Kerala High Court
(*)1. Smt.Kunjannamma vs Kalabhavan Studios Ltd
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
RSA.No. 551 of 2010 ( )
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AS.384/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM
OS.802/1995 of PRINCIPAL SUB COURT,ERNAKULAM
APPELLANT(S)/RESPONDENTS 1, 3 & 4/DEFENDANTS 1, 3 & 4:
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(*)1. SMT.KUNJANNAMMA, W/O.LATE GEORGE @ BABY,
AGED 65 YEARS, PANAKALODIYIL, RESIDING AT
KAILASA MANDIRAM, THENGODE KARA, KAKKANADU
VILLAGE, KANAYANNUR TALUK. (DIED. LRS. IMPLEADED)
2. SANTHOSH GEORGE, S/O.LATE PANAKOLODIYIL
GEORGE @ BABY AGED 42 YEARS, RESIDING AT KAILASA MANDIRAM,
THENGODE KARA, KAKKANADU VILLAGE, KANAYANNUR TALUK.
3. SURESH GEORGE, S/O.LATE PANAKOLODIYIL
GEORGE @ BABY AGED 50 YEARS, RESIDING AT
KAILASA MANDIRAM, THENGODE KARA, KAKKANADU
VILLAGE, KANAYANNUR TALUK.
BY ADVS.SRI.PEEYUS A.KOTTAM
SRI.NAVEEN THOMAS
SRI.RENJITH THOMAS
RESPONDENT(S)/APPELLANT & 2ND RESPONDENT/PLAINTIFF & 2ND DEFENDANT:
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1. KALABHAVAN STUDIOS LTD, A COMPANY
INCORPORATED UNDER COMPANIES ACT, 1956 HAVING ITS
REGISTERED OFFICE AT COCHIN-682018,REPRESENTED BY
ITS MANAGING DIRECTOR, JAMES KULATHUNKAL
FR.ABEL NAGAR, COCHIN - 682030.
2. GEORGE MON, S/O.LATE PANAKOLODIYIL
GEORGE @ BABY AGED 42, KAILASA MANDIRAM, THENGODE
KARA, KAKKANADU VILLGE, KANAYANNUR TALUK.
LRS. OF DECEASED FIRST APPELLANT IMPLEADED:
ADDL.R3. LEELA ROY, AGED 61 YEARS, W/O.ROY, RESIDING AT
KANIYAMPARAMBIL HOUSE, TRIANGLE TOWERS,
NEAR COLLECTORATE, KAKKANADU, COCHIN-682030.
ADDL.R4. GEETHA THOMAS, AGED 57 YEARS, W/O.THOMAD,
RESIDING AT KOTTISSERIKUDIYIL HOUSE, CHELADE PO,
KOTHAMANGALAM, ERNAKULAM DISTRICT, PINCODE-
686691.
RSA NO.551/2010 2
ADDL.R5. REENA VARGHESE, AGED 55 YEARS, RESIDING AT
PALAKALAPURAYIL HOUSE, KUSUMAGIRI P.O.,
KAKKANAD, COCHIN - 682 030.
(*)ADDL.R3 TO R5 IMPLEADED AS LRS. OF DECEASED FIRST APPELLANT AS
PER ORDER DATED 7.6.2012 IN IA NO.809/2012.
ADV. SRI.JOSE JOSEPH ARAYAKUNNEL- FOR R1
ADV. SRI.VARGHESE PARAMBIL - FOR R1
ADV. SRI.SAJI.P.JOSEPH - FOR R2
ADV. SMT.MINI G. PALLATH - FOR R2
ADV. SRI.V.M.KURIAN- FOR ADDL. R3
ADV. SRI.MATHEW B. KURIAN- FOR ADDL.R3
ADV. SRI.K.T.THOMAS - FOR ADDL.R3
ADV. DR.GEORGE ABRAHAM - FOR ADDL.R4
ADV. SRI.LINDONS C.DAVIS - FOR ADDL.R4
ADV. SRI.I.DINESH MENON - FOR ADDL.R5
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A. No.551 of 2010
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Dated this the 10th day of July, 2012.
JUDGMENT
Defendants 1, 3 and 4 in O.S.No.802 of 1995 of the Principal Sub Court, Ernakulam challenge the decree granted by the learned VI Additional District Judge, Ernakulam in favour of the 1st respondent/plaintiff in A.S.No.384 of 2008. Parties are referred as plaintiff and defendants as in the trial court for convenience.
2. The 1st defendant is the wife and the 2nd defendant onwards are the children of the late George. He executed gift deed No.3316 of 1967 dated 29.12.1967 (a copy of which is marked as Ext.B10) in favour of the 1st defendant concerning 1.29 acres in old survey No.405/1. In the year, 1971 the said George executed assignment deed No.2077 of 1971 dated 02.08.1971 (a copy of which is marked as Ext.A1) in favour of the plaintiff concerning a total extent of six acres made up of five acres in old survey No.402/1, 50 cents in old survey No.403/1 and 50 cents in old survey No.405/1 described as item Nos.1 to 3, respectively in Ext.A1. Plaintiff alleged that right from the time of Ext.A1, the said property, described as plaint A schedule in the suit was in the possession and enjoyment of the plaintiff as its absolute owner, that the said property has well defined boundaries on all sides and while so, during the first week of August, 1995 defendants were seen to have trespassed into the south-eastern RSA No.551/2010 2 portion of the suit property (towards south-eastern portion of item No.1 of Ext.A1). Hence, plaintiff prayed for recovery of possession of the trespassed area, described in the plaint as B schedule on the strength of title and for prohibitory injunction against trespass into the entire plaint A schedule.
3. Defendants denied that the plaintiff has title or was in possession of plaint B schedule. Their contention is that plaint B schedule forms part of the 1.29 acres settled in favour of the 1st defendant as per Ext.B10 and since the time of Ext.B1, the 1st defendant is in possession and enjoyment of plaint B schedule. In the additional written statement defendants also raised a contention that the disputed property forms part of rest of the property comprised in old survey No,.402/1 belonging to the said George and situated on the east of item No1 of Ext.A1.
4. The trial court found from Exts.C2 to C4 that there is no proper identification of the suit property. Trial court also found that though plaintiff as per Ext.A1, claims title and possession of a total extent of six acres, in Ext.C3, the total extent of the property claimed by the plaintiff is 6.27 acres while in Ext.C4, the total extent is mentioned as 6.20.200 acres. Plaintiff could not account for the excess land found by the Advocate Commissioner. On the above evidence trial court dismissed the suit. Plaintiff took up the matter in appeal.
RSA No.551/2010 3
5. During the pendency of appeal, plaintiff filed application for amendment of the plaint schedule to correct total extent of the property as 6.20.600 acres. The first appellate court was of the view that for a decision of the appeal an amendment as prayed for in the said application was not necessary. The first appellate court held, having regard to the facts and circumstances of the case that plaint B schedule forms part of item No.1 of Ext.A1. The first appellate court also found that until trespassed upon by the defendants, plaintiff was in possession and enjoyment of plaint B schedule as well by virtue of Ext.A1. So far as the rest of property covered by Ext.A1 is concerned, the first appellate court came to the conclusion that the plaintiff is in possession. Accordingly, the plaintiff was allowed to recover possession of plaint B schedule on the strength of title. Plaintiff was also granted a decree for prohibitory injunction concerning the rest of the property covered by Ext.A1. That judgment and decree of the first appellate court are challenged in this Second Appeal on the following substantial questions of law:
i. Once a gift deed is executed and it is duly accepted by the donee, whether the donor has any more right over the said extent of property?
ii. When the plaintiff claimed relief with regard to six acres of property and even without any amendment, can the appellate court grant a judgment and decree in favour of the plaintiff for 6.27 acres of property? RSA No.551/2010 4
iii. In a suit for recovery of possession and injunction, is it not the bounden duty of the plaintiff to prove his title and possession over the property on which the relief sought for?
iv. Whether the plaintiff can claim title over 50 cents comprised in survey No.405/1 which even prior to Ext.A1, sale deed was assigned to DW1 as per Ext.B10, gift deed, which is duly accepted by the plaintiff?
v. Even though the court can mould a relief, can the appellate court grant more relief than what is sought for, in the plaint?
6. It is contended by the learned counsel for appellants/defendants 1, 3 and 4 that there is no proper identification of the suit property and atleast, plaint B schedule. It is argued that the Advocate Commissioner has not complied with the directions the trial court had issued while remitting Exts.C3 and C3(a) vide order on I.A.No.2583 of 2001. According to the learned counsel, without ascertaining the matters directed by the trial court as per order on I.A.No.2583 of 2001, no finding was possible that the plaint B schedule forms part of plaint A schedule covered by Ext.A1. It is further argued by the learned counsel that the first appellate court is not correct in proceeding as if Ext.B10, gift deed has not taken effect. Exts.B1 to B3 were not properly considered while entering such a finding. It is also argued by the learned counsel that even if it is shown that the plaint B schedule does not form part of the 1.29 acres covered by Ext.B10, plaintiff cannot lay hands on the plaint B schedule since it forms part RSA No.551/2010 5 of rest of the property belonging to the late George and comprised in old survey No.402/1. In the circumstances, finding of the first appellate court that the plaint B schedule forms part of the plaint A schedule cannot be accepted.
7. The further contention the learned counsel has advanced is that there is no sufficient evidence to show that the yellow shaded portion in Ext.C4 situated towards the north-eastern portion of the plaint A schedule is in the possession of the plaintiff as found by the first appellate court. It is argued that the finding on possession is based on what the Advocate Commissioner has reported. According to the learned counsel, the Advocate Commissioner is not competent to state about possession of the property as that is a matter which the court has to decide based on the evidence. In the circumstances, it is argued that the decision of the first appellate court cannot be sustained and that of the trial court has to be restored.
8. The learned counsel for the 1st respondent/plaintiff has contended that in the original written statement the claim made by the defendants is that the plaint B schedule forms part of the 1.29 acres covered by Ext.B10 meaning thereby that plaint B schedule is comprised in survey No.405/1 but Exts.C3 and C4 convincingly show that plaint B schedule is not part of the property comprised in old survey No.405/1, but is part of old survey No.402/1. According to the learned counsel, defendants were under the impression that the plaint B schedule situated towards south-eastern portion of item No.1 of the plaint A schedule forms part of property comprised in survey No.405/1 and which is dealt RSA No.551/2010 6 with under Ext.B10 and under that impression, they trespassed into the plaint B schedule. It is argued by the learned counsel that the Advocate Commissioner has complied with the directions issued by the trial court while remitting Exts.C3 and C3(a) as per order on I.A.No.2583 of 2001.
9. So far as excess extent reported by the Advocate Commissioner in Exts.C3 and C4 is concerned, it is argued by the learned counsel that the excess extent is situated within well defined boundaries. When there is dispute regarding the extent and boundaries, the one or other which is more acceptable should prevail. Learned counsel has invited my attention to the evidence of the 1st defendant as DW1 to contend that the vendor, conscious of what he is assigning in favour of the plaintiff has executed Ext.A1. Learned counsel has placed reliance on the decisions in Ibrahim Koyakutty v. Varghese Varghese (1951 KLT117), Devan Krishnan Kartha v. Kochu Mohamed Pariathu and Chandrakumar v. Narayanan Bahuleyan (2011 (3)KLT 185).
10. As regards possession of the property, it is argued by the learned counsel that plaint A and B schedules lay as barren land while the property belonging to the defendants was cultivated with rubber, coconut, pepper, etc., that the existence of well defined boundary between the property covered by Ext.A1 and the property belonging to the defendants is reported by the Advocate Commissioner and hence the first appellate court is justified in finding RSA No.551/2010 7 that the plaint A schedule is in the possession of the plaintiff. The learned counsel also pointed out that there is level difference between the plaint A schedule and the property admittedly belonging to the defendants.
11. As per order on I.A.No.2583 of 2001, the trial court directed the Advocate Commissioner while remitting Exts.C3 and C3(a) to show the 50 cents in survey No.403/1, five acres in survey No.402/1 and 1.29 acres in survey No.405/1. I referred to the plaint A schedule and Ext.A1 to say that item No.1 in Ext.A1 is five acres in old survey No.402/1, item No.2 is 50 cents in old survey No.403/1 and item No.3 is 50 cents in old survey No.405/1. The Advocate Commissioner has reported that the re-survey number of old survey Nos.402/1, 403/1 and 405/1 is 702/7. It in re-survey No.702/7 that the Advocate Commissioner has found a total extent of 6.20.600 acres (as per Ext.C4).
12. So far as item No.2 of Ext.A1 - the 50 cents in old survey No.403/1 is concerned, there is no dispute between the parties. In Ext.C3, the property comprised in old survey No.403/1 is shown as towards north of the property covered by Ext.A1. As per Ext.C4, the excess extent found in survey No.403/1 (covered by Ext.A1) is 18.579 cents. So far as item No.1 - five acres in old survey No.402/1 is concerned, the excess extent reported by the Advocate Commissioner in Exts.C4 and C4(a) is only 0.429 cents. When it comes to item No.3 - 50 cents in old survey No.405/1, the excess extent found by the Advocate Commissioner is only 1.6 cents. Thus, it is seen that of the total excess extent RSA No.551/2010 8 reported by the Advocate Commissioner, the major portion comes in item No.2, the 50 cents in survey No.403/1 regarding which, I stated, there is no dispute between the parties.
13. So far as title of the plaint B schedule claimed by the plaintiff is concerned, I stated that it is comprised in survey No.402/1 and as per averments in the plaint, it forms south-eastern portion of the total extent of property conveyed to the plaintiff as per Ext.A1 and comprised in old survey No.402/1.
14. I stated that in the written statement originally filed, defendants claimed that the plaint B schedule forms part of 1.29 acres covered by Ext.B10. The said contention cannot be accepted since Ext.B10 concerns the 1.29 acres in survey No.405/1 while in Exts.C3 and C4, the plaint B schedule is reported to be comprised in survey No.402/1. I must also notice that the property comprised in survey No.405/1 is situated towards north-eastern portion of the property covered by Ext.A1 while, plaint B schedule, (the allegedly) trespassed area is situated towards south-eastern portion of the said property. Thus, it is clear that plaint B schedule does not form part of the 1.29 acres covered by Ext.B10 and comprised in old survey No.405/1.
15. I do not forget that the defendants in their additional written statement contended that their predecessor-in-interest, the late George (vendor of the plaintiff) had retained some land in old survey No.402/1 towards east of RSA No.551/2010 9 the property conveyed by Ext.A1. The learned counsel has invited my attention to the eastern boundary of item No.1 of Ext.A1. In Ext.A1, the eastern boundary of item No.1 is described as rest of the property belonging to the vendor in old survey No.402/1 and 405/1. Thus, it is clear that towards east of item No.1 in Ext.A1, the vendor had retained some property in old survey Nos.402/1 and 405/1.
16. Then the next question is whether the plaint B schedule is part of property retained by the vendor in old survey No.402/1? It is in this regard that the learned counsel has invited my attention to the directions issued by the trial court on I.A.No.2583 of 2001 while remitting Exts.C3 and C3(a). There was a direction to show the 50 cents in survey No.403/1 (which I said, is situated towards northern portion of the property covered by Ext.A1), the five acres in survey No.402/1, 1.29 acres in survey No.405/1 and, the excess area if any as per the document of title. It is seen from Ext.C4 that the Advocate Commissioner has identified the property comprised in survey No.405/1 and it is given in yellow and green shades, the yellow shade portion being, according to the Advocate Commissioner in the possession of the plaintiff and the green shaded portion on the east being in the possession of the defendants. It is also seen that the Advocate Commissioner has shown the property comprised in old survey No.402/1 situated towards east of plaint A schedule as also plaint B schedule. Therefore, it is not as if the Advocate Commissioner has not complied with the directions.
RSA No.551/2010 10
17. It has come in evidence that the suit property covered by Ext.A1, (including the excess extent reported in Exts.C3 and C4) lie within the well defined boundaries. On the east of the property covered by Ext.A1, there is a stone wall having an oldness of about 30 years. No doubt, the defendants have their own explanation as according to them, it is the 'edakayyala' between the properties belonging to the defendants. But, along with that I must also notice that including the plaint B schedule, the entire property assigned to the plaintiffs as per Ext.A1 was barren land while, the rest of the property admittedly belonging to the defendants is well cultivated with rubber, coconut, pepper, etc., and the Advocate Commissioner reported that in the plaint B schedule, at the time of his first inspection he found two months old tapioca cultivation. According to the plaintiff, it was during the first week of August, 1995 that the trespass into the plaint B schedule was noticed. It is difficult to think that when the entire rest of the property admittedly belonging to the defendants is planted with rubber, coconut, pepper, etc. in the disputed plaint B schedule alone which is a small extent, they thought of cultivating tapioca. It is clear that about two months before inspection of the Advocate Commissioner, the defendants trespassed into the plaint B schedule and planted tapioca. As pointed out by the trial and first appellate courts it would appear that defendants were under the impression that the plaint B schedule is comprised in survey No.405/1 in which they, as per Ext.B10 are claiming title and possession and in that impression they trespassed.
RSA No.551/2010 11
18. The prayer for recovery of possession is regarding plaint B schedule. Hence the title of B schedule alone need be decided. I found that the claim of defendants that plaint B schedule is part of the 1.29 acres covered by Ext.B10 is not sustainable. I also found that plaint B schedule is comprised in survey No.402/1 and on its east is the rest of the property belonging to the vendor of Ext.A1. Plaint B schedule is separated from the rest of property in survey No.402/1 and is part of the plaint A schedule. This is clear from Exts.C3, C4 and other evidence. It follows that the plaintiff is entitled to recover possession of plaint B schedule on the strength of its title.
19. So far as prayer for injunction regarding rest of the plaint A schedule is concerned, learned counsel for the plaintiff has referred to me the evidence regarding possession including the well-defined boundaries of the property which I have already adverted to. The Advocate Commissioner in Ext.C4, as aforesaid, has shown the 1.29 acres covered by Ext.B10 and comprised in old survey No.405/1 as taking in the yellow and green shaded portions. Separating the yellow shaded and green shaded portions, the Advocate Commissioner has found and reported in Exts.C3 and C4 a stone wall having oldness of about 30 years. Therefore, there is no difficulty in holding that the yellow shaded portion situated towards western side of the said stone wall, along with rest of the plaint A schedule is in the possession of the plaintiff. The decree for prohibitory injunction is justified.
RSA No.551/2010 12
20. It is seen from the judgment of the first appellate court that certain observations are made as to whether Ext.B10, gift deed has come into effect or not. It appears that the first appellate court has proceeded as if Ext.B10, gift deed has not come into effect regarding the entire property referred therein. Ext.B1 is a receipt dated 16.02.1970 for payment of revenue for the properties mentioned therein including the 1.29 acres in old survey No.405/1. It is seen that mutation stood in the name of the predecessor-in-interest of the defendants and the plaintiff but, revenue was paid by the 1st defendant. Ext.B2 is a receipt dated 08.03.1973 where the pattadar is shown as the 1st defendant. That is in respect of the property comprised in survey No.405/1 (though, the extent is not mentioned). Ext.B3 is yet another receipt dated 24.03.1992 which shows that the 1st defendant as pattadar has paid revenue for the 50 cents in old survey No.405/1. The learned counsel for the defendants pointed out that by Ext.B3, revenue was paid only for 50 cents in survey No.405/1 since by that time Ext.B9, partition deed was executed between the 1st defendant and others.
21. I am inclined to think that the finding or observation of the first appellate court as to whether Ext.B10 has taken effect was unnecessary since in the present suit a decision regarding that was not required. The reason is that so far as the yellow shaded portion comprised in survey No.405/1 found to be in the possession of the plaintiff is concerned, there is no prayer for declaration of title and the prayer is only for prohibitory injunction based on possession. It was not necessary to say whether Ext.B10, gift deed has taken effect or not wholly or otherwise. The said finding/observation is vacated. RSA No.551/2010 13
22. The learned counsel for the defendants has contended that the first appellate court has granted a larger relief than what is claimed. That argument is based on the contention that the total extent of the plaint A schedule (including plaint B schedule) referred to in the plaint is six acres but in Ext.C4, the total extent of land claimed by the plaintiff is shown as 6.20.600 acres. Regarding that, I stated that a finding on title is required only as regards the plaint B schedule as recovery of possession of that portion alone is sought on the strength of title and so far as rest of the plaint A schedule is concerned, relief prayed for is only prohibitory injunction based on possession. The entire 6.20.600 acres is found to be in the possession of the plaintiff and lying within well defined boundaries. That finding is sufficient to sustain the decree for prohibitory injunction. Hence, it is unnecessary to go into the question of title to the excess extent (plaint B schedule is found to be part of property covered by Ext.A1 and forming the south-eastern portion of item No.1 of Ext.A1).
23. It is argued that without amendment of the plaint schedule regarding the extent (6.20.600 acres), the first appellate court was not correct in granting relief for the entire 6.20.600 acres when the plaint schedule mentions only 6.00 acres. That contention also cannot stand in view of the finding regarding title of plaint B schedule and possession of the rest of plaint A schedule lying within specific boundaries.
RSA No.551/2010 14
24. In the light of what I have stated above, I do not find reason to interfere with the decree granted by the first appellate court for recovery of possession of the plaint B schedule on the strength of title on the finding that it forms part of item No.1 of Ext.A1. I do not also find reason to interfere with the decree for prohibitory injunction granted by the first appellate court concerning the plaint A schedule based on the possession claimed by the plaintiff. But the finding entered by the first appellate court concerning Ext.B10, gift deed, whether it has taken effect or not is vacated and left open. I also make it clear that it is not necessary in this case to go into the title of the excess land found by the Advocate Commissioner.
25. The substantial questions of law framed are answered as above.
Resultantly this Second Appeal is dismissed with the directions contained in paragraph 24.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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