Kerala High Court
Shajan George vs State Of Kerala on 28 March, 1989
ead with Rule 26 of the Kerala Land Reforms (tenancy) Rules?
(ii) Is not the purchase certificate evidenced by Ext.A2
conclusive proof regarding the title of plaintiffs especially when as per Ext.A5 the
purchase certificate issued in favour of the defendant stood cancelled?
3. This litigation between the original plaintiff (husband of
additional plaintiff No.2 and father of additional plaintiff No.3) and the defendant
who are brothers started in the year 1978 by the original plaintiff instituting
O.S.No. 118 of 1978 seeking a decree for prohibitory injunction in respect of the
suit property, 3.25 acres claiming that he is in possession of the said property
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having obtained it under an oral lease 'at or about 1956'. The defendant (he
died pending this appeal - his legal representatives are impleaded) who
admittedly owned property adjoining the suit property claimed that the suit
property belonged to him and is in his possession. Learned Munsiff accepted
the case of the original plaintiff and granted a decree. Defendant took up the
matter in appeal as A.S.No.3 of 1981. First appellate court found that the
defendant was in possession of the suit property and dismissed the suit
making certain observations concerning the right, title and interest claimed by
the original plaintiff over the suit property based on Exts.A1 to A3 ( in the
present suit). Original plaintiff challenged the judgment and decree of the first
appellate court in this Court in S.A.No.812 of 1984. This Court confirmed the
judgment and decree of the first appellate court as per Ext.A6, judgment dated
28.3.1989. However, the right of the original plaintiff if any to institute suit for
recovery of possession was safeguarded. Thereafter the original plaintiff filed
O.S.No.292 of 1989 seeking recovery of possession of the suit property on the
strength of his title. He produced Exts.A1 to A6. Ext.A1 is the C.C. of the order
dated 2.3.1976 along with the C.C. of the application thereunder filed by the
original plaintiff under Section 29 of the Act . Record of right was settled in
the name of the original plaintiff allegedly in respect of the suit property.
Thereafter in S.M.No.164 of 1978 the Land Tribunal as per Ext.A2, order dated
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17.12.1978 allowed the original plaintiff to purchase the landlord's right
allegedly in respect of the suit property. Ext.A3 is the purchase certificate dated
30.3.1979. To evidence payment of rent to the jenmi, original plaintiff
produced Exts.A4, receipt dated 21.3.1977. In the meantime, defendant who
claimed to be a cultivating tenant of the suit property obtained purchase
certificate dated 3.10.1977 (Ext.B5) from the Land Tribunal. The order granting
purchase certificate was challenged by the original plaintiff before the
Appellate Authority(Land Reforms). The Appellate Authority vide Ext.A5,
judgment dated 8.7.1982 set aside the order granting purchase certificate to the
defendant. Defendant maintained that he is in possession as a cultivating tenant
in respect of 3.25 acres in R.S.No.103 under a registered marupatt dated
20.4.1957 and later got the purchase certificate. He also claimed that at any
rate, he has perfected title by adverse possession and the law of limitation. He
proved Exts.B1 to B9. Exts.C1 to C4 are the reports and plans submitted by
the advocate commissioner. Trial court found that it is not shown that Exts.A1
to A3 are in respect of the suit property. The suit ended in dismissal. First
appellate court concurred with that.
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4. It is contended by the learned counsel for additional
plaintiffs/appellants that the courts below went wrong in not giving due weight to
Exts.A1 to A5. Ext.A1 shows that the proceedings were initiated under Section
29 of the Act and going by the application, it was in respect of 3.25 acres in
R.S.No.103/ Part. Under Sub-section (3) of Section 29 of the Act, the record of
right "shall contain the description and extent of the land". But Ext.A1 does not
contain any such description except the extent of the land. True, in Exts.A2 and
A3, the boundaries of property mentioned therein are given. It is pertinent to
note that Exts.A2 and A3 are immediately before or after the litigation started
between the original plaintiff and defendant in the year 1978. In K.Iswara
Warriyar v. State of Kerala and others (1966 KLT 1051) relied on by the courts
below it has been held that the record of rights when prepared will be an item of
evidence in respect of the several matters required by the Act and the Rules to
be specified therein. 'Record of rights' as understood under Section 29 of the
Act must be one which complied with the mandatory requirements of Sub-section
(3) of Section 29 of the Act including the description and extent of the land
involved. It is not the case of the additional plaintiffs that before issuing
purchase certificate in favour of the original plaintiff, any notice was given to the
defendant. Therefore, Exts.A1 and A3 cannot bind the defendant.
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5. It is true that as seen from Ext.A5, copy of the judgment of the
Appellate Authority (Land Reforms) in A.A.No.1831 of 1982 that the purchase
certificate (Ext.B5) issued to the defendant was set aside at the instance of the
original plaintiff who claimed to be a cultivating tenant of the disputed property.
But it is seen from Ext.A5 that the main reason for the Appellate Authority (Land
Reforms) setting aside the order in favour of the defendant was because in
O.S.No.118 of 1978 filed the original plaintiff against the defendant the learned
Munsiff had granted a decree for prohibitory injunction as if the original plaintiff
was in the possession of the property. Concededly, that judgment and decree
were set aside by the first appellate court which was confirmed by this Court in
S.A.No.812 of 1984 as seen from Ext.A6. Therefore, on the ground that the
purchase certificate in favour of the defendant was cancelled, additional
plaintiffs cannot contend that he was not the cultivating tenant of the suit
property.
6. Courts below found against proper identification of the property.
Exts.C1 to C4 show that the boundaries did not tally with the boundaries
mentioned in Ext.A2. Only the southern boundary of the disputed property
tallied, the property on the south being the property belonging to the original
plaintiff. Admittedly, the property adjoining the suit property on one side is the
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property which belonged to and is in the possession of the defendant. It is also
not disputed by the additional plaintiffs that based on a marupatt executed by
the original plaintiff, one Balan had filed a suit against the defendant as
O.S.No.96 of 1974 and that suit ended in a dismissal as seen from Ext.B9.
7. So far as the alleged oral lease set up by the original plaintiff is
concerned, what is stated in the plaint is that the oral lease was in or about
1956 and the only document produced by the original plaintiff to evidence
payment of rent is Ext.A4 dated 21.3.1977 and as per which rent for the period
from 1956-57 to 1977 was paid in lump. Ext.A5 comes just before the institution
of O.S.No.118 of 1978 and much after the alleged marupatt executed by the
original plaintiff in favour of Balan based on which Balan filed O.S.No.96 of
1974. Ext.A4 indicates that at no time before Ext.A4, original plaintiff had paid
rent to the jenmi. It is difficult to believe that the original plaintiff who had not
paid rent to the jenmi right from 1956 onwards, paid the rent in lump as per
Ext.A4 on 21.3.1977 even after the entire rights of the landlord vested in the
Government on 1.1.1970. Learned counsel for the additional plaintiffs
submitted that the receipts after 1977 were produced before the first appellate
court as additional evidence along with I.A.No.162 of 1995 but the same were
not accepted. What is stated in the affidavit in support of the application as
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regards the delay in producing the receipts is that those receipts could not be
produced earlier since they were mixed up with old records and could be traced
out only on the previous day of the filing of the application. But what is stated by
PW1 in the evidence is that the receipts had been handed over to his advocate.
In the circumstances first appellate court was justified in not receiving additional
evidence.
8. At this stage, learned counsel for the additional plaintiffs made a
fervent plea for remand of the case. I gave an anxious consideration of the
request but, I am not inclined to think on the facts of this case that a remand is
warranted at this distant point of time. The litigation in respect of the suit
property started in the year 1974 by Balan who claimed under the original
plaintiff. He lost it. Original plaintiff initiated proceedings of his own in the year
1978 claiming that he was in possession of the suit property and ultimately
failed. In fact, a reading of Ext.A6, the copy of the judgment in A.S.No.812 of
1984 would show that even in that suit, identity of the property was hotly
contested by both sides and the original plaintiff was not able to establish the
same. This Court in Ext.A6, judgment observed in paragraph 4 thus:
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"...... Exts.A4 and A5 have been
held, rightly, not related to the plaint property, on
the evidence on record.".
(Exts.A4 and A5 referred above are Exts.A2 and A3 in the present proceeding).
I do not forget that this Court in paragraph 5 of Ext.A6 observed that:
" ............. It is unnecessary,
therefore, to consider whether the defendant
can rely on his purchase certificate Ext.B3 and
whether Ext.B3 can have any validity now after
it has been set aside by the appellate
authority".
(for the reason of the finding of the learned Munsiff in O.S.No.118 of 1978 that
the original plaintiff is in possession and, which was reversed by the first
appellate court and confirmed by this Court as per Ext.A6). It was also
observed by this Court in Ext.A6 that:
"...... As this is a suit merely for
injunction and it is unnecessary to decide the
title of the contesting parties."
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9. I quoted from Ext.A6 only to show the dispute regarding identity of
the property is not something that cropped up only in the present proceeding.
Instead, that issue was hotly contested in the earlier litigation also and no
effective steps were taken by the original plaintiff in the said proceedings and, in
the case on hand as well to prove that Exts.A1 to A3 actually related to the suit
property. In the circumstances, I do not consider it is necessary or justifiable to
send back the case to the trial court for any purpose whatsoever.
10. No other point is raised for consideration.
Resultantly, this Second Appeal fails. It is dismissed. No costs.
C.M.P.No.1945 of 1996 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.893 of 1996
JUDGMENT
13th March, 2009.
? IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 7632 of 2009(Q)
1. SHAJAN GEORGE, S/O.GEORGE, ... Petitioner Vs
1. STATE OF KERALA, REPRESENTED ... Respondent
2. THE DIRECTOR GENERAL OF POLICE,
3. THE S.I. OF POLICE, For Petitioner :SRI.R.PADMARAJ For Respondent : No Appearance The Hon'ble MR. Justice M.N.KRISHNAN Dated :17/03/2009 O R D E R M.N. KRISHNAN, J.
= = = = = = = = = = = = = = W.P.C. NO. 7632 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of March, 2009.
J U D G M E N T This writ petition is filed with a prayer to give direction to the police officers to strictly follow the procedure provided under Motor Vehicles Act including the use of breath analyzer and issue a writ of certiorari and quash the proceedings which has resulted in Ext.P3 charge sheet. I had perused the materials produced and available before me. Ext.P1 is the First Information Statement. What is stated therein is there was a smell of alcohol and when breath analyzer test was done it produce a sound 'beep beep'. It is also averrd that the rider of the vehicle was driving the vehicle carelessly and negligently so as to endanger human life. A perusal of 185 of the M.V. Act would show that in order to attract that offence a person who drives the vehicle should have in his blood alcohol exceeding 30mg per 100 ml of blood detected in a test by a breath analyzer. The only document that is W.P.C 7632 OF 2009 -:2:- available before me is Ext.P2 which does not give any of these particulars except the statement that the person has consumed alcohol but not under the influence of alcohol. So unless and until mandate of S.185 is statutorily complied no action u/s 185 can lie and therefore in this case it cannot be proceeded under Section 185 of the M.V.Act. S.279 IPC is independent of S.185 of the M.V. Act and an action will lie and that the result depend upon the materials available in the case. Therefore I dispose of this writ petition whereby quashing the charge u/s 185 M.V.Act and retaining the charge u/s 279 of IPC. I also feel the prosecutors must give necessary instructions to the police authorities to properly conduct the breath analyzer test and record the statutory requirement in the file so as to enable a Court of law to understand whether it has been done properly or not.
The writ petition is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-