan Namboothiri got right over the property and thus the defendants resisted the suit for eviction.
3. Before the trial Court, Executive Officer of the Devaswom was examined as P.W.1 and Exts. A1 to A6 were marked. The first appellant herein was examined as DW1 and Exts.B1 to B9 (b) were marked. The learned Munsiff, after elaborate discussion of the entire pleading and evidence found that the lease set up by the appellants herein is unacceptable. It was also held that the lease is hit by Sec. 29 (1) of the Madras Hindu Religious and Charitable Endowments Act,1951. No lease of temple property can be granted without the sanction of the Commissioner (HR & CE Board ) . It is further contended that though the Land Tribunal passed an order in favour of the appellants herein that was set aside by the Appellate Authority and the judgment of the Appellate Authority became final and as such the plea of tenancy now set up by the appellants cannot be sustained. Though a plea of adverse possession R.S.A. No. 259 of 2013 -: 4 :- was also set up by the defendants that was also found against by the learned Munsiff. Hence, the suit was decreed granting recovery of possession.
4. Though the defendants contended that plaintiff Devawom had no title to the property, Ext. A2 the certified extract of the Settlement Register was accepted by the learned Munsiff to hold that in the absence of any other evidence, it can be found that the Devaswom was having title to the property. Since the defendants could not prove their right to be in possession of the property, to resist the suit for rejectment, the trial Court granted a decree as prayed for. The learned Sub Judge concurred with the view taken by the trial court.
5. The following substantial questions of law have been framed :-
(i) Are the courts below justified in decreeing the suit without considering documents produced in trial court and also without considering the documents at appellate stage including the deeds as well as judgment and decree in R.S.A. No. 259 of 2013 -: 5 :- O.S.No.991 of 1997 by dismissing I.A.No.3060 of 2011 filed by the appellants before the Appellate Court praying for accepting the said documents.
Has not the Appellate Court has dismissed I.A.No.3060 of 2011 for perverse reasons stated in the Appellate judgment ?
(ii) Can the entries in the settlement register be considered as document of title more so when Exhibit A2 settlement register will not show any thing in favour of plaintiff ? Are not the findings of the courts below regarding title solely based on Exhibit A2 entry in the settlement register unsustainable ? Have the plaintiff discharged its burden of proof of title by producing Exhibit A2 copy of settlement register ?
6. An application was filed by the appellants before the appellate court as I.A. No. 3060/2011 to receive additional documentary evidence but that was rejected holding that there was no reasonable explanation for the non-production of the documents before the trial court. It was observed by the lower appellate court that even without the documents sought to be received, the Court can pronounce a correct judgment without any difficulty and as R.S.A. No. 259 of 2013 -: 6 :- such that application for reception of additional evidence filed under Order XLI Rule 27 was dismissed.
7. Sri.P.S.Ramalingam, the learned counsel for the appellants has vehemently argued that the courts below did not take note of the fact that the plaintiff Devaswom could not prove its title to the plaint schedule property. Ext.A2 is only a certified extract of the Adangal or Settlement Register which by itself will not prove the plaintiff's title to the property and in the absence of any other document, the courts below should not have found that the plaintiff has title to the property, it is argued. The lower appellate court should have received additional evidence (documents) produced by the appellants since those documents would clearly prove that the plaintiff had no title to the property and so serious prejudice was caused to the appellants, it is further argued.
8. It is further submitted that though the Appellate Authority (Land Reforms) allowed the appeal filed by the plaintiff Devaswom and though the order passed by the R.S.A. No. 259 of 2013 -: 7 :- Land Tribunal was set aside that is no reason to say that the plaintiff is entitled to get recovery possession of the plaint schedule property unless it is proved to the satisfaction of the court that the plaintiff has title to the property. In other words, the learned counsel would submit that if there are documents to show that the plaintiff Devaswom was divested of its title to the plaintiff schedule property, then certainly the defendants cannot be ejected from the suit property.
9. The learned counsel Sri. Harish appearing for the respondents would strongly oppose the submission so made by the learned counsel for the appellant. It is pointed out that the lease set up by the appellants was found against by the Appellate Authority and so there is no merit in the contention now advanced by the appellants that the plaintiff has no title to the property. It is also argued that though the case set up by the defendants is that Karunakaran Nair the husband of the first defendant had obtained oral lease of the property from Tharayil Mullappalli Achuthan R.S.A. No. 259 of 2013 -: 8 :- Namboodiri, there is nothing to show that Achuthan Namboodiri was impleaded as one of the respondents in the application filed before the Land Tribunal. If Achuthan Namboodiri subsequently died, his legal representatives should have been brought on record. That also is not seen from the record. Whatever that be, the evidence would clearly show that the property belonged to Amruthamangalam Devaswom as could be seen from Ext.A2 and other documents on record. It is true that the original title deed of the property is not produced. But that does not mean that the defendants/appellants have possession of the suit property.
10. It is the admitted case that this property is situated very adjacent to Amruthamangalam Kshethram. According to the plaintiffs the plaint schedule property was allowed to be cultivated by Karunakaran Nair only for one year in the year 1151 M.E. and that was the reason why in the original application filed before the Land Tribunal, it was stated that the lease was obtained in the year 1966. Later, R.S.A. No. 259 of 2013 -: 9 :- the appellants found the insurmountable difficulty of sustaining a plea of tenancy, in view of the fact that it is hit by Sec. 74 of the Kerala Land Reforms Act, as the alleged lease was after 1-4-1964. Hence, they amended the original application stating that the lease was obtained in the year 1961. The receipt for payment of rent for the period prior to 1966 was not produced. It is also important to note that admittedly no order of sanction was passed by the Commissioner (HR & CE), permitting grant of lease of the Devaswom property. Even according to the appellant, the lease was granted only by one Ooralan.
11. As per Ext. A2, the adangal extract it is seen that the property belonged in jenm to Amruthamangalam Devaswom which was managed by the three Ooralans. Ext.A2 shows that Tharayil Mullappali Achuthan Namboothiri, Puliyil Pilassseri Sreedharan Namboodiri and Palisseri Krishnan Namboodiri were the three Ooralans of Amruthamangalam Devaswom. It is pointed out that this extract was prepared at an undisputed point of time and R.S.A. No. 259 of 2013 -: 10 :- there is nothing to doubt the correctness or credibility of Ext.A2. It is shown therein that the property measuring a total of 5 acres and 4 cents comprised in Sy. No. 101/2 which was described as Mundilakam Nilam stood in the name of Amruthamangalam Devaswom. Other items of properties are also shown to be the properties held by the Devaswom. If it is proved that the property belonged to the Devaswom then the lease pleaded by the defendants cannot be sustained because no sanction was granted by the Commissioner (HR & CE) for granting lease of the Devaswom property. Exts. B1 to B5 are the ration cards produced by the appellant to contend that the aforesaid 75 cents of land was shown in some of the ration cards as the property being cultivated by the appellants. But it is important to note that these entries are not for the period prior to 1964.
12. Ext. B6 is the certified copy of the deposition of deceased Karunakaran Nair, given before the Land Tribunal. The contention that plaint schedule property was obtained in R.S.A. No. 259 of 2013 -: 11 :- 1961 was challenged in cross-examination. The specific case put to him was that only for one year; that is for the year 1150-51 ME only, the property was entrusted for cultivation and that no lease was granted in 1961 or during any other period as alleged by the appellants. Ext. B7 is the certified copy of the deposition given by Sri. Govindan Namboodiri, one of the landlords shown in the proceedings, before the Land Tribunal. He has countered the evidence given by the deceased husband of the first appellant.
13. It is contended by the respondents that when the order passed by the Land Tribunal was set aside as per the judgment of the Appellate Authority (Land Reforms) as evidenced by Ext. A6, Karunakaran Nair, the husband of the first appellant surrendered the property to the Devaswom and thereafter in 1995-1996 the property was again trespassed upon. It is admitted by DW1 that after 1995 the Peoples' Committee of that locality has been managing the affairs of the temple.
14. DW1 has admitted that she does not know R.S.A. No. 259 of 2013 -: 12 :- anything about the property or transaction which took place prior to her marriage. She has no direct knowledge regarding the lease alleged to have been obtained by her husband from Achuthan Namboothiri. She is also not in a position to state how many Ooralans are there for Amruthamangalam Temple. She does not deny the fact that Krishnan Namboodiri and Neelakandan Namboodiri who are shown as the respondents in the Land Tribunal proceedings were the Ooralans of the temple. In the proceedings before the Land Tribunal deceased Karunakaran Nair had shown five respondents as the Ooralans of the temple. There is no case for the appellants that the alleged lease was granted by all the five Ooralans of the temple. Though it was stated that Achuthan Namboodiri was impleaded in the O.A. proceedings, there is nothing on record to show that Achuthan Namboodiri who was then alive was impleaded in the O.A. proceedings (proceedings before the Land Tribunal). DW1 admits that her husband Karunakaran Nair died in the year 1988. When questions were put to DW1 as R.S.A. No. 259 of 2013 -: 13 :- to whether she was in possession of the documents which were produced by her husband before the Land Tribunal, she stated that those documents were not with her. No petition was filed before the trial Court to summon the O.A. file from the Land Tribunal to get all the original documents which were stated to have been produced before the Tribunal. The certified copies of the documents were produced in the suit.
15. Sri. Ramalingam, the learned counsel for the appellants would submit that the appellants subsequently came to know that the first respondent herein had filed a suit as O.S. 991/97 before the Munsiff's Court, Kozhikode against one Palissery Mullappallly Neelakandan, in respect of 60 cents of land situated in the very same survey number, seeking recovery of possession on the strength of title. It was stated that the aforesaid suit was dismissed by the trial Court and the appeal filed by the first respondent in that suit was also dismissed. That is not of any consequence so far as the case on hand is concerned. It is R.S.A. No. 259 of 2013 -: 14 :- submitted by the learned counsel for the appellant that on coming to know of the fact that certain documents which are relevant for the purpose of this case were produced in O.S. 991/1997 the appellants applied for the certified copies of the same and since those documents were found to be relevant all those documents were produced before the lower Appellate Court seeking reception of those documents. The learned counsel would submit that the documents produced before the lower appellate Court as per I.A. 3060/2011 would include the certified copies of verumpatta kychit dated 10-5-1921, release deed dated 14- 6-1945 executed by Sankaran Nair and others in favour of the son of Mullappali Achuthan Namboodiri, release deed dated 17-5-1945, partition deed dated 20-8-1979 and verumpattam assignment deed dated 20-08-79 and also verumpattam assignment deed dated 17-1-1990. Sri. Ramalingam would submit that the lower appellate court should have accepted the reasons stated in the petition for non-production of the documents earlier since it was R.S.A. No. 259 of 2013 -: 15 :- specifically averred that the appellants came to know about the documents only later. It is argued that for a proper adjudication of the issue involved in the case, the lower Appellate court should have accepted those documents and the suit should have been remanded to the trial court so as to enable the appellants herein to adduce further evidence pertaining to those documents. Hence, the learned counsel submits that serious prejudice was caused to the appellants.
16. But this submission made by the learned counsel is strongly opposed by the learned counsel appearing for the respondents. It is submitted that those documents were not received by the lower appellate court in view of the fact that those documents are totally unnecessary and irrelevant for the adjudication of the real issue involved in this matter. It is submitted by the learned counsel that though in the original application before the Land Tribunal it was stated that the lease was obtained in the year 1966, subsequently the year was amended as 1961 to suit the convenience of the appellants. That apart, except one R.S.A. No. 259 of 2013 -: 16 :- receipt which was admitted before the Land Tribunal as the one issued by the Ooralan which was of the year 1150-1151 (corresponding to 1976) no other receipt was produced. That was the only receipt accepted by the landlords. No other receipt was accepted. Karunakaran Nair was entrusted to cultivate the property only for one year and not thereafter. Be that as it may, there was a specific plea that the plaintiff/Devaswom had no title to the property. On going through the pleading and evidence in its entirety it can be found that the property belonged to the Devaswom and that was the reason why even in the O.A(proceedings before the Land Tribunal) all the five ooralans of the temple were impleaded. But at the same time Mallappaly Achuthan Namboodiri was not impleaded.
17. Ext.A6, the appeal judgment passed by the Appellate Authority shows that the appeal was filed by the Ooralans of one of the tarwads and the Ooralans of the other tarwad and also Amruthamangalam Devaswom were shown as the respondents. Ext.A6 has become final. Therefore, R.S.A. No. 259 of 2013 -: 17 :- the appellants herein are estopped from contending that those Ooralans had absolutely no right over the property. Since the appellants claimed tenancy under the Devaswom (because Ooralans of the temple were made parties to the Original Application (OA)) they are estopped from denying the title of the Devaswom, in view of Sec.116 of the Evidence Act. It is in this context the relevancy of Ext.A2 also arises for consideration.
18. Even though Ext.A2 is only an extract of the Settlement Register/Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all. R.S.A. No. 259 of 2013 -: 18 :-
19. It was held by the Hon'ble Supreme Court of India in Sukhdev Singh v. Maharaja Bahadur - AIR 1951 SC 288 :
"There can be no doubt that prima facie the fact that the tenure was included in the Permanent Settlement of the zamindar and under the settlement the ghatwal had to pay rent to the zamindar raises a presumption that the ghatwal was in some way connected with the zamindar, but it must be recognized that the permanent settlement of the land would not affect the tenure of the tenancy upon which the lands were held, nor can it convert the services which were public into private services under the zamindar".
It was further held by their Lordship in the same decision :
"The fact that the tenure is included within a zamindary and is covered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is dependent upon the zamindary. In this case the presumption arising under the Permanent Settlement is reinforced by the entry in the Record of rights which shows that the tenure in question is istemrari mokkari held under the zamindar"
Finally analysing the evidence, their Lordships held:
"Evidence is sufficient to show that appellant has not R.S.A. No. 259 of 2013 -: 19 :- been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim".
20. Therefore, though the entries in the Settlement Register or patta granted are not by themselves document of title, in the absence of any other documents showing better title, the entries in the Settlement Register can be relied upon to uphold the title set up in this case. The same is the view taken by this Court in Narayanan Nambiar v. Raman Chettiar - 1969 KLT 449. Relying on these decisions, it was held by a Division Bench of this Court in Kunhettan Raja v. Kutty Anujan Thampuran (AFA 120/1991 dated 6-10-2003) :
"The learned counsel for the plaintiffs has argued that Adangal is a reliable record. The learned counsel invited our attention to page 130 of the book by name Land Systems in British India written by B.H. Baden- Powell,volume No. III, wherein the value of Settlement Register is stated. It is stated that under Ryotwari system every registered holder of the land is recognised as its proprietor. The importance of Settlement Register was considered by P.R. Sundara Aiyar in the book Malabar & Alyasanthan Law, 1922 Edition. In paragraphs 172, 173 R.S.A. No. 259 of 2013 -: 20 :- and 174 at pages 284 to 288 the method of preparation of Settlement Register is referred. It is to be noted that the Re-survey Settlement was effected between 1932 and 1934 and this book was written long prior to that period in the year 1922. At page 287 of the book, the author had referred to a decision of the Madras High Court in A.S.284 of 1898, in which it was held that these documents can be admitted in evidence in proof of possession and these accounts may be admitted as evidence of title under Section 13 of the Evidence Act. The learned author had referred to Madras Land Registration Act (Act 3 of 1896). This enactment deals with the preparation of Settlement Registers. It shows that before preparing the Settlement Register, an enquiry was conducted by the collector and the persons, whose name is entered in the register, shall be deemed to be proprietors subject to the right of other persons interested to challenge that entry".
21. Therefore, relying on the above decisions, Sri. Harish the learned counsel appearing for the respondents would submit that though the entries in the Settlement Registers cannot by themselves be treated as documents of title, the entries are prima facie evidence of title, in the absence of any other document of title.
22. It was held by the Apex Court in Narayana Prasad Agarwal v. State of M.P. - AIR 2007 Supreme R.S.A. No. 259 of 2013 -: 21 :- Court Weekly 4165 that record of right is not a document of title but it was held that entries made therein in terms of Sec. 35 of the Indian Evidence Act are admissible as a relevant piece of evidence and the same may also carry a presumption of correctness but the presumption is rebuttable. A revenue record is not a document of title. But it merely raises a presumption in regard to title. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of Evidence Act. Based on this, Sri. Harish, the learned counsel would submit that there is no document to show that the entries in Ext.A2 are patently wrong nor was any document produced to show that the Devaswom was divested of its title to the property or that somebody else was the title holder of the property. Hence, the finding of fact entered by the courts below that the property belonged to the Devaswom cannot be upset.
23. The decision in Narayana Prasad Agarwal was followed by the Supreme Court in Gurunath Manohar R.S.A. No. 259 of 2013 -: 22 :- Pavaskar v. Nagesh Siddappa Navalgund - AIR 2008 SC 901 . The aforesaid view was taken by the Hon'ble Supreme Court in Gurunath Manohar's Case (supra) was again followed by the Hon: Supreme court in State of A.P. and Others v. Star Bone Mill & Fertiliser Co. 2013 STPL (Web) 156 SC. Sri. Harish would submit that the appellants failed to rebut that presumption by producing better documents. Not only that the Land Tribunal in which the appellants were parties and other records would show that the suit property belonged to Amruthamangalam Devaswom and that it was managed by five Ooralans. Out of them, the names of three Ooralans are mentioned in the Settlement Registers also. In such circumstances, the contention that the Devaswom had no title to the property cannot be accepted at all.
24. The contention that was vehemently advanced by Sri. Ramalingam, the learned counsel for the appellants is that whatever title which the Devaswom, even if it had, was divested of or lost in view of the fact that there was R.S.A. No. 259 of 2013 -: 23 :- partition among the Ooralans' family. It is submitted that it was for that purpose certified copies of some documents were produced before the lower appellate court but the lower appellate court unjustly turned down the request for reception of the documents. But this submission is also stoutly refuted by Sri. Harish, pointing out that even the documents produced by the appellants would show that Amruthamangalam Devaswom was having title to the property. Reference made about some of these properties in the partition deed among the family members of the Ooralans but that will not take away the paramount title which the idol/deity had over the suit property.
25. The lower appellate court has assigned cogent reasons for not admitting those documents at the appellate stage. However, to satisfy the judicial conscience, I have gone through those documents to find whether the reception of those documents is actually necessary for a just decision of this case. As I have stated earlier, the judgment in O.S. 991/1997 can have no bearing on this R.S.A. No. 259 of 2013 -: 24 :- case since that suit was pertaining to another property and against another party. Not only that the appeal filed against that judgment is stated to be pending.
26. It is pointed out by Sri. Harish that in one of the documents sought to be relied upon by the learned counsel for the appellant, in fact it was mentioned that suit property and other properties belonged to Amruthamangalam Kshethram. Therefore, the contention that the temple had absolutely no title to the suit property cannot be sustained.
27. One receipt stated to have been issued by Achuthan Namboodiri/Neelakandan Namboodiri is dated 28.7.1975. That receipt itself shows that the property mentioned therein was given to Karunakaran Nair - the husband of Janaki for one year in 1975. Therefore, that will not come to the rescue of the appellant. On the other hand that will actually demolish the case of the appellant that the predecessor of the appellant was granted lease of the property in 1961. As stated earlier the case originally R.S.A. No. 259 of 2013 -: 25 :- set up was that the lease was granted in 1966. Another document is the certified copy of document No.2056/1945. It is only the release deed executed by some of the Ooralans in favour of the members of jenmi family. There is nothing in that document to show that the plaintiff - Temple was not having title to this property.
28. The certified copies of the document No.3177/1979, document dated 17.1.1979 and document no.338/1993 produced by the appellants also have no relevance to the facts of this case. All those documents were entered into among the members of the Ooralan family which, cannot in any way affect the right of the Devaswom especially because all those transactions were entered into after 1.1.1970. I could not see any stipulation in any of those documents which would scuttle the plea raised by the plaintiff - Devaswom. The learned counsel for the appellants also could not show to me any specific recital in any of those documents to prove that the title of the Devaswom was lost. The certified copies to the two documents of the year 1899 R.S.A. No. 259 of 2013 -: 26 :- were also produced. These documents also do not contain any recital which would affect the title of the plaintiff - Dewaswom. It is seen that all these documents were produced in O.S. No.991/1997. The copies of the judgment in that suit also has been produced by the appellant to contend that similar contentions were raised in that suit. The judgment in that case has absolutely no bearing on the fact of this case. The property is different, the parties are different and the cause of action is also different.
29. The 1st appellant herein was examined before the trial court as DW1. She has absolutely no knowledge regarding the lease set up in this case. She has admitted that she did not see the transactions referred to in the plaint. It was admitted that the suit property is just adjacent to the plaintiff - Temple. She feigns ignorance as to whether Krishnan Namboodiri and Neelakandan Namboodiri are the Ooralans of that temple. Exhibits B2 to B5 - the ration card and other documents obtained after Ext.A6 judgment are not of any consequence. It was R.S.A. No. 259 of 2013 -: 27 :- admitted by DW1 that there is no document to show that rent was given to Achuthan Namboodiri. It was also admitted by DW1 that after 1995 the temple is being managed and administered by a committee formed by the people of that locality.
30. As observed earlier, since no sanction was obtained for granting leave as required under Sec.29(1) of the Hindu Religious and Charitable Endowment Act, it has to be stated that there could be no valid lease. The effect of want of sanction as aforesaid would make a lease null and void. If so, even a plea of deemed tenancy cannot be entertained (see the unreported decision of the Division Bench of this Court in Sri.Sekhari Varma Valiya Raja (Died) and another v. M/s.T.M.Chacko & Company Private Ltd. and another [A.S.No.820 of 1998 dated 28.9.2001].
31. Ext.B6 is the statement given by deceased Karunakaran Nair, the husband of DW1 before the Land Tribunal. It was admitted that in the application he had R.S.A. No. 259 of 2013 -: 28 :- originally stated that his possession and lease was from 1966. He contends that it was a mistake. But it is also worthwhile to note that even according to him, lease was given to him by the landlord Achuthan Nair only in 1143 (ME) which would correspond to the year 1968. That would only run counter to the plea raised by the appellants that the tenancy commenced in 1961. No receipt whatsoever was produced by him before the Land Tribunal to show that he had paid rent to the jenmi prior to 1.4.1964.
32. As stated earlier, the learned counsel for the appellants could not point out any reference in any of the documents which were produced by the appellants before the lower appellate court to indicate that there was a lease in 1961 or that the appellants' predecessor was in possession of the property since 1961. There was only a vain attempt made by the appellants to have a luxury of remand of the suit only to see that the appellants can cling on to the possession of the property for some more years. There was absolutely no justification for reception of those R.S.A. No. 259 of 2013 -: 29 :- documents by the lower appellate court since those documents are totally irrelevant.
33. It is pointed out by the learned counsel for the appellants that the contention raised by the defendants in O.S. 991/1997 is to the effect that the property mentioned therein was originally obtained by Mullappally Illam as per a registered kychit of 1899 and later a partition deed was entered into and in that partition deed the property mentioned in O.S.991/1997 was allotted to the share of Mullappali Govindan Namboodiri who is the defendant in that suit. It is also pointed out by the learned counsel that even in the petition filed in that suit it was contended that the suit property measuring 5 acres comprised in Sy. No. 101/ which is inclusive of the suit property herein belonged to Amruthamangalam Temple and that it was managed by the five trustees of the temple. It was stated that it was a private temple. Whatever that be, now it is beyond any pale of doubt that the property was controlled and governed by the provisions of the Hindu Religious and R.S.A. No. 259 of 2013 -: 30 :- Charitable Endowments Act. Therefore Sec. 29(1) of that Act is certainly applicable.
34. It was held by a Division Bench of this court in an unreported decision in A.S. No. 820/1998 (Sri.Sekhari Varma Valiya Raja (Died) and another v.
M/s.T.M.Chacko & Company Private Ltd. and another) dated 28-9-2001 as no sanction was obtained under Sec. 29 (1) of the HR & CE Act, the lease is invalid. In fact, in that case initially a sanction was granted on 2-3-1961. But that sanction was subject to scrutiny by the Government in exercise of its revisional power under Sec. 99 of the HR & CE Act. In exercise of that power, the Government set aside the order of sanction. Therefore, the effect of want of sanction under Sec. 29 of HR & CE Act would make the lease null and void. It was so held in the unreported decision cited supra.
35. In the case on hand, the lease set up was under
Tharayil Mullappalli Achuthan Namboodiri. It could be found that the property belonged to Amruthamangalam R.S.A. No. 259 of 2013 -: 31 :- Devaswom which was managed by five Ooralans. Tharayil Mullappali Achuthan Namboodiri was only one of the Ooralans. Admittedly no sanction under HR & CE was granted. Plea originally raised was that the lease was granted in 1966. Even if it is accepted that the lease set up was of the year 1961, that lease is invalid in the eye of law and as such the appellants can claim no right over the plaint schedule property. In fact the case set up by the respondents is that after Ext.A6 judgment Karunakaran Nair had surrendered possession of the plaint schedule property to the Devaswom. Even if that case is not accepted, still the appellants cannot resist the suit for eviction in view of the fact that the tenancy set up by them was found against as per Ext.A6. That has become final.
36. The only other contention that has been advanced by the learned counsel for the appellants is that in any event the plaintiff should be denied the decree of eviction since the appellants have been in continuous possession of the property for more than three decades. Possession R.S.A. No. 259 of 2013 -: 32 :- howsoever long it be, in order to enable the party to contend that they have prescribed title by adverse possession and limitation, it must also be proved that their possession was in derogation of the true owner's title. Plea of adverse possession is not a pure question of law. But a mixed question of fact and law. There is no specific case as to the date since when they started to possess the property denying the true owner's title. A person who claims adverse possession should show on what date he came into possession and what was the nature of his possession. Whether the factum of possession is known to the other party and how long his possession continued. It must also be proved that his possession was open, continuous and undisturbed. As is often said the possession should be 'nec vi nec clam nec precario' (it was peaceful, open and continuous) and that possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. (See the decisions of the Supreme Court in S.M. Karim v. R.S.A. No. 259 of 2013 -: 33 :- Bibi Sakinal - AIR 1964 SC 1254, Parsinni v. Sukhi - (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Here, the appellants set up a plea of tenancy and so their possession should be on behalf of the lessor or the landlord. Their possession did not commence from wrong. If they set up a plea of tenancy, simultaneously, they cannot set up a plea of adverse possession. If they want to set up a plea of adverse possession they must say that they did not continue as tenants from a particular point of time and that thereafter they started possessing the property adverse to the interest of the landlord and that the said possession was known to the other party as the one asserting hostile title against the true landlord (Devaswom). There is absolutely no such pleading, nor is there any evidence in this case. In view of the fact that the appellants have set up a plea of tenancy, they cannot set up a plea of adverse possession so as to perfect title by adverse possession and limitation. (See also the decision of the Hon'ble Supreme Court in P.T. R.S.A. No. 259 of 2013 -: 34 :- Munichikkanna Reddy and Others v. Revamma and Others - AIR 2007 SC 1753).
37. It was also held by the Apex Court in State of Haryana v. Mukesh Kumar and Others - (2011) 10 SCC 404:
"A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British. It is important to note that these days the English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission".
The Hon'ble Supreme Court has held in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan - (2009) 16 SCC 517 as :
"32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person R.S.A. No. 259 of 2013 -: 35 :- who had illegally taken possession of the property of the true owner. the law ought not to benefit a person who in a clandestine manner takes possession of the property of a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner."
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation".
38. So far as the present suit is concerned, one more distinguishing feature is also worthy of consideration. Sec.94 of the Hindu Religious and Charitable Endowment Act reads :
"Property of religious institutions not to vest under the Law of Limitation after commencement of this Act :-
Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act."
Here the plea of adverse possession is set up against the R.S.A. No. 259 of 2013 -: 36 :- idol/deity. Even otherwise, it is a case where the appellants set up a plea of tenancy. Therefore, their possession can never be adverse to that of the landlord. Hence, the plea of adverse possession set up by the appellants must fall to the ground. No other tenable ground survives for consideration. The substantial questions of law formulated are answered against the appellants.
In the result, this RSA is dismissed.
Sd/-
N.K.BALAKRISHNAN, JUDGE.
//True Copy// P.A. To Judge ani/jjj/jvt