Kerala High Court
Kumari Amma vs Narayani Paru on 15 July, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 131 of 1999(G)
1. KUMARI AMMA
... Petitioner
Vs
1. NARAYANI PARU
... Respondent
For Petitioner :DR.V.N.SANKARJEE
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice P.BHAVADASAN
Dated :15/07/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 131 of 1999
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Dated this the 15th day of July, 2011.
JUDGMENT
The plaintiff in O.S.605 of 1981 before the Munsiff's Court, Cherthala is the appellant. Her suit was dismissed by the trial court and which was confirmed in appeal.
2. The plaintiff claims to have obtained 98 = cents of land as per Ext.A1 Will dated 12.2.1968. The defendant was the kudikidappukari in the property. At the time when the father of the plaintiff was alive, the defendant had preferred an application for kudikidappu as O.A.4309/1970. That application was allowed and 10 cents of property was allotted to her which is situated on the north-western corner of the total property leaving 34 links from the northern boundary and 35 links from the western boundary. Ever since the assignment in her favour, the defendant is in possession and enjoyment of S.A.131/1999. 2 the property. Later the plaintiff came to understand that the defendant has trespassed into a portion of her property and reduced it into her possession. She had put up a fence on the southern and eastern portion of the encroached property. Inspite of demand by the plaintiff to surrender the trespassed portion, the defendant retained the trespassed portion. Hence the suit.
3. The defendant resisted the suit. She disputed that she had encroached into any portion of the property owned and possessed by the plaintiff and contended that she was in exclusive possession and enjoyment of the property which was assigned to her by the Land Tribunal as a result of her claim for kudikidappu. The plaintiff has adopted a dubious method to usurp a portion of the property thus assigned to the defendant. On the basis of these contentions, she prayed for a dismissal of the suit.
4. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A9(a) from S.A.131/1999. 3 the side of the plaintiff. The defendant Examined D.Ws.1 and and had Ext.B1 marked. Exts.C1 to C4(a) are the Commissioner's plan and report. On an evaluation of the evidence in the case, the trial court came to the following conclusions:
i) The plaintiff got only 98 = cents. After setting apart 10 cents she has now 88 = cents. Exts.C4 and C4(a) shows that the plaintiff is in possession of 90 cents.
ii) Ext.A5 plan is not reliable and accurate in view of Exts.C4 and C4(a).
iii) The disputed portion is situated within the fencing of the defendant and there is no trespass. On the basis of the above findings, the suit was dismissed.
5. The plaintiff took up the matter in appeal. The appellate court also concurred with the trial court in coming to the conclusion that there was no trespass as alleged in the plan. It also held that going by the boundaries in Ext.B1 and Ext.A1, the plaint description is wrong. The lower appellate court also concurred with the trial court that S.A.131/1999. 4 Ext.A5 cannot be relied. On the basis of these findings, the appeal was dismissed.
6. Notice is seen issued on the following questions of law:
i) Whether the benefit of adverse possession can be granted to the respondent when the respondent has no such case of adverse possession against the title of the appellant?
ii) is the court below justified in questioning the validity of Exts.A5 and A6, the sketch and the mahazar respectively, prepared by the Land Tribunal, and discarding the same when the validity of those documents remain unchallenged before the Land Tribunal?
iii) Can the proved title of the appellant be denied for technical and super technical reasons?"
7. Learned counsel appearing for the appellant contended that the courts below have erred both on facts and in law. The plaintiff obtained the property as per Ext.A1 Will dated 12.2.1968. The defendant was only a kudikidappukari under the plaintiff and she was granted 10 S.A.131/1999. 5 cents as per Ext.A4 order. Ext.A5 is the sketch of the property so assigned to the kudikidappukari and Ext.A6 is the mahazar. According to the learned counsel the question is not whether the plaintiff can get excess area but whether the defendant can claim to be entitled to a larger extent than 10 cents assigned to her and the plot shown in the sketch namely Ext.A5. Ext.A5 is the sketch prepared by the Revenue Inspector and it is appended to the purchase certificate and it is only that property which is available to the kudikidappukari. Those documents have become final and there is no challenge to those documents. Therefore, the defendant has to confine her right to the property covered by Ext.A5 sketch. For the rest of the property, the plaintiff is entitled to put up boundaries. Merely because it may be revealed that the plaintiff has a larger extent than what is shown in her document does not matter because the property obtained by the plaintiff will have to be determined with reference to the boundaries and not with reference to the extent. For the above proposition, learned S.A.131/1999. 6 counsel relied on the decision reported in Chandrakumar v. Narayanan Bahuleyan (I.L.R. 2011 (2) Kerala 897).
8. Learned counsel for the appellant went on to contend that the the courts below could not have discarded Ext.A5 sketch on the basis of Exts.C4 and C4(a). While preparing Ext.A5 sketch, the authorities concerned were performing a statutory duty and it will be deemed to have been done in accordance with law unless it is shown otherwise. Learned counsel relied on Sections 80, 80A and 80B of the Kerala Land Reforms Act and Rules 87, 88 and 89 of the Kerala Land Reforms (Tenancy) Rules.
9. All that the lower courts had to do was to identify the property covered by Ext.A5 and that has not been done. Therefore, it is contended that the judgments and decrees of the courts below are clearly unsustainable in law.
10. Learned counsel appearing for the respondent pointed out that the plaintiff has to succeed on her own pleadings and evidence and cannot depend upon the S.A.131/1999. 7 weakness in the defence case. The suit was one for declaration and recovery of possession and the burden was on the plaintiff to establish her case. Learned counsel pointed out that the description in Ext.A1 and in the plaint schedule are totally different and that has been done with ulterior motive. The only intention of the plaintiff is to dispossess the defendant of a portion of the property assigned as kudikidappu. Both the courts below have analysed the evidence meticulously and came to the conclusion that the plaintiff has miserably failed to establish her case. This finding, according to the learned counsel, is a finding of fact and no substantial question of law arises for consideration in this Second Appeal.
11. The dispute in this case, which is three decades old, is centered round 3 cents of property comprised in Sy. No.40/23. Admittedly the plaintiff got 98 = cents of property comprised in Sy. 40/23B as per Ext.A1. The boundaries shown in Ext.A1 are as follows: S.A.131/1999. 8
"
."
The western boundary may be kept in mind. Ext.B1 is the prior document of title of the plaintiff.
12. The trump card of the plaintiff is Ext.A5 sketch. It is an admitted fact that the defendant was a kudikidappukari and she had obtained assignment of 10 cents of land. Ext.A4 is the order, Ext.A5 is the sketch and Ext.A6 is the mahazar. Ext.A6 is the mahazar filed by the Revenue Inspector in pursuance to the application filed by the applicant for purchase of kudikidappu. Section 80A and 80B of the Kerala Land Reforms Act read as follows:
"80A. Right of Kudikidappukaan to
purchase his kudikidappu.- (1)
Notwithstanding anything to the contrary
contained in any law for the time being in force, a kudikidappukaran shall, subject to the provisions of this section, have the right to purchase the S.A.131/1999. 9 kudikidappu occupied by him and lands adjoining thereto.
(2) Notwithstanding anything contained in sub-section (1), where the total extent of land held by the peroson in possession f the land in which the kudikidappu is situate, either as owner or as tenant is less than one acre, the kudikidappukaran shall be entitled to purchase his kudikidappu and lands adjoining thereto only in cases where the person in possession of the land in which the kudikidappu is situate does not apply to the Government under sub section (3) of Section 75 for the acquisition of the land to which the kudikidappu may be shifted within a period of two years from the commencement of the Kerala Land Reforms (Amendment) Act, 1969:
Provided that in a case where the person in possession has applied under sub-section (3) of Section 75, the kudikidappukaran shall be entitled to purchase his kudikidappu and lands adjoining thereto if such application by the person in possession of the land is rejected or if such person fails to pay the expenses for shifting the kudikidappu as required by sub section (3C) of Section 75.
S.A.131/1999. 10
(3) The extent of land which the kudikidappukaran is entitled to purchase under this section shall be three cents in city or major municipality or five cents in any other municipality or ten cents in a panchayat area or township:
Provided that where the land available for purchase in the land in which the kudiki dappu is situate, or the land in which the kudikidappu is situate, is less than the extent specified in this sub section, the kudikidappukaran shall be entitled to purchase only the land available for purchase or, as the case may be, the land in which the kudikidappu is situate.
(4) Notwithstanding anything contained in sub section (3), where in the lands held by a person, either as owner or as tenant, there are more kudikidappukars than one, the maximum extent of land which is liable to be purchased under this section shall be,-
(a) where such person holds less than one acre of land, three cents in a city or major municipality or five cents in any other municipality or ten cents in a Panchayat area or township;
(b) where such person holds one acre or more, but less than two acres, of land six cents in S.A.131/1999. 11 a city or major municipality or ten cents in any other municipality or twenty cents in a panchayat or township;
(c) where such person holds two acres or more, but less than three acres, of land, nine cents in a city or major municipality or fifteen cents in any other municipality or thirty cents in a panchayat area or township;
(d) where such person holds three acres or more, but less than four acres, of land, twelve cents in a city or major municipality or twenty cents in any other municipality or forty cents in a panchayat area or township;
(e) where such person holds four acres or more, but less than five acres, of land, fifteen cents in a city or major municipality or twenty five cents in any other municipality or fifty cents in a panchayat area or township;
Provided that the extent of land which a kudikidappukaran shall be entitled to purchase shall, in no case, exceed the extent specified in sub-section (3):
Provided further that if in any case falling under clause (b) or clause (c) or clause (d) or clause (e), the extent specified in that clause is S.A.131/1999. 12 not sufficient for the purchase of an extent of three cents of land by each kudikidappukaran, the extent of land which is liable to be purchased under this section shall be the extent required for purchase of three cents by each kudikidappukaran:
Provided also that where any person in possession of any land in which there is a kudikidappu or more than one kudikidapu, has voluntarily transferred such land on or after the 1st day of July, 1969 and before the 1st day of January, 1970 or voluntarily transfers such land on or after the 1st day of January 970, the kudikidappukaran or each of the kudikidappukars shall be entitled to purchase such extent of land as he would have been entitled to purchase if such transfer had not taken place.
(5) Where any person holds five acres or more of land, either as owner or as tenant, and there are more kudikidappukars tan one in the lands held by him, each of the kudikidappukara shall be entitled to purchase the extent of land specified in sub-section (3).
(6) No kudikidappukaran shall be entitled to purchase any land which is not in the lawful S.A.131/1999. 13 possession of the person who holds the land in which the kudikidappu is situate or which is not within the boundaries of such land.
(7) The purchase price payable by a kudikidappukaran in consideration of the purchase allowed under this section shall be twenty-five per cent of the market value of the land purchased and the improvements thereon, other than the improvements, if any, belonging to the kudikidappukaran:
Provided that where the person in possession of the land in which the kudikidappu is situate or, where he is a member of a family, such family, holds lands in excess of the ceiling area, the purchase price payable by the kudikidappukaran shall be one-half of the purchase price payable under this sub-section.
Explanation.- The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the foregoing proviso, and if no date has been notified under Section 83, the date of the application under sub-section (1) of Section 80B shall be deemed to be the date notified under Section 83. S.A.131/1999. 14
(8) The purchase price payable by the kudikidappukaran shall be met from the Kudikidappukar's Benefit Fund constituted under Section 109.
(8A) Notwithstanding anything contained in sub-sections (7) and (8) the kudikidappukaran shall not be liable to pay his share of the purchase price in cases where the person in possession of the land is holding such land under a landlord or more than one landlord and the right, title and interest of such landlord or landlords have not vested in the Government under Section 72, the person in possession of such land and such landlord or landlords agrees or agree in writing that the kudikidappukaran need not pay his share of the purchase price.
(9) Where the kudikidappukaran applies under sub-section (1) of Section 80B for purchase of his kudikidappu, and the Land Tribunal, on application within such time as may be prescribed by the person in possession of the land in which the kudikidappu is situate, is satisfied that the portion to be purchased is so located as to cause inconvenience to him, the Land Tribunal may S.A.131/1999. 15 require the kudikidappukaran to purchase another portion of that land:
Provided that the kudikidappukaran shall have the right to opt for the portion to be purchased by him:
Provided further that the kudikidappukaran shall not be entitled to opt for any portion which is not adjoining the boundaries of the land, except with the consent of the person in possession of the land:
Provided also that if the kudikidappukaran purchases another portion of the land, the person in possession of the land shall be liable to pay the price of the homestead, if any, erected by the kudikidappukaran and the cost of shifting the kudikidappu to such portion.
(10) If any kudikidappukaran refuses to opt under sub-section (9), his application under sub-section (1) of Section 80B shall be dismissed.
(11) Notwithstanding anything contained in sub-sections (4) and (5), where there are more kudikidappukars than one and the extent of the land which the kudikidapppukars are entitled to purchase, or the extent of the land in which the kudikidappus are situate, is less than the multiple S.A.131/1999. 16 of the number of kudikidappukars and the extent which each kudikidappukaran is entitled to purchase under this section, the land available for purchase, or the land in which the kudikidappus are situate, as the case may be, shall, in the absence of any agreement among the kudikidappukars, be apportioned in equal shares, as far as practicable, for purchase by the kudikidappukars.
(12) For the purposes of this section,-
(a) the extent of land held by a person shall be the total extent of land held by such person, either as owner or as tenant, on the 1st day of July, 1969;
(b) in calculating the extent of land held by a person who is a member of a family and the number of kudikidappukars in the lands held by such person, the extent of the land held individually by any member of his family or jointly by some or all of the members of such family, and the number of kudikidappukars thereon shall also be taken into considerations;
(c) in deciding the extent of land available for purchase by the kudikidappukaran or kudikidappukars,-
S.A.131/1999. 17
(i) any voluntary transfer effected, or any boundaries put up or any building or other structures erected, after the 1st day of July, 1969, shall not be taken into account;
(ii) the sites of the buildings and other structures situate on the land shall be excluded.
80B. Procedure for purchase by
kudikidappukaran.- (1) A kudikidappukaran
entitled under Section 80A to purchase the kudikidappu occupied by him and lands adjoining thereto may apply to the Land Tribunal for such purchase.
(2) An application under sub-section (1) shall be in such form and shall contain such particulars as may be prescribed.
(3) The Land Tribunal shall, after giving notice to the kudikidappukars in the land in which the kudikidappu is situate and other persons interested in the land and after such enquiry as may be prescribed, pass such orders on the application as it thinks fit:
Provided that where an application under sub-section (1) of Section 77 in respect of the kudikidappu is pending, the Land Tribunal shall S.A.131/1999. 18 not pass any order under this sub-section before the disposal of that application.
(4) An order under sub-section (3) allowing an application shall specify.-
(i) the extent of land which the kudikidappukaran is entitled to purchase;
(ii) the purchase price payable in respect of the land allowed to be purchased by the kudikidappukaran;
(iii) the amounts due to the person in possession of the land in which the kudikidappu is situate and other persons interested in the land;
(iv) the value of encumbrances subsisting or claims for maintenance or alimony charged on the land allowed to be purchased by the kudikidappukaran;
(v) the amount payable to the holder of the encumbrance or the person entitled to the maintenance or alimony and the order of priority in which such amount is payable;
(vi) such other particulars as may be prescribed.
(5) If the person in possession of the land in which the kudikidappu is situate or the landowner or the intermediary, f any, of the land is liable to S.A.131/1999. 19 pay any amount to the kudikidappukaran towards the price of the homestead or the cost of shifting the kudikidappu, the Land Tribunal shall in passing orders on the application for purchase set off such amount against the purchase price payable to such person.
(6) Where the right, title and interest of the person in possession of the land in which the kudikidappu is situate or any other person interested in the land form part of the security for any encumbrance or charge for maintenance or alimony, the Land Tribunal shall, for the purpose of determining the value of the encumbrance or the charge for the maintenance or alimony relating to the portion in respect of which purchase is allowed, apportion the entire encumbrance or charge for the maintenance or alimony between the land in which the kudikidappu is situate and the portion allowed to be purchased in proportion to the values of the two portions.
(7) Where the person in possession of the land in which the kudikidappu is situate is a tenant, the purchase price payable in respect of the land to be purchased shall be apportioned S.A.131/1999. 20 among the landowner, the intermediaries, if any, and the tenant in possession of the land in proportion to the profits derivable by them from the holding.
Explanation.- "Profits derivable from the land" shall be deemed to be equal to,-
(i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him;
(ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and
(iii) in the case of the tenant in possession, the difference between the net income and the rent payable by him; and the rent payable by such tenant and the intermediary for the purpose of this Explanation shall be as calculated under the provisions of this Act."
Rules 88, 89 and 90 of the Kerala Tenancy Rules read as follows:
"88. Plan of Kudikidappu and lands adjoining thereto to be appended to S.A.131/1999. 21 certificate of purchase.-(1) Where a Land Tribunal allows an application for purchase, the land allowed to be purchased, inclusive of the land on which the kudikidappu is erected or constructed, shall be plotted in a sketch of the land in which such kudikidappu is situate; and such sketch shall form part of the records of the case.
(2) Where an appellate authority makes any modification to the extent or location or both of the land allowed to be purchased by the Land Tribunal, it shall indicate in the sketch referred to in sub-rule (1) the extent or location or both as modified by such authority and certify in that sketch in its own hand the fact of such modification.
(3) Where the High Court in revision makes any modification to the extent or location or both of the land allowed to be purchased by the Land Tribunal or the appellate authority, the Land Tribunal shall arrange to prepare a revised sketch in accordance with the modifications so ordered.
(4) A copy of the final sketch prepared or modified under this rule shall be appended to the certificate of purchase.
S.A.131/1999. 22
89. Authority or bank in which purchase price due to private trust, endowment, etc., is to be deposited.- The provisions of Rule 60 shall so far as may be, apply to the payment of purchase price by the Government to the persons mentioned in sub-section 7) of Section 80E.
90. Headquarters of Land Tribunal, Appellate Authority and Land Board.- (1) The headquarters of the Land Board shall be the headquarters of the Government or such other place as may be fixed by the Government. (2) The headquarters of the Land Tribunal or the appellate authority or the Taluk Land Board shall be at such place as may be fixed by the Government, but it may hold camp sittings at any other place within or outside its area of jurisdiction under the general or special orders of the Land Board."
As rightly noticed by the learned counsel for the appellant, a certificate of purchase issued by the Land Tribunal is conclusive regarding the right, title and interest of the S.A.131/1999. 23 recipient in respect of the property covered by the certificate.
13. To understand the controversy involved in this case, it is profitable to refer to Exts.C4 and C4(a) marked in the case. The commissioner has located 1.07 acres of land, which according to him is the total extent available in Sy.No.40/23. Out of the said extent, 7 cents belonged to the brother of the plaintiff, and that is shown as plot 11 in Ext.C4
(a) plan. That lies on the extreme western side. That is infact comprised in Sy.No.40/23A. The 7 cents plot is covered by Ext.B1.
14. The case of the defendant is that plaintiff has property only on the eastern side of plot No.11 shown in Ext.C4. It is therefore contended that the 34 links from the northern boundary and 35 links from the western boundary shown in Ext.A5 will have to be determined from the eastern boundary of plot 11 shown in Ext.C4(a) plan and not from the western boundary of plot 11. The basis for this S.A.131/1999. 24 contention is that the plaintiff has no right over plot 11 in Ext.C4(a) going by Ext.A1 document.
15. The appellant on the other hand contends that the claim of the defendant is incorrect. The defendant cannot be heard to contend for the above position because she is bound by Ext.A5 sketch. The order granting kudikidappu is based on Ext.A5 sketch and it has become final and she is bound by it.
16. It must be said that there is considerable force in the contention of the learned counsel for the appellant before this court. Ext.A5 is the sketch prepared by the Revenue Inspector and Ext.A6 is the mahazar prepared by him. It was on the basis of these that Ext.A4 order was passed and purchase certificate was issued to the tenant. It is significant to notice that the sketch prepared by the Revenue Inspector is appended to the purchase certificate. Going by Ext.A5 35 links is seen left from the western boundary of the entire 1.07 acres and not from the western boundary of 1 acre of plot left after Ext.B1 assignment. S.A.131/1999. 25
17. If as a matter of fact Ext.C4(a) is accepted, there is no dispute that plots 1, 2, 3 and 4 shown in Ext.C4
(a) will constitute the kudikidappu covered by Exts.A4, A5 and A6. If on the other hand, as done by the Commissioner, 34 links are left from the northern boundary of the property covered by Ext.A1 and 35 links from the western boundary of Ext.B1, then plots 2, 3, 6 and 7 in Ext.C4(a) will form kudikidappu.
18. One must notice here that plot 7 which is the disputed pot has an extent of 3 cents.
19. Legally one has to strictly adhere to Ext.A5. It is understood that while the landlord conceded the claim of kudikidappu, he has also sought for shifting of the same. The report and the sketch prepared by the Revenue Inspector was accepted and Ext.A4 order was passed. If the defendant had any grievance regarding the sketch and the mahazar, she ought to have agitated the matter before the higher forum. She cannot now be heard to say that Ext.A5 is wrong.
S.A.131/1999. 26
20. Both the courts below have erred in their approach to the issue on hand. Plots 1, 2, 3 and 4 in Ext.C4
(a) will constitute the kudikidappu covered by Ext.A5. Strictly speaking the defendant is entitled to only that plot. D.W.1 in her evidence has stated in one portion that there is property outside the fencing. She would also say that since the property on the western side was lying at a lower level, that was not fenced. She must be referring to plot No.1 in Ext.C4(a).
21. The courts below undertook the exercise of comparing the boundaries in Ext.B1 and Ext.A1 documents and thereafter went on to ascertain the identity of the suit property. Title of the plaintiff to 88 = cents is admitted and so is also Ext.A5. As already stated, plot covered by Ext.A5 is identified as plots 1, 2, 3 and 4 in Ext.C4(a) plan. The courts below did not appear to be fully justified in their approach that the plots taken in are plots 2, 3, 6 and 7.
22. One significant fact stares at the face of the plaintiff. It is shown that items Nos. 3, 7 and 8 lies within S.A.131/1999. 27 the same fencing and the defendant resides in that plot. The fencing going by the commissioner's report is a very old one. Plot 3 has an extent of 6.740 cents, plot 7 has an extent of 3.000 cents and plot 8 has an extent of 0.600 cents coming up a total of 10.340 cents.
23. Of course, going by Ext.A5, it is difficult to say that Ext.A5 is with respect to plots 3, 7 and 8.
24. The defendant has a case that the green shaded portion shown in Ext.C4(a) plan was initially a thodu and it was in order to exclude that portion that 34 and 35 links were left from the western and northern boundary respectively. It was thereafter the balance extent was assigned to the plaintiff. Both the courts below accepted the case put forward by the defendant and found that there is no trespass as alleged.
25. One has to say that the courts below were not fully justified in its conclusion and approach. But the fact remains that plot Nos. 3, 7 and 8 lies as a compact plot within the fencing put up by the defendant and she has been S.A.131/1999. 28 enjoying it for over three decades. At this distance of time, it will be unwise and uncharitable to interfere with the finding of the courts below and upset the present state of affairs already made pursuant to Ext.A5 sketch. Therefore, even though this court is unable to subscribe to the views taken by the lower courts, in the interests of justice and in equity it is felt that it is not necessary to interfere with the findings and conclusions drawn by the courts below for the reason that litigation has dragged on for three decades. This court is given to understand that there has been subsequent assignments in respect of the property also. For the above reasons, it is felt that no interference is called for with the judgment and decree of the court below.
This appeal is without merits and it is accordingly dismissed. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.