Kerala High Court
Pulikkal Pathumma Umma vs State Of Kerala on 26 March, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934
RSA.No. 158 of 2008 (B)
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AS.95/2003 of SUB COURT, SULTHAN BATHERY
OS.593/2007 of MUNSIFF COURT, KALPETTA
APPELLANT/APPELLANT/PLAINTIFF:
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PULIKKAL PATHUMMA UMMA, D/O. MARAKKAR
HAJI BY POWER OF ATTORNEY HOLDER T.P.ABDULLA
QUILANDY TALUK, KOZHIKODE.
BY ADVS.SRI.K.P.BALASUBRAMANYAN
SRI.NIRMAL.S
RESPONDENTS/DEFENDANTS:
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1. STATE OF KERALA, REP. BY
DISTRICT COLLECTOR, WAYANAD DISTRICT
KALPETTA NORTH POST, WAYANAD.
2. EXECUTIVE ENGINEER (PWD ROADS),
COLLECTORATE, KALPETTA NORTH, WAYANAD.
BY GOVERNMENT PLEADER:ADV.SRI.M A ABDUL SHUKOOR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A.No.158 of 2008
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Dated this 26th day of March, 2012
JUDGMENT
This appeal arises from the judgment and decree of learned Munsiff, Kalpetta in O.S.No.593 of 2007 as confirmed by the learned Sub Judge, Sulthan Bathery in A.S.No.95 of 2003.
2. Appellant claimed that herself and one Abdurahimankutty acquired title and possession of Muthuthala estate of which the suit property (allegedly) 4.25 Acres in resurvey No.186/3 forms part from M/s.Piercelesilie Company (for short, "the Company") as per the original of Ext.B5, assignment deed, the company having acquired right over the said estate as per patta No.69. While so, the said Abdurahimankutty released his right over the entire property to the appellant as per Ext.A3, release deed. It is the further case of appellant that as requested by the respondents, the PWD was allowed to occupy the buildings in the suit property which were constructed by the company in the suit property. Appellant prayed for a decree for prohibitory injunction against respondents, their officials and others trespassing into the suit property, committing waste thereon or interfering with R.S.A.No.158 of 2008 -: 2 :- appellant's possession and enjoyment of the suit property or dispossessing the appellant from the said property.
3. Respondents denied title and possession claimed by the appellant over the suit property and contended that the suit property is unassessed land (UA land) forming part of government puramboke and comprised in survey 186/3. They denied that the buildings in the suit property were put up by the company. Instead, respondents claimed that PWD constructed the buildings in the suit property for its purposes.
4. Trial court held that appellant was not able to prove any right or interest in the suit property and that even if appellant is in possession she is only a trespasser and hence the prayer for injunction cannot be granted. First appellate court agreed with that view and dismissed the appeal. Hence the second appeal urging the following substantial questions of law.
1. The suit being one for injunction the non consideration of possession of the appellant has not vitiated the decision of the courts below?
2. Has the courts below applied the presumption of ownership in view of the established possession of the appellant and her predecessor-in-interest?
3. The non consideration of the material evidence including the commissioner's plan and report has not vitiated the decision of the courts below? R.S.A.No.158 of 2008 -: 3 :-
4. In the light of the available evidence can it not be stated that the appellant is in settled possession and if that be, so in she not entitled to get the relief of injunction?
5. It is contended by the learned counsel for appellant that notwithstanding that the suit is for a decree for prohibitory injunction and the issue which the courts below were required to decide is whether appellant is in possession of the suit property, neither of the courts below ventured to decide that question and instead went into the title claimed by the appellant. It is contended that judgment of the courts below suffers from serious infirmity in that way and hence the suit is to be remitted to the trial court for fresh decision in the matter of possession. The further contention learned counsel has advanced is that even the finding entered by the courts below on title is not correct, the documents produced would show that property comprised in survey 186/3 was never treated as puramboke land even on the showing of the respondents. My attention is also drawn to the documents produced along with I.A.No.887 of 2012 under Order 41 Rule 27 of the Code of Civil Procedure (for short, "the Code").
6. Learned Government Pleader on the other hand would contend that the trial and first appellate courts held that R.S.A.No.158 of 2008 -: 4 :- appellant has not established any right over the property and that includes the claim of appellant as to possession as well though it is not specifically so mentioned. It is also contended that having regard to the facts and circumstances, it is clear that respondents are in possession of the suit property and hence it is not necessary to disturb the finding of the courts below.
7. I have gone through copy of the plaint and find that relief prayed for is one for prohibitory injunction against trespass claiming that appellant is in possession of the suit property though according to the appellant, PWD functionaries were permitted to occupy the buildings constructed in the suit property by the predecessor-in-interest of appellant. It is also seen that the court fee paid on the plaint is under Sec.27(c) of the Kerala Court Fees and Suit Valuation Act (for short, "the Act") assessing the value of subject matter at `.2,000/-.
8. Issue No.1 framed by the trial court is whether appellant has got title and possession over the suit property. In such a situation, if appellant wanted to have an enquiry regarding title which respondents denied, necessarily court fee ought to have been paid under Sec.27(a) of the Act. That was not done. In such a situation since the suit is merely for injunction based on R.S.A.No.158 of 2008 -: 5 :- possession, courts below need not have ventured into an enquiry on title claimed by the appellant and disputed by the respondents. What was required to be decided was only possession claimed by the appellant.
9. Learned counsel has invited my attention to Exts.B5 and A3, copy of assignment deed executed by the company in favour of appellant and Abdurahimankutty and the release deed executed by the latter in favour of the appellant. It is true that in Ext.A3, there is reference to the 4.25Acres comprised in resurvey 186/3 while Ext.B5 does not refer to that. My attention is also drawn to Ext.A2, settlement register to show that 4.25Acres in survey 186/3 is covered by patta No.69 and was included in the name of the company.
10. On the other hand, there is Ext.B3, Ajmarash register for 1977-1978 and subsequent periods. In the said document, 4.25Acres comprised in resurvey 186/3 is stated as occupied by TB Lakkidi (Tourist Bunglow, Lakkidi). Same is the position during 1989-1997 also as seen from Ext.B3. The further fact noticed from Ext.B3 is that on 22.04.1980 survey 186/3 was changed as puramboke as per proceedings No.B6.29827/81 dated 04.01.1988 of the District Collector.
R.S.A.No.158 of 2008 -: 6 :-
11. A copy of the said proceeding is produced by the appellant along with I.A.No.887 of 2012. In the said proceeding dated 04.01.1988 reference is made to the property comprised in R.S.No.186/2 (and not to R.S.No.186/3). But, it is noticed from the said document that patta number referred is 163 (and not 69 which is the patta referred in Ext.B5 and Ext.A3). Yet another document produced along with I.A.No.887 of 2012 is copy of G.O.MS.No.935/78/RD dated 08.06.1978 according sanction for transfer of land comprised in Survey No.186/2.
12. The question arises whether notwithstanding that property comprised in resurvey 186/3 is not specifically mentioned either by extent or resurvey number in Ext.B5, what is conveyed to the appellant and Abdurahimankutty as recited in Ext.B5 is Ad Corpus and not Ad quantitative ie, it is not merely the 171.32Acres described in the survey numbers referred in Ext.B5 but the entire property lying within the boundaries mentioned therein (as appellant would contend). Learned counsel has invited my attention to the evidence of DWs.1 and 2 examined on the side of appellant. DW1 stated that he does not know whether the company had granted sanction to the PWD authorities to occupy the buildings in the property. But I must R.S.A.No.158 of 2008 -: 7 :- remember that at the time permission was (allegedly) granted, DW1 was not a functionary at the place. My attention is also drawn to the evidence of DW2.
13. Having regard to the various documents that are present before me, I am inclined to think that the dispute on title is to be resolved in a comprehensive suit on title and not in a suit for injunction paying court fee under Sec.27(c) of the Act. As the Supreme Court has pointed out in Anathula Sudhakar Vs. P.Buchi Reddy ((2008) 4 SCC 594) if the matter involves complicated questions of fact and law relating to title, Court has to relegate the parties to the remedy by way of comprehensive suit for declaration of title instead of deciding the issue in a suit for mere injunction. On the facts and materials on record I consider it appropriate to relegate the appellant to a comprehensive suit on title if she wishes to have an adjudication of the title claimed by her over the suit property. In the light of what I have stated above, it was not necessary for the courts below to enquire into or enter a finding regarding title claimed by the appellant over the suit property. Hence, all the findings entered by the courts below as to the title claimed by appellant over the suit property will stand vacated leaving it open to the R.S.A.No.158 of 2008 -: 8 :- appellant, if so advised to file comprehensive suit on title and get the title claimed by her adjudicated.
14. Back to the question whether claim of the appellant as regards possession of the suit property is established and whether, for the mere reason that courts below did not explicitly referred to that claim, the suit must go back to the trial or first appellate court for fresh decision. I must notice that both the Courts found that appellant failed to establish any right over the suit property. From that finding I must understand that the "right" referred to by the courts below includes possession claimed by the appellant. This, I say because courts below also went to the extent of stating that even if appellant is in possession, she is in the position of a trespasser. Therefore it is clear that courts below were not inclined to accept the claim of appellant as to even possession of the suit property.
15. I must also bear in mind contentions raised by the parties and the factual situation emerging in the case. Though it is the case of appellant that buildings were constructed by the Company and it allowed the PWD officials to occupy the same, what is available is only an oral evidence of the appellant in that regard. On the other hand, documents before me show that TB R.S.A.No.158 of 2008 -: 9 :- Lakkidi is functioning in the property comprised in survey 186/3 as well. It is the further contention of respondents that the property comprised in resurvey 186/3 is unassessed puramboke land. In such a situation, it is difficult to accept the claim of appellant that respondents are in permissive occupation or possession of the suit property. It is also difficult to think that the Company without any document permitted a government department to occupy its buildings and the latter also did so without any document. In that factual situation I find it difficult to accept the claim of appellant as to the possession of the suit property.
16. I stated that though not in so many words, courts below have rejected the claim of appellant as to possession of the suit property. In that circumstance, a remand of the case is not called for.
17. But, that cannot affect the right of appellant to sue for recovery of possession on the strength of title she claims if she is otherwise entitled to. I stated first above that the trial and first appellate courts were not called upon to enter a finding regarding the title claimed by the appellant and that the question of title claimed by the appellant is left open. I make it clear that R.S.A.No.158 of 2008 -: 10 :- if so advised it will be open to the appellant to go for a comprehensive suit on title and seek appropriate reliefs in the matter, if she is otherwise entitled to that course.
18. The substantial questions of law framed are answered accordingly.
19. Documents produced by the appellant along with I.A.No.887 of 2012 shall be returned to the appellant on application. I.A.No.887 of 2012 will stand dismissed.
The second appeal fails. It is dismissed. No cost.
(THOMAS P. JOSEPH, JUDGE) Sbna/-