Kerala High Court
Abdul Khader Master vs Beepathumma on 16 February, 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
THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933
RSA.No. 638 of 2011 (A)
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AS.209/2007 of I ADDL. DISTRICT COURT, PALAKKAD
OS.328/2003 of ADDL. MUNSIFF COURT, PALAKKAD
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APPELLANT(S)/PLAINTIFFS:
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1. ABDUL KHADER MASTER,
S/O KUNJAHAMMAD HAJI, KAKKOTTU PEEDIKA KALAM,
VALLIKODE AMSOM & DESOM, VALLIKODE P.O.,
PALAKKAD TALUK, PALAKKAD DISTRICT.
2. HAJIRA UMMA, D/O KUNJAHAMMAD HAJI,
KAKKOTTU PEEDIKA KALAM, VALLIKODE AMSOM & DESOM
PALAKKAD TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT(S)/DEFENDANTS:
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1. BEEPATHUMMA, W/O MOIDEENKUTTY,
KORUVANKODU, VALLIKODE AMSOM, VALLIKODE POST
PALAKKAD TALUK & DISTRICT - 678 594
2. ABDUL KHADAR, S/O BEEPATHUMMA,
KORUVANKODU, VALLIKODE AMSOM, VALLIKODE POST
PALAKKAD TALUK & DISTRICT - 678 594
3. NARAYANASWAMY, S/O PONNAN,
KORUVANKODU, VALLIKODE AMSOM, VALLIKODE POST
PALAKKAD TALUK & DISTRICT - 678 594
R1 & R2 BY ADV. SRI.R.MANIKANTAN
R3 BY ADVS. SRI.BINOY VASUDEVAN
SMT.P.G.BABITHA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 16-02-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DCS
THOMAS P. JOSEPH, J.
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R.S.A. No.638 of 2011
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Dated this the 16th day of February, 2012.
JUDGMENT
Appellants are the plaintiffs in O.S.No.328 of 2003 of the court of learned Munsiff, Palakkad and sought declaration of their title and consequential injunction with respect to the suit property, 22.5 cents in R.S.No.33/A1. They claimed that their father took the suit property on lease from Pathiyakkara Mana, the Jenmi on 20.03.1944 and on the death of the father, the said property devolved on them by succession. They alleged that respondents/defendants made attempt to trespass into the suit property and hence the suit.
2. Respondents denied title and possession claimed by appellants and contended that Pokker Rawther, father of the 1st respondent took the property on lease from Vasudevan Namboodiripad and on the death of the father, 1st respondent and others got the property. 1st respondent purchased landlord's right from the Land Tribunal, Palakkad in the year, 1976. 1st respondent executed a settlement deed in the year, 1996 in favour of 2nd respondent and put him in possession of the property. From the said property, 2nd respondent sold 10 cents towards its west to the 3rd respondent.
3. Trial court accepted the plea of respondents, found that appellants were not able to prove their title and possession of the suit property and dismissed the suit. First appellate court has confirmed that judgment and decree and hence this Second Appeal urging substantial questions of law raised in the RSA No.638/2011 2 Memorandum of Appeal.
4. Learned counsel for appellants contended that relevant evidence let in by the appellants have not been properly considered by the trial and first appellate courts. It is also contended that legal implications arising from the documents have not been taken into account by the courts below. A further contention learned counsel raised is that there is no sufficient plea or evidence regarding the claim of tenancy and possession raised by the respondents. Learned counsel also harped on what learned counsel described as the contradictions in the pleadings and evidence of the respondents.
5. Since the suit is for declaration of title and consequential injunction, it is settled that appellants have to win or lose on the strength or weakness of their case and not on the weakness of the case of respondents. According to the appellants, their father took the property on lease from Pathiyakkara Mana on 20.03.1944. Though, going by Ext.A10, notice issued by the respondents it would appear that there was a registered document creating such lease, no such document was produced either in the trial court, first appellate court or even in this appeal. On the other hand, evidence let in on behalf of appellants appear to be on the premises that the lease on 20.03.1944 was oral. Appellants have produced Exts.A1 to A17 in proof of the title and possession they claimed in the suit property. Learned counsel has made particular reference to the documents referred to above. Ext.A1 is the copy of judgment dated 11.10.1955 in O.S.No.337 of 1953 of the court of learned District Munsiff, Palakkad. Ext.A5 RSA No.638/2011 3 is the copy of order in O.A.No.197 of 1974 of the Land Tribunal, Palakkad. Ext.A7 is the true extract of permit register according to the learned counsel, issued under provisions of the Malabar Irrigation Work (Construction and Levy of Cess) Act, 1947. Ext.A12 series, A13 series, A14 series and A15 series are produced to show payment of rent to the Jenmi during 1964 to 1969. Learned counsel, placing reliance on the decision in Karicherry Charadan Nair and another v. Edayillam Kunhambu Nair (AIR 1982 Kerala 232) and in particular, observations in paragraphs 9, 10, 11 and 16 would contend that Ext.A7 has to be given much value since it is a document prepared and issued under the provisions of the above said Act of 1947. Learned counsel also pointed out that in the written statement the contention raised was that it was the father of 1st respondent who took lease of the said property from Vasudevan Namboodiripad of Pathiyakkara Mana but in the evidence, witnesses on behalf of the appellants changed that version. It is contended that no document is produced to show either that there was any such lease or that Vasudevan Namboodiripad was the Karanavan of the Pathiyakkara Mana so that he could create a valid lease in favour of father or other predecessor-in-interest of the 1st respondent. A further contention raised is that though respondents have produced Ext.B1, purchase certificate dated 07.01.1977 issued by the Land Tribunal and Ext.B2, copy of the order on that application, it is not shown that Vasudevan Namboodiripad who is said to have represented Pathiyakkara Mana in the said proceeding was the RSA No.638/2011 4 Karanavan entitled to represent the said Mana. It is pointed out that appellants are not parties to Exts.B1 and B2 and hence that order cannot bind the appellants.
6. Respondents have produced Exts.B5 to B14 to show payment of revenue for the suit property from 1964 to 2002. I do not forget that certain receipts are produced by the appellants also to show that they have paid rent to Pathiyakkara Mana. But, those documents do not show that it is with respect to the property comprised in R.S.No.33/A1.
7. So far as Ext.A7 is concerned it is pointed out that it refers to a total extent of 1.76 Acres in R.S.No.33/A1. That document is dated 24.06.1969. Concededly, it is not with notice to any of the respondents or predecessor-in- interest of 1st respondent that Ext.A7 was prepared.
8. Exts.B1 and B2 show that purchase certificate was applied for and issued in favour of the 1st respondent. In the said proceeding, Vasudevan Namboodiripad is shown as landlord representing Pathiyakkara Mana. Much was argued by learned counsel for appellants that it is not shown that Vasudevan Namboodiripad being the Karanavan was authorised and competent to represent Pathiyakkara Mana. The answer for that comes from Ext.A5, document relied on by the appellants' counsel. Ext.A5 is the copy of order RSA No.638/2011 5 dated 05.10.1977 in O.A.No.197 of 1974 of the Land Tribunal, Palakkad. That admittedly concerns property on the east of the suit property. Applicant therein claimed tenancy over the said property under the mother of appellants (after their father expired). She was impleaded as 2nd respondent in the said proceeding while Pathiyakkara Mana represented by Vasudevan Namboodiripad in the said proceeding. It is seen from Ext.A5 that 2nd respondent therein, mother of the appellants filed written statement on 25.07.1975 and in that written statement, she inter alia contended that compensation is to be paid to the 1st respondent, the landlord (Pathiyakkara Mana, represented by Vasudevan Namboodiripad). Therefore, there could be no challenge to the authority of Vasudevan Namboodiripad to represent Pathiyakkara Mana at least during 1974-77 during which time the said proceeding was initiated and Land Tribunal disposed of the said proceeding. Ext.B1 is the purchase certificate issued in the year, 1977 and Ext.B2 is the order passed on O.A.No.3520 of 1976 which led to issue of Ext.B1, purchase certificate. Thus, it is clear from Ext.A5 proceedings that during 1974-77 even as admitted by the mother of appellants (after death of their father) it was Vasudevan Namboodiripad who was competent to represent the Mana. Hence, it is idle for appellants to contend in this proceeding that in Ext.B1, the Jenmi (Mana) was not represented by a person authorised and competent to do so. RSA No.638/2011 6
9. Yet another argument advanced by the learned counsel is that in Exts.B1 and B2, appellants are not given notice. If appellants have no claim in the suit property it is not necessary that they should have been given notice of the proceeding and particularly when the Jenmi was represented by a person competent to do so as I found from Ext.A5, proceeding relied on by the appellants.
10. If that be so and particularly as I stated that rent receipts produced by the appellants do not show that it concerned the suit property, merely on the strength of Ext.A7, the presumption and conclusiveness under Exts.B1 and B2 cannot be displaced. When the Land Tribunal issued purchase certificate in favour of the 1st respondent, it carries a presumption that she was in possession of the suit property as a cultivating tenant. That presumption cannot be displaced by the documents produced by the appellants.
11. Ext.A1, judgment was also relied on. That judgment was pronounced on 11.10.1955 and admittedly, without respondents or their predecessors-in-interest on the array of parties. Therefore, Ext.A1 cannot have binding effect on the respondents.
RSA No.638/2011 7
12. A further fact which I must notice is that though PW1 who gave evidence on behalf of the appellants stated that property on the east of the suit property also belongs to the appellants, evidence revealed that there was no entry from the eastern property to the suit property. That also indicated that appellants were not in possession of the suit property.
13. Courts below have referred to the evidence on record and come to the conclusion that title and possession claimed by appellants cannot be upheld and accordingly, non-suited the appellants. That finding is based on an appreciation of the evidence on record. That in my view does not involve any substantial question of law requiring admission of this appeal.
Second Appeal is dismissed.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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