Kerala High Court
Bhageerathi vs Ramakrishna on 2 August, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 230 of 1997()
1. BHAGEERATHI
... Petitioner
Vs
1. RAMAKRISHNA
... Respondent
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :SRI.K.G.GOURI SANKAR RAI
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/08/2010
O R D E R
P.BHAVADASAN, J.
------------------------------------- SA No.230 of 1997-B
------------------------------------- Dated 2nd August 2010 Judgment The plaintiffs in OS No.387/89 before the Munsiff's Court, Kasaragod, are the appellants.
2. The Trial Court decreed the suit in favour of the appellants, but the first Appellate Court reversed the same.
3. The dispute related to 86 cents of land comprised in RS No.105/4 of Arikkady Village in Kasaragod Taluk, which is shown as A schedule in the plaint. According to the plaintiffs, Patta No.30 in respect of the said property was granted to one Pondayya, who, thereafter continued to be in possession and enjoyment of the property. By subsequent devolutions, it ultimately came to vest with the plaintiffs. The plaintiffs and their predecessors-in-interest had been cultivating the property with various crops. Originally, the plaint A schedule SA 230/97 2 property was a dry land and a portion of the same was reclaimed and it was converted into a paddy field, by Pondayya. Compound wall was put up on the eastern, southern and northern sides of plaint A schedule property and they were regularly maintained and repaired. The plaintiffs' predecessor Mr.Ramachandra used to sell mud from the plaint schedule property and for that purpose, a road was formed. Stones were also quarried from the property. For drawing electric lines, the KSEB had cut and removed some cashew trees standing in the plaint schedule property, for which compensation was paid. When the defendants tried to trespass into the property, Ramachandra had filed OS No.34/82. The said suit happened to be dismissed. Taking advantage of the dismissal of the suit, the defendants are said to have trespassed into the property. Hence the suit, for declaration, for recovery of possession and for other consequential reliefs.
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4. The first defendant did not contest the suit. The second defendant in his written statement, denied the allegations in the plaint. It is contended that the property originally belonged to the Government and the claim made by the plaintiffs that patta was issued to Pondayya was incorrect. The property has been in absolute possession and enjoyment of the second defendant and his predecessors-in-interest. The entire A schedule property is a dry land and a portion of it was reclaimed and convered into garden land by the predecessors-in-interest of the defendants and made it cultivable. They had been raising seasonal crops in the property. Even assuming the plaintiffs had any manner of right over the suit property, the same has been lost by adverse possession and limitation. On the basis of the above pleadings, the second defendant prayed for dismissal of the suit.
5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A8 from the SA 230/97 4 plaintiffs. The defendants had DW1 examined and Exts.B1 to B8 marked. Ext.C1 is the Commissioner's report and Ext.C2 is the plan. Ext.X1 third party exhibit was also marked.
6. The Trial Court, on an evaluation of the evidence, found that the plaintiffs were able to produce sufficient evidence to show that they were entitled to the suit property. Even though the second defendant produced several documents, the Trial Court was of the view that it could not advance his case. It was also noticed by the Trial Court that the second defendant had no case that either he or his predecessor-in-interest owned the property in RS No.105/4. Finding in favour of the plaintiffs, the suit was decreed.
7. The matter was carried in appeal by the second defendant. The first Appellate Court was of the view that since the plaintiffs have not produced the document of title, they cannot succeed. The lower Appellate Court observed that the weakness of the defence SA 230/97 5 case is not a ground to grant a decree in favour of the plaintiffs. According to the lower Appellate Court, there was nothing to show that the plaintiffs were entitled to the property. Accordingly, the Trial Court decree was reversed and the suit stood dismissed. The said Judgment and decree are assailed in this appeal.
8. The following questions of law are seen formulated in this appeal :
"A. Whether in a suit based on plaintiffs' title and the same not challenged in the written statement and the defence case of prescriptive title by adverse possession and limitation is found against decree for recovery of possession should not follow ? B. Whether the lower Appellate Court was not bound to consider the effect of Article 65 of the Limitation Act (Act 36 of 1963) and discuss the position in law before reversing the finding of the Trial court on issue 1 that the plaintiffs hold a valid title to plaint A schedule properties especially when SA 230/97 6 the lower Appellate Court itself found that Exhibits B4 and B5 produced by defendants do not help their attempt to claim title to the plaint schedule properties and Exhibits B2 and B3 do not have any bearing to the dispute of title and possession. C. Whether the lower Appellate Court having found that Exhibit A8 the sale deed dated 26.11.1932 does not take in RS No.105/4 Arikkady village (old S.No.1/1) ought to have placed any reliance for any purpose on Exhibits B4 (mortgage of 1950) and B5 (receipt of 1957).
D. Whether the lower Appellate Court acted legally in giving any credence to Ext.B7 (Patta No.136) when neither the pattadar nor anybody claiming thereunder and not even the defendants trace any title to plaint schedule properties to the same. E. Whether the lower Appellate Court has not completely gone off the tract in deciding the appeal merely on the question of burden of proof both as regards title and possession and whether its duty to SA 230/97 7 decide the case according to law on the subject has been discharged.
F. Whether the lower Appellate Court was right in reversing the decision of the Trial Court that the plaintiffs have discharged the onerous burden on them to prove that they have title over the pliant schedule properties.
G. Whether the lower Appellate Court ought not to have upheld the plaintiff's title and possession to the plaint schedule properties."
9. The learned counsel for the appellants pointed out that the question was one of possessory title and not of title as such. It is conceded by both sides that according to the learned counsel, that property originally belonged to the Government,. But, according to the plaintiffs, their predecessor-in-interest Pondayya obtained patta for the property. The documents produced by the plaintiffs show that the revenue records stand in favour of the plaintiffs. According to the learned counsel, the patta SA 230/97 8 stood in the name of Pondayya and by subsequent devolutions, it came to vest with the plaintiffs. The stand of the 2nd defendant, on the other hand, according to the learned counsel was that the patta was obtained fraudulently as Ramachandra was a Village-man and he could easily get documents manipulated. The learned counsel pointed out that unfortunately, without any evidence to that effect, the lower Appellate Court was inclined to accept the said plea. The learned counsel also contended that the main contention put forward by the defendant was one of adverse possession and limitation, which means that the title of the plaintiffs stood admitted. According to the learned counsel, the lower Appellate Court labours much to ascertain the title of the plaintiffs and that exercise was unwarranted. Once the plea of adverse possession and limitation is taken, the burden is on the person, who pleads the same to establish his claim. According to the learned counsel, the Trial Court has considered the documents produced by both sides and had SA 230/97 9 come to the right conclusion in favour of the plaintiffs. It is also pointed out that the observations and findings of the lower Appellate Court are mutually inconsistent. Nowhere in the plaint, it is contended that the plaintiff had a case that the suit property was assigned to them by the Government.
10. The learned counsel for the respondents, on the other hand, pointed out that the plaintiffs did plead title to the suit property and that being the position, they were bound to establish their title by adducing sufficient evidence. They cannot merely succeed by showing that the defendants did not have title or the defence case was weak. The second defendant had specifically disputed the title of the plaintiffs and the contention was that it was the second defendant who was in possession of the property along with other properties in RS No.104/7. The specific contention was that the plaint schedule property was lying contiguous with the other properties owned and possessed by the second defendant and they were enclosed within a common compound wall. According to the learned counsel, SA 230/97 10 the lower Appellate Court has correctly appreciated the evidence on record and has come to the right conclusion.
11. The plaintiffs do not claim assignment from Government, of the land involved in this suit. Considerable reliance was placed by the plaintiffs on the entries in the revenue records. Patta No.30 relating to the plaint schedule property comprised in RS No.104/7 stood in the name of Pondayya. Exts.A2, A3 and A4 are extracts of the settlement register, which show that Patta No.30 was issued to one Venkatarama, who is the predecessor-in- interest of the plaintiffs. Exts.A6 to A6(t) show that the plaintiffs have been paying tax for the property from 1960 onwards. It is significant to notice that those receipts show that revenue was being paid for the land comprised in Patta No.30. Ext.A7 is a document which shows that for drawing electric line through the property involved in the suit, compensation was paid to the predecessor-in-interest of the plaintiffs.
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12. There was an earlier suit between the parties. That was one for injunction. Ext.C2 report shows that the properties comprised in Survey Nos.104/7, 104/8 and 105/4 lay as a compact plot. It was on that basis that the earlier suit was dismissed.
13. It is true that the second defendant had produced Ext.B4 mortgage deed dated 07.09.1950. But, there is no such claim made in the written statement and it is significant to notice that even as on date, the defendant does not lay claim on that basis on the suit property. True, it covers 76 cents of land comprised in Survey No.104/7 also. But, surprisingly enough, no title is claimed. The document, which greatly impressed the lower Appellate Court is Ext.B7, which is the extract of survey settlement register. It is an admitted fact that earlier, the survey number was 1/1, which was later changed to 105/4. The lower Appellate Court noticed that it related to 81 cents and the entry was in the name of one Sakali. The lower Appellate Court was of the opinion that so long as the plaintiffs are not able to SA 230/97 12 show that as to how the name of Sakali changed to Pondayya, they cannot succeed.
14. It will be useful to refer to the evidence of DW1 at this point of time. In the cross examination, he deposed that the plaint schedule property is comprised in his patta. Then he says that he does not know, in whose name the patta stands. In categoric terms, he says that the plaint schedule property is not comprised in Patta No.30 of Arikkady village. When he was confronted with Ext.A1 document, he concedes that Patta No.30 relates to the plaint schedule property. Then he says that he acquired right from Venkatarama and Ramakrishna, found in Ext.A1 in respect of the plaint schedule property on the basis of possession. He accepts that he has not paid any basic tax in respect of the property covered by Patta No.30. He also submits that none of his predecessors-in-interest has paid tax in respect of that property. Then he goes on to say that he had never bothered to verify, in whose name the patta stands. He also states that he had not bothered to look at SA 230/97 13 the documents produced by the plaintiffs. He admitted that an electric line has been drawn through the property. He also concedes that no notice was served on him or his predecessors-in-interest before drawing the line. Then he says that his father was asked by the Electricity Board whether he wanted any compensation and his father replied in the negative.
15. The above testimony of DW1 has to be taken along with the fact that he was unable to produce any documents to show that neither he nor his predecessor-in- interest has paid any tax for the suit property. Quite surprisingly enough, the lower Appellate Court rightly accepts the contention that Ramachandra being a Villageman, could have manipulated the records. Moreover, much is said about the inability on the part of the plaintiffs to prove how the name of Pondayya was substituted in the place of Sakali.
SA 230/97 14
16. While the revenue records produced by the plaintiffs do show that the property was in their possession and enjoyment, almost no documents whatsoever are produced by the defendant to show his right to the property. Ext.C2 plan gives an idea about the lie of the property. Ext.X1 shows that as per the records kept in the Taluk Office, Patta No.30 in old Survey No.1/1 of Arikkady village stands in the name of Venkatarama. It also shows that earlier, it stood in the name of Sakali. Merely because the plaintiffs are not able to explain as to how the name of Sakali got substituted, it does not mean that they had no possession over the suit property. It is this aspect which persuaded the lower Appellate Court to come to the conclusion that the documents produced by the plaintiffs might have been manipulated. There is no justification for such a finding especially in the light of the revenue records produced by the plaintiffs.
SA 230/97 15
17. It is felt that there has not been a proper consideration of the issues involved in the case by the lower Appellate Court. As already noticed, the lower Appellate Court seems to have been carried away by the inability on the part of the plaintiffs to produce their document to title. As Ext.A6 series documents take in other properties and since PW1 had stated that he had no other properties, the lower Appellate Court felt that they cannot be accepted. Then again, the reasons given for describing Exts.A7 and A8 are also not very convincing. The lower Appellate Court has not shown as to how the Trial Court has erred in its findings. It is felt that the matter needs to be sent back to the lower Appellate Court for fresh consideration in accordance with law and in the light of what has been stated herein above. Accordingly, the Judgment and decree of the lower Appellate Court is set aside and the matter is remanded to the lower Appellate Court for fresh consideration in accordance with law and in SA 230/97 16 the light of what has been stated herein above. The parties shall appear before the lower Appellate Court on 02.09.2010. The lower Appellate Court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within six months from the date of appearance of the parties. No order as to costs.
P.BHAVADASAN, JUDGE
sta
SA 230/97 17