Kerala High Court
The Manager Plantation Corporation Of ... vs Kunnathara Thekke Veettil Govindan on 26 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 26TH DAY OF JUNE 2024 / 5TH ASHADHA, 1946
RSA NO. 1177 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 08.08.2017 IN AS
NO.15 OF 2014 OF SUB COURT, HOSDRUG ARISING OUT OF THE
JUDGMENT AND DECREE DATED 31.10.2014 IN OS NO.60 OF 2011
OF MUNSIFF'S COURT, HOSDRUG
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 THE MANAGER,
PLANTATION CORPORATION OF KERALA LTD.
CHEEMENI ESTATE.
2 THE PLANTATION CORPORATION OF KERALA LTD.
KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADV SRI.RAJESH N., SC, PLANTATION CORPORATIO
RESPONDENT/SUPPLEMENTAL APPELLANT:
KUNNATHARA THEKKE VEETTIL GOVINDAN
AGED 69 YEARS, S/O.LATE K.T.C.A. AND LATE
C.K.KUNHIRAMAN, HINDU, RETIRED AEO, SREE
GOVINDAM, CHEEMENI, CHEEMENI VILLAGE,
HOSDURG TALUK, P.O.CHEEMENI, PIN-671 313,
KASARAGOD DISTRICT.
BY ADV SRI.M.SASINDRAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 14.06.2024, THE COURT ON 26.06.2024, DELIVERED THE
FOLLOWING:
RSA 1177/2017
2
C.PRATHEEP KUMAR, J.
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R.S.A.No.1177 of 2017
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Dated : 26th June, 2024
JUDGMENT
1. This Second Appeal has been preferred by the respondents in AS No.15/2014 on the file of Sub Court, Hosdurg, who are the defendants in OS. No.60 of 2011 on the file of the Munsiff Court, Hosdurg, reversing the judgment and decree of the trial court and decreeing the suit.
2. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.
3. The Original suit was filed seeking prohibitory injunction restraining the defendants from trespassing into plaint A schedule property or from destroying it's southern boundary or interfering with the peaceful possession and enjoyment of the said property by the plaintiff. During the pendency of the First Appeal, the original plaintiff, namely Chiri Amma died and the respondent herein was impleaded as her legal representative.
4. According to the plaintiff, her brother K.T. Govindan was in possession and enjoyment of 6 Acres of land in Re-survey RSA 1177/2017 3 No.260/1A1A1 in Cheemeni Village. On the death of K.T. Govindan, the property devolved upon his wife, Kana Madhavi and after the death of Kana Madhavi, the property devolved upon the plaintiff. K.T. Govindan got kuzhikanom right in respect of plaint A schedule property from the Janmi, George Thomas Kottukappally. It is contended that the District Collector, Kannur had prepared a list of tenants, who were in possession of properties situated in the above Survey number prior to 1964 as directed by the State Land Board. Now, the defendants who are southern property owners are attempting to interfere with the peaceful possession and enjoyment of plaintiff over the schedule property.
5. On the other hand, the defendants stoutly denied the claim of the plaintiff. According to them, the plaintiff was never the tenant of George Thomas or any other landlord in respect of the plaint schedule property, that the list prepared by the District Collector will not confer any right to the tenant over the said property, that during the sealing proceedings, the Government has taken huge extent of properties in Cheemeni Village and it was transferred to Plantation Corporation to raise cashew plants, as per order No.MS.741/77/RD dated 13.6.1977. It is contended that the property thus obtained by the defendant is known as Cheemeni Estate and that the property claimed by the plaintiff is part of the Cheememi Estate, which is in the possession and enjoyment of defendants. RSA 1177/2017 4
6. The trial Court found that the plaintiff failed to identify the property claimed by her as per the list prepared by the District Collector and dismissed the suit. However, the First Appellate Court reversed the finding of the trial court and decreed the suit. Aggrieved by the above judgment and decree of the First Appellate Court, the defendants preferred this second appeal, raising various contentions.
7. At the time of admission, this Court framed the following substantial questions of law:
"1. In a suit for injunction based on possession, is not the plaintiff bound to produce materials to prove that he was in possession of the property as on the date of suit ?
2. When it is revealed from the Commissioner's report that there is no property on the southern side of the plaint schedule property belonging to the defendant Corporation, was the lower appellate court justified in granting a decree against the Corporation ?
3. Can the cause of action pleaded in the plaint be true on the basis of the materials produced at the time of evidence ?"
8. Both sides were heard in detail on the above substantial questions of law.
9. One of the contentions raised by the learned counsel for the RSA 1177/2017 5 appellant/defendant is that the plaintiff failed to prove the identity of the property scheduled in the plaint. The specific contention of the plaintiff is that the properties lying on the southern side of the plaint schedule property belongs to the defendants. The plaintiff filed the suit on the allegation that the defendants are attempting to trespass along the southern side of plaint schedule property by demolishing its southern boundary. However, at the time of evidence, it is revealed that the defendants have no property on the southern side, abutting the plaint schedule property.
10. In Exhibit C1 report prepared by the Advocate Commissioner, deputed by the trial court it is reported that the defendants have no property abutting southern boundary of the plaint schedule property. Boundaries of the property ascertained by the Commissioner in Ext.C1 are entirely different from that mentioned in the plaint. Therefore, after the Commission Report was filed, the plaint was amended and boundaries in the plaint schedule were amended in tune with the boundaries of the property shown in Exhibit C1 report. When the additional second plaintiff was examined as PW1, he himself admitted that the defendants have no property on the southern side of the plaint schedule property.
11. At the time of evidence, according to PW1, the property lying RSA 1177/2017 6 along the southern side of the plaint schedule property is his own property, which he obtained as per a lease deed. Therefore, it is revealed that the claim of the plaintiff that the defendant's property situates on the southern side of the plaint schedule property and that they are attempting to trespass into the plaint schedule property through the southern boundary is absolutely false. On the other hand, since according to PW1 his own property is lying on the southern side of plaint schedule property, the cause of action pleaded by the plaintiff for filing the suit stands disproved.
12. At the time of arguments, the learned counsel for the plaintiff would argue that the property of the defendants situated on the western side of the plaint schedule property and it was only a mistake committed by PW1 while giving evidence. However, from Ext.C1, it can be seen that the property situated on the western side of the plaint schedule property shown in Ext.C1 situates beyond the western public road and also that the defendant's property is not abutting the property shown in Ext.C1 as the plaint schedule property. Since there is a public road in between the plaint schedule property, shown in Ext.C1 and the property in the possession of the defendants, there is no chance for the defendants to trespass into the plaint schedule property, as alleged.
13. Moreover, the boundaries of the plaint schedule property shown in RSA 1177/2017 7 the plaint before the amendment was entirely different from that after the amendment. In the unamended plaint, the southern boundary of the plaint schedule property is shown as the property in the possession of Plantation Corporation and K.T.Govindan. As per the amended plaint, the southern boundary is the property of K.T.Govindan, a property situated between the plaint schedule property and property of I.T. Park. As per the unamended plaint, Cheemeni - Payyannur road and property of Govindan, Kunjappan, P.P.Narayani and Babu situate on the west of the plaint schedule property. However, the western boundary was amended as Cheemeni - Payyannur road and property in the possession of Babu, Kumaran, Karthyayini, wife of Govindan. In the unamended plaint, northern boundary was shown as property in the possession of Govindan, Kunjappan and Babu. However, the northern boundary was amended as "property in the possession of Babu, Kumaran, Karthyayini, wife of Govindan, Narayani and burial ground of Yadavasabha.
14. The plaintiff amended the boundaries on the south, west and north of the plaint schedule property to correct them in tune with the boundaries noted by the Commissioner in Ext.C1 report. However, at the time of evidence, PW1 admitted that the property in his own possession is the property which situates on the southern side of the plaint schedule property. Therefore, it appears that, in the plaint, the plaintiff has RSA 1177/2017 8 suppressed the fact that the property of PW1 situates on the southern side of the plaint schedule property. At the same time, the plaintiffs claimed that the property of the defendants situate on its south and sought for an injunction alleging that the defendants attempted to trespass along the southern boundary of the plaint schedule property. Since now PW1 admitted that the defendants have no property on the southern side abutting the plaint schedule property, it is further revealed that the allegation in the plaint that the defendants have attempted to trespass into the plaint schedule property along the southern side is not correct.
15. Though the boundaries of the plaint schedule property as mentioned in the plaint schedule was amended, the pleading was not amended in tune with the amended plaint schedule. As per paragraph 7 of the plaint, even now, the property on the southern side of the plaint schedule property belongs to the defendants. In the proof affidavit of PW1 also, it is specifically stated that the defendants' property situates on the southern side of the plaint schedule property. In short, in the amended plaint, boundaries of the plaint schedule property given in the schedule and pleading are entirely different. It shows that the plaintiff has no idea about the 6 acres mentioned in Ext.A2 list of tenants prepared by the District Collector.
16. It is true that in Ext. A2, it is stated that K.T. Govindan is the RSA 1177/2017 9 tenant of 6 Acres of property. However, there is absolutely no evidence to prove the identity of the above 6 Acres. There is also no sketch attached to Ext.A2. The plaintiff examined PWs 2 to 4 to prove that the plaintiff is in possession and enjoyment of the plaint schedule property. However, none of them deposed before the court that the plaintiff is in possession and enjoyment of the plaint schedule property. Therefore, the evidence of PWs 2 to 4 is not at all useful to substantiate the plaint claim.
17. From the evidence of the Commissioner as DW1, it is revealed that he had identified the plaint schedule property without relying upon any authoritative documents. Though the Commissioner stated that at the time of inspection the plaintiff has shown some documents, they were not produced by him before the Court. The commissioner has not received the documents produced by the plaintiff in this case. From the documents produced in this case, the plaint schedule property could not be identified. It is also revealed that the property shown in Ext.C1 is rocky land, not suitable for cultivation. There is also no cultivation in the said property shown in Ext.C1. In the above circumstance, how the Commissioner identified the said property as the plaint schedule property is a mystery.
18. The Commissioner prepared a sketch of about 6 Acres of rocky RSA 1177/2017 10 land, from out of an extent of more than 3000 acres of property lying in the same survey subdivision, in the possession of the defendants. In the light of the evidence available, it is not possible to identify the property covered by Ext.A2. It is also not possible to conclude that the property identified in Ext.C1 is the property mentioned in Ext.A2. It was in the above context, the trial court found that the plaintiff failed to identify the plaint schedule property.
19. Admittedly, K.T.Govindan mentioned in Ext.A2 is not the additional 2nd plaintiff who was examined as PW1. The case of the plaintiff is that the above K.T.Govindan, who was in possession and enjoyment of the plaint schedule property died and on his death, the property devolved upon his wife Kana Madhavi. In paragraph 4 of the plaint it is pleaded that on the death of Kana Madhavi on 5.6.2005, the plaint schedule property devolved upon Chiri Amma, the original plaintiff, who is the sister of K.T.Govindan, as per the provisions of the Hindu Succession Act. The relevant portion of the pleading in paragraph 4 of the plaint is extracted below for easy reference :
"......The aforesaid Kana Madhavi died on 5.6.2005 and the property detailed in the schedule 'A' below devolved upon the plaintiff ChiriAmma who is the sister of the late Kunnanthara Thekke Veetil Govindan as per Hindu Succession Act since she RSA 1177/2017 11 has no issues. Thus the plaintiff is in absolute possession and enjoyment of the property detailed in schedule 'A' below."
20. Therefore, according to the plaintiff, she obtained the plaint schedule property being the sole legal heir of K.T.Govindan whose name finds a place in Ext.A2 list prepared by the District Collector. However, at the time of evidence, PW1 admitted that the above K.T.Govindan has other siblings also. If so, the claim of the plaintiff that she obtained absolute possession and enjoyment of the plaint schedule property by virtue of the provisions of the Hindu Succession Act, cannot be true. During the cross-examination of PW1, questions were asked about the legal heirs of K.T.Govindan and Kana Madhavi, to which he replied that there is no document to show the details of legal heirs of K.T.Govindan and Kana Madhavi.
21. According to PW1, when K.T.Govindan obtained the plaint schedule property from George Thomas, he was only five years old. He has not seen any documents including tax receipts relating to the property in the possession of K.T.Govindan. He also does not know the boundaries of the property in the possession and enjoyment of K.T.Govindan, as per the documents. He also admitted that the plaintiff has not paid any tax for the schedule property after 1974. He claimed that on the basis of Exts.A1 to A3, SM proceedings are pending before RSA 1177/2017 12 the Land Tribunal, Kasargod in Kanjangad. Therefore, this Court on 28.10.2023 called for the copies of the entire SM proceedings including the plan if any, showing six acres of property originally in the name of K.T.Govindan, Cheemeni in Survey No.260/1A1A1. Accordingly, the Land Tribunal has produced copies of the files in respect of SM 243/2012 and 242/2012. From the order of the Land Tribunal dated 26.4.2018 in SM 242/2012 it can be seen that the Revenue Inspector reported that 6 acres of property claimed by Chiri Amma was never possessed by her and that hence she is not entitled to get the land assigned under the provisions of the Kerala Land Reforms Act. Accordingly, the Land Tribunal dismissed her claim on 26.4.2018. In SM 243/2012, the additional plaintiff (PW1) claimed assignment of another 4.50 acres of land from the very same survey number. From the order of the Land Tribunal dated 26.4.2018 it appears that the above application was also dismissed for the very same reason that he was never in possession of the said property. It is true that against the above orders passed by the Land Tribunal in SM 243 and 242, PW1 has approached the Appellate Authority and as per order dated 17.3.2021, the Appellate Authority has decided to give one more opportunity to the plaintiff to prove his possession. Accordingly, the matter was remanded to the Land Tribunal for disposing those applications afresh. Though the RSA 1177/2017 13 above order was passed by the Appellate Authority as early as on 17.3.2021, its present position is not known.
22. From the above proceedings of the Land Tribunal, it can be seen that even before the Land Tribunal, the plaintiff and PW1 could not establish that they had ever possessed the plaint schedule property. The learned counsel for the plaintiff would contend that the said Revenue Inspector was on inimical terms with the plaintiff and that is why he had filed such a report against the plaintiff. However, on a perusal of the entire evidence on record, it appears that the plaintiff does not even know the exact lie and location of the plaint schedule property. That is why he could not even mention the correct boundaries of the said property in the plaint. Though the plaintiff claimed exclusive possession and enjoyment of the plaint schedule property by virtue of the provisions of the Hindu Succession Act, it appears to be not correct as deceased K.T.Govindan had other siblings also. Though the Commissioner identified an extent of six acres as the plaint schedule property from out of a larger extent, there is nothing to show that the above property is the one possessed by deceased K.T.Govindan as shown in Ext.A2.
23. In the above circumstances, the finding of the trial Court that the plaintiff has not succeeded in identifying the plaint schedule property is well founded and does not call for any interference. Therefore, the RSA 1177/2017 14 finding of the 1st Appellate Court that the plaintiff is in possession and enjoyment of the plaint schedule property and also that the plaint schedule property is correctly identified by the Commissioner are not in tune with the evidence on record and as such, the impugned judgment and decree of the 1st Appellate Court is liable to be set aside and that of the trial Court is liable to be restored. The substantial questions of law formulated are answered accordingly.
In the result, this Second Appeal is allowed with costs. The impugned judgment and decree of the 1st Appellate Court is set aside and that of the trial Court is restored.
Sd/-
C. Pratheep Kumar, Judge sou/Mrcs/18.6.