Kerala High Court
John vs Bhagyodhayam Company Ltd on 20 September, 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 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934
RSA.No. 1135 of 2012 ()
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AS.137/2008 of II ADDL.DISTRICT COURT,ERNAKULAM
OS.595/1999 of PRINCIPAL MUSIFF COURT,ERNAKULAM
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APPELLANT(S)/APPELLANT/DEFENDANT:
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JOHN, AGED 60 YEARS,
S/O.GEORGE, CHINNIKKARA HOUSE, VADUTHALA DESOM,
CHERANELLOOR VILLAGE, KOCHI-23.
BY ADV. SRI.ABRAHAM JOHN
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:
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1. BHAGYODHAYAM COMPANY LTD.,
CHATHYATH, REPRESENTED BY P.A.PERIGREEN,
AGED 65 YEARS, S/O.ALEXANDER, PAYYAPILLY HOUSE,
VADUTHALA, KOCHI-23 (MANAGING DIRECTOR).
2. ANTONY JOSE KEERAMPILLY, AGED 68 YEARS,
S/O.JOSEPH, KEERAMPILLY HOUSE, VADUTHALA,KOCHI-23.
3. GASPER CORREYA, AGED 66 YEARS,
S/O.FRANCIS CORREYA, AMBATT HOUSE, PACHALAM.P.O.,KOCHI.
4. JOHN BOSCO D'SILVA, AGED 56 YEARS,
S/O.LAWRENCE D'SILVA, ALUNGAPPADATHU, PACHALAM, KOCHI.
5. JOSEPH ANTONY, AGED 46 YEARS,
S/O.JOSEPH, VELLIAPARAMBIL HOUSE, PACHALAM.P.O., KOCHI.
R1 BY ADV. SRI.K.A.SHAJI MATHEW(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Kss
THOMAS P. JOSEPH, J.
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R.S.A. No. 1135 of 2012
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Dated this the 20th day of September, 2012
JUDGMENT
Defendant in O.S. No. 595 of 1999 of the Principal Munsiff's Court, Ernakulam is aggrieved by the judgment and decree of that court, confirmed by the IInd Additional District Court, Ernakulam in A.S. No.137 of 2008.
2. Respondent/plaintiff which is a public limited company claimed right over 52 cents in survey No.964/9 having purchased the same in court auction in O.S. No. 73 of 113. Ext.A2 is the sale certificate issued in favour of the respondent. According to the respondent, the above said 52 cents is item No.5 of Ext.A2. It also claimed that the said 52 cents was delivered over to it as revealed by Ext.A3, delivery report. Appellant's father, George was a kudikidappukaran in the said property. He filed O.S. No.2724 of 1995 in the Land Tribunal, Ernakulam (for short 'the tribunal') for purchase of kudikidppu with respect to 3 cents and the hut situated thereon. The tribunal allowed kudikidappu over the said 3 cents to be purchased. On the death of the said George, the said 3 cents devolved on the appellant. Thus, appellant is the owner in R.S.A. No. 1135 of 2012 -: 2 :- possession of the said 3 cents which his father got by way of kudikidappu. Alleging that the appellant trespassed into the 15 cents surrounding the said 3 cents, respondent sued the appellant for fixation of boundary, recovery of possession of the encroached area (plaint D schedule), mandatory injunction to remove the structures put-up in the encroached portion and for prohibitory injunction.
3. The appellant denied that his father was a kudikidappukaran in the suit property. He claimed that his father had got possession of 15 cents as per an oral lease from the landlord. He is entitled to fixity of tenure over the said 15 cents. He denied that his father had applied for and obtained purchase certificate as regards 3 cents by way of kudikidappu. He also denied the allegation of trespass. He did not omit to dispute the title and possession of the respondent over the plaint A schedule. The further contention he raised is that the description of A schedule is not correct and that it does not take in the 49 cents.
R.S.A. No. 1135 of 2012 -: 3 :-
4. The trial court though found some discrepancy between the survey plan and Ext.C2(a), plan prepared by the Advocate Commissioner with the assistance of a retired Taluk Surveyor, held that the plaint A schedule belongs to the respondent, right of the appellant is confined to the 3 cents and the house situated therein which his father had obtained by way of kudikidappu and that the claim of the appellant that he is a tenant of 15 cents is not proved. Accordingly a decree was granted in favour of the respondent which the first appellate court has confirmed. Hence the second appeal.
5. The learned counsel for the appellants has contended that there is no proper identification of the plaint A schedule either by extent or survey number, both of which differ. The courts below were not right in preferring Ext.C2(a), plan over the survey plan (Ext.A6). It is pointed out that claim of the respondent over the property comprised in suvery No. 962/2, Ext.A13, receipt for payment of revenue and Ext.A6, plan would show that payment is for the property comprised in survey No. R.S.A. No. 1135 of 2012 -: 4 :- 962/2 which has nothing to do with the plaint A schedule. The learned counsel argues that to get recovery of possession of the plaint D schedule, it is not sufficient that the respondent shows that the appellant has no title, the respondent has to show that he has title over the plaint D schedule. That has not been proved in this case, it is argued. The further argument is that at any rate, the 15 cents (plaint D schedule) over which the appellant claims right by way of tenancy is not shown to be part of the plaint A schedule over which the respondent is claiming right as per Ext. A2, sale certificate.
6. I heard learned counsel who took notice for the respondent as well. The learned counsel contends that though survey number of the property is mistakenly mentioned in Ext.A6, it is clear from the rest of the documents produced by the respondent as well as Ext.C2 (a) that mention of the sub division number in Ext.A6 is only a mistake. The learned counsel contends that in view of Exts. A10 and A.13 and in view of the location of the 3 cents, the appellant cannot contend that R.S.A. No. 1135 of 2012 -: 5 :- the respondent has no title over the plaint D schedule or even plaint A schedule.
7. Ext.A2, sale certificate shows that the respondent acquired title over 52 cents in survey No.964/9 as per court auction in O.S. No.73 of 1113. That the said property was delivered to the purchaser is revealed by Ext.A3, report of the Ameen which I find no reason to reject.
8. It is true that in Ext.A6, survey plan, the survey number of the property is mentioned. Referring to Exts.A7 and A8 which are also survey plans where the survey number is mentioned as 964/2, and to the other documentary evidence on records, the trial and first appellate courts found that mention of the sub division in Ext.A6 is only a mistake. I must also notice that in Ext.C2(a), the plan prepared by the retired Taluk surveyor, it is specifically stated that though the survey number of the 3 cents assigned to the father of the appellant by way of kudikidappu is mentioned as 964/2, it is actually 964/9. Though some objections were preferred to Exts.C2 and C2(a), plans, the R.S.A. No. 1135 of 2012 -: 6 :- appellant did not take any steps to examine the Advocate Commissioner or the Surveyor to substantiate that objection. The mere filing of some objection to Exts.C2 and C2(a) will not take the appellant anywhere.
9. I am given a copy of Exts.C2 and C2(a) plans. I find that the plaint A schedule is identified by the Surveyor as comprised in survey No.964/9. Of the 52 cents covered by Ext.A2, the total extent of plaint A schedule is 49 cents, i.e. less the 3 cents given to the father of the appellant by way of kudikidappu.
10. Though even the fact of the father acquiring the 3 cents by way of kudikidappu is denied by the appellant probably because he thought that he stood to gain since he is claiming right over 15 cents, Exts.A4, A5 and A9 would belie that contention of the appellant. Ext.A4 is the copy of application preferred by the father of the appellant for assignment of landlord's rights with respect to the 3 cents and the hut situated therein. Ext.A9 is the sketch of site of kudikidappu prepared by the tribunal. Ext.A5 is the copy of assignment order issued by R.S.A. No. 1135 of 2012 -: 7 :- the tribunal in favour of the father of the appellant.
11. True that the appellant has denied that his father made such an application. It is easy to deny. Ext.A4 is the certified copy of the application preferred before the tribunal. Section 79 of the Evidence Act carries a presumption as to genuineness so far as the certified copies are concerned. There is no reason why the benefit of that presumption should not go to Ext.A4. Nor am I inclined to accept the contention that in the name of the father of the appellant somebody obtained Ext.A5, order purchasing the right of the landlord over 3 cents in survey No. 964/9.
12. It is seen from Ext. C2(a) that the 3 cents assigned to the father of the appellant by way of kudikidappu is surrounded by the rest of property comprised in survey No.964/9 (which I stated is acquired by the respondent as per Ext.A2, sale certificate). The 15 cents over which the appellant is now claiming right as a tenant is situated around the 3 cents. In other words, the said 15 cents is within the four boundaries of property comprised in survey No.964/9 belonging to the R.S.A. No. 1135 of 2012 -: 8 :- appellant as per Ext.A2. Hence, there is no merit in the contention that the 15 cents is not properly identified or that it is not shown to be part of the plaint A schedule.
13. Though the appellant contended that his father obtained 15 cents under an oral lease, there is no reliable evidence in support of that except, the interested evidence of DW.1. That evidence cannot stand in the light of the documentary evidence which I have referred to and discussed above.
14. The trial and first appellate courts found on the strength of evidence on the side of the respondent and lack of evidence on the side of the appellant as regards the alleged tenancy in respect of the 15 cents that the the plaint D schedule forms part of property belonging to the respondent as per Ext.A2. It follows that the title of the respondent over the plaint D schedule is also proved.
15. A further fact I must notice is that by Exts. A10 and A12 (again disputed by the appellant), the appellant requested the R.S.A. No. 1135 of 2012 -: 9 :- respondent to assign the 15 cents situated around the 3 cents which the appellant acquired from his father who got if by way of kudikidappu. That also would show that the title of the 15 cents vest with the respondent.
16. Having heard the learned counsel on both sides and gone through the judgments under challenge and copy of the relevant documents given to me for perusal, I do not find any substantial question of law involved in this appeal requiring a decision by this court.
The second appeal is dismissed.
All pending interlocutory applications will stand dismissed.
Sd/-
smv THOMAS P.JOSEPH,
JUDGE
//True copy//
P.A. To Judge