Kerala High Court
*1. Valappile Purayil Hamsa vs Kunhamina Kommachi
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934
SA.No. 780 of 1998 (A)
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AS.80/1994 of SUB COURT, PAYYANNUR
OS.23/1992 of MUNSIFF COURT, PAYYANNUR
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APPELLANTS/APPELLANTS/DEFENDANTS:
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*1. VALAPPILE PURAYIL HAMSA,
S/O.AMMAD KUTTY, BUSINESS,
TALIPARAMBA AMSOM DESOM,
TALIPARAMBA TALUK. *(DIED)
2. MADHUMANDIRATHIL BABU, AGED 37,
S/O.KARUNAKARAN, RESIDING AT
PONNAMPARA, PERINGOME.
* ADDL. APPELLANTS 3 TO 9 IMPLEADED
3. NALAKATH BEEBI, W/O.LATE HAMSA,
JUNAINAS, ALLAMKULAM,
KARIMBAM P.O., TALIPARAMBA TALUK.
4. JUNAID, S/O.LATE HAMSA, RESIDING DO.
5. JUNAIRA, D/O.LATE HAMSA.
6. UVAIS, S/O.LATE HAMSA.
7. MIDLAJ, S/O.HAMSA.
8. SABEEB, S/O.LATE HAMSA.
9. JANNATH, D/O.LATE HAMSA.
PETITIONERS 5 TO 7 ARE MINORS,
REP. BY MOTHER THE 1ST PETITIONER.
* ARE IMPLEADED AS THE LRS OF THE DECEASED 1ST APPELLANT
AS PER THE ORDER DATED 18/01/2011 IN I.A.123/2011.
BY ADV. SRI.CIBI THOMAS.
RESPONDENTS/RESPONDENTS/PLAINTIFFS NO.2 TO 11:
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1. KUNHAMINA KOMMACHI,
W/O.OLIYAN MAMMAD, RESIDING AT
NAGAKLI, PERINGOME AMSOM DESOM,
TALIPARAMBA TALUK.
SA.No. 780 of 1998 (A)
2. ABDULLA, S/O. OLIYAN MAMMED.
3. FATHIMA, -DO-.
4. AHAMMED, -DO-.
5. MARIYAM, -DO-.
6. KHADEEJA, -DO-.
**7. HASSAN KUNHI, -DO-. **(DIED)
8. ABOOBACKER, -DO-.
9. RUKHIYA, -DO-.
10. MYMUNA, -DO-.
** SUPPLEMENTAL RESPONDENTS 11 TO 14 IMPLEADED
11. MUNEERA, W/O.HASSANKUNHI,
KARIPOTT, P.O. NHEKLI, VIA. PAYYANNUR,
PERINGOME VILLAGE, TALIPARAMBA TALUK.
12. ANEES, SON, KARIPOT , P.O. NHEKLI,
VIA. PAYYANNUR, PERINGOME VILLAGE,
TALIPARAMBA TALUK (MINOR).
13. ASEEB, SON -DO- -DO- (MINOR).
14. NIYAS, SON -DO- -DO- (MINOR)
[MINORS REPRESENTED BY GUARDIAN,
MOTHER MUNEERA (R11)].
** SUPPLEMENTAL RESPONDENTS 11, 12 & 13 ARE IMPLEADED
AS THE LEGAL REPRESENTATIVES OF DECEASED R7 AS PER
ORDER DATED 16/10/2000 ON C.M.P.2121/1999 AND SUPPLEMENTAL
RESPONDENT 14 IS IMPLEADED AS THE LRS OF DECEASED R7
AS PER ORDER DATED 16/10/2000 ON C.M.P.1982/2000.
R1 TO R3, R5, R6, R9, R10 &
ADDL. R11 TO R13 BY ADV. SRI.KALEESWARAM RAJ.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
P.BHAVADASAN, J.
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S.A.No.780 of 1998
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Dated this the 12th day of April, 2012
J U D G M E N T
The defendants who suffered a decree in O.S.No.23 of 1993 at the hands of the trial court which was confirmed in appeal are the appellants.
2. Parties and facts are hereinafter referred to as they are arrayed before the trial court.
3. During the pendency of this appeal, first appellant died and his legal representatives were brought on the party array as additional appellants 3 to 9. So also the 7th respondent died during the pendency of the appeal and his legal heirs have been brought on the party array.
4. The facts which are absolutely necessary for the disposal of this appeal are as follows:- The dispute in this case actually relates to plots B1 and B shown in the commissioner's plan which is marked as Ext.C1 in the case. There is no dispute as regards plots A and A1 which as admitted by both parties belonged to the plaintiffs and plots -:2:- S.A.No.780 of 1998 C, C1, C2 and C3 belonged to the defendants. The bone of contention in the suit was a rockey area. The plaintiff on the basis of their documents say that those two plots also belonged to them. While the defendants in the suit contended that the said area belonged to them by virtue of documents of title by which they claim to have acquired property. Both the parties relied on respective purchase certificates also.
5. The dispute essentially related to the identification of properties. A commissioner was deputed and he had filed Ext. C1 plan and Ext. C2 report. Going by the nature of contentions of the parties it is evident that the identification should have been made with respect to the respective title deeds of the parties, since it would appear from the records that there is a claim of overlapping area by both sides.
6. It is significant to notice that plaint was amended after the receipt of commissioner's report and brought in conformity with the commissioner's report. The defendants -:3:- S.A.No.780 of 1998 had a definite contention that the documents of title of the plaintiff do not take in property comprised in Sy.No.1, 2, and 3 also plots B and B1. They would rely on the purchase certificate obtained by them which is marked as Ext.B3 in support of the case.
7. The courts below have observed that three of the boundaries shown in the plaint tally with the commissioner's report and therefore in all preponderance of probability plots B1 and B may also belong to the plaintiff. For reaching such a conclusion the courts below also relied on the tax receipts produced by the plaintiffs. These were the items of evidence which persuaded the trial court to find in favour of the plaintiff which was upheld in the appeal.
8. Notice is seen issued on the following questions of law:-
1. Whether in the facts and circumstances of the case the respondent-plaintiff is entitled for an injunction, when neither boundaries, survey number nor improvements tallied with title deed?
-:4:- S.A.No.780 of 1998
2. Whether courts below were correct in law granting injunction where the properties were not identified properly?
3. Whether were correction of the plaint schedule in accordance with plan and report of Commissioner would be sufficient to establish possession without any documentary evidence to show possession.
4. Whether even the revenue receipts produced were for different property, which were shown to be admittedly in the possession of the respondents.
5. Whether in a suit for injunction the plaintiff is entitled to succeed without establishing possession over the property.
9. The learned counsel appearing for the appellants contended that there have not been a proper identification of the properties by the commissioner and it is not discernible from the commissioner's report as to the method adopted by him to identify the properties which he mentioned in the report as plots belonging to the plaintiffs and defendants. Referring to the purchase certificates and other documents of title of the plaintiffs it is pointed out that the boundaries do not tally and there was no attempt from the side of the plaintiff to have his property identified with respect to the documents of title. The observations of -:5:- S.A.No.780 of 1998 the courts below that the plaint schedule description tallies with the descriptions given in the commissioner's report is fallacious in the sense that plaint schedule was amended after the report was filed and the amendment was to bring it in conformity with the commissioner's report. It is also pointed out that the defendants had filed objections to the commissioner's report which has not been considered at all. The learned counsel also drew attention of this Court to the purchase certificate obtained by the plaintiffs, Sy.No. of the property made mention of in the document etc. It is also pointed out that in fact originally the claim of the plaintiff was only for 2 acres and after the amendment of the plaint the extent has been increased. On the other hand the purchase certificate obtained by the defendants shows an extent of 2.61 acres and in order to have that extent of property covered by the said document, it is necessary that plots B and B1 also taken as covered by the said documents.
10. The learned counsel went on to point out that the above vital aspects have been omitted to be noticed by the -:6:- S.A.No.780 of 1998 courts below and that has resulted in miscarriage of justice.
11. The learned counsel appearing for the respondents on the other hand pointed out that both the courts below have gone on preponderance of probabilities, i.e. possible case and have come to the conclusion that plots B and B1 in fact belonged to the plaintiff. That findings have been arrived at on appreciation of evidence in the case and are findings on facts which is not liable to be interfered while exercising jurisdiction under Section 100 of CPC. It is also pointed out that both the courts below have found that at least three boundaries shown in the plaint schedule tally with commissioner's report and there is slight difference in the northern boundary which on perusal of the records show that northern boundary is seem to be one as shown by the commissioner. In support of his contention that once the property is identified by boundary, the Survey No. and extent have no significance, the learned counsel relied on the decision reported in Chandrakumar v. Narayan Bahuleyan (2011(3) KLT 185), Savithri Ammal V. -:7:- S.A.No.780 of 1998 Padmavathi Amma (1990(1) KLT 187), Chumar V. Narayanan Nair (1986 KHC 507) and Ouseph Varkey v. Ouseph Joseph (1996 KLT 93). The learned counsel went on to point out that both the courts below have appreciated the evidence in proper perspective and no interference is called for.
12. After having heard the counsel on both sides and after having perused the records, this Court find it difficult to sustain the judgments and decrees of the courts below. As already noticed, the issue ultimately in fact relates to the identification of properties claimed by the respective parties with reference to the respective documents. One would have expected, the commissioner to identify the plots claimed by each of the parties with reference to their documents of title. Here the commissioner simply says that he identified the property with the help of the village Assistant. It is not discernible from the report as to on what basis the identification was made. Obviously it might have been as shown by the parties. Anyway one fact is very clear -:8:- S.A.No.780 of 1998 from the records that the title deeds of the respective parties have not been made the basis for identification of the properties.
13. From the perusal of the records, it is seen that both parties claimed property comprised in Sy.No.126/1A. It is also seen from the records that the said Sy.No. Comprises a large area. So it becomes necessary for the commissioner to ascertain which portion of that Survey No. is claimed by the respective parties with respect to their respective documents. In fact the exercise that should have been undertaken by the commissioner is to identify the properties with respect to the title deeds put forward by each of the parties.
14. The commissioner also says that he started measurement from a stone found in the place. It is significant to notice that commissioner has started the measurement not from the survey stone and it is not discernible from the records as to what is the basis for starting measurement from the position of the stone and -:9:- S.A.No.780 of 1998 what is the significance the stone found at the site.
15. Both the courts below were not justified in coming to the conclusion that since the three boundaries of the plaint schedule tally with the commissioner's report, preponderance of probabilities go in favour of the plaintiff. Courts below omitted to note that the plaint was amended to bring it in conformity with the commissioner's report. Necessarily therefore the boundaries will tally.
16. What is next relied on by the lower court is the production of tax receipts. Tax receipts produced by the plaintiff having paid tax before the filing of suit show that tax receipts are in respect of property comprised in Sy.No.126/1A only. Going by the commissioner's report, B1 plot is contained in Sy.No.132. Whether the plaintiff has any property in Sy.No.132/2 is also a matter to be determined. Further tax receipts cannot be taken as the sole basis for the finding of possession especially when both parties claimed property in the same survey No. and said Sy.No. has also a large extent of property. -:10:- S.A.No.780 of 1998
17. Both are armed with purchase certificates. There was no attempt from the side of the commissioner to identify the properties with respect to the purchase certificates also. The description in the property in the purchase certificate are also not looked into. It is seen that the defendants produced tax receipts at the appellate stage. Except for referring to the same no discussion is seen made by the lower appellate court regarding the veracity or genuineness or acceptability of those documents.
18. Suffice is to say that there has not been a proper identification of properties so as to determine the real issue involved in the case. The present commissioner's report and plan are of no help to resolve the controversy. Said commissioner's report and plan are set aside.
19. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the trial court with a direction to get the properties properly identified in accordance with law and in the light of what has been stated above. Parties are at -:11:- S.A.No.780 of 1998 liberty to adduce further evidence if they so choose. Parties shall appear before the trial court on 02.06.2012.
It is pointed out that a suit instituted by the defendants as O.S.No.13 of 2000 is pending before the same court and that has been stayed under Section 10 in view of the pendency of this appeal. It is only just and proper to direct the lower court to try the said suit also along with this suit so that conflict of decision can be avoided. The trial court may make every endeavour to dispose off the suit, as expeditiously as possible, at any rate, within a period of 6 months from the date of appearance of the parties. No costs.
P.BHAVADASAN, JUDGE kkj