Kerala High Court
Bhavani vs Somasekharan on 18 February, 2011
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 17TH DAY OF JULY 2012/26TH ASHADHA 1934
RSA.NO. 253 OF 2006 (E)
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AS.32/1997 OF SECOND ADDITIONAL DISTRICT COURT, TRIVANDRUM
OS.3212/1989 OF THIRD ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM
APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 6:
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1. BHAVANI, D/O. KOCHUPARAVATHI,
CHARUVILAKATHU VEEDU, AMBALATHARA
CHOOZHAMPALA MUKKOLA, TRIVANDRUM (DIED).
2. VIJAYAMMA, D/O. BHAVANI, DO. DO.
3. SASIDHARAN, S/O. KOCHUKRISHNAN
SANTHI NIVAS, MANJAMPARA, MUKKOLA P.O.
TRIVANDRUM.
4. RAGHUNATHAN, S/O. KOCHUKRISHNAN,
KARIVEPPILA VILAKATHU VEEDU, KIZHAKKE MUKKOLA
MUKKOLA P.O., TRIVANDRUM.
5. SOBHANA SOMAN, D/O. CHELLAMMA,
MANGALASSERI VEEUD, VETTIKONAM ROAD, MUKKOLA
KACHANI P.O., TRIVANDRUM.
APPELLANTS 2 TO 5 ARE RECORDED AS THE LEGAL
REPRESENTATIVES OF DECEASED 1ST APPELLANT
BY ADV. SRI.G.S.REGHUNATH
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS/LRS. OF 1ST DEFENDANT:
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1. SOMASEKHARAN, S/O. DAMODHARAN,
THUSHARA, CHOOZHAMPALA, MUKKOLA P.O.
TRIVANDRUM.
R.S.A.No.253 of 2006
2. CHANDRAMATHI, D/O. THANKAMMA,
CHARUVILAKATHU VEEDU, AMBALATHRA, CHOOZHAMPALA
MUKKOLA P.O., TRIVANDRUM.
3. K. RAJAN, KARUVILA VEEDU, MUKOLA P.O.,
TRIVANDRUM-44.
ADDITIONAL RESPONDENT IMPLEADED:
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4. INDIRA, D/O. BHAVANI,
CHERUVILAKATHU VEEDU, AMBALATHARA,
CHOOLAMPALA MUKKOLA P.O.,
TRIVANDRUM.
APPELLANTS 2 TO ARE WHO ARE ALREADY ON THE PARTY
ARRAY ARE RECORDED AND ADDITIONAL 4TH RESPONDENT
IS IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED
1ST APPELLANT AS PER ORDER DATED 18.2.2011 ON
I.A. NO.2236 OF 2006.
BY ADV. SRI.M.R.ANANDAKUTTAN R1 & R2
BY ADV. SRI.K.RAJESH KANNAN R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.7.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.253 of 2006
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Dated this the 17th day of July, 2012
J U D G M E N T
This Second Appeal is brought by the defendants from the judgment and decree of learned Second Additional District Judge, Thiruvananthapuram in A.S. No.32 of 1997 confirming the judgment and decree of learned Third Additional Munsiff, Thiruvananthapuram in O.S. No.3212 of 1989.
2. Respondents are the legal representatives of the late Padmanabhan Velayudhan. Appellants and the deceased first defendant are the legal representatives of late Kochuparvathy, sister of Padmanabhan Velayudhan. The said Padmanabhan Velayudhan, Parameswaran, Krishnan, Kochappi and Kochuparvathy belonging to the same family effected partition of their family properties (as per Ext.B1, partition deed No.828 of 1109ME) as per which the 1.75 acres in Sy.No.1010 and other items belonging to the family were partitioned among them. Padmanabhan Velayudhan was allotted the A schedule, Parameswaran was allotted the B schedule, Krishnan was allotted the C schedule, Kochappi was allotted the D schedule and R.S.A. No. 253 of 2006 -: 2 :- Kochuparvathy was allotted the E schedule items in Ext.B1. The said items were acquired by the family as per the documents referred in Ext.B1, partition deed. Kochuparvathy was allowed to stay in the gate house (padippura) of the building that existed in the D schedule to Ext.B1 allotted to Kochappi. It was directed that after one year, Kochu Parvathy shall construct a house of her own and vacate the said gate house (padippura). As regards the puthuval land situated on the east of the A and E schedules to Ext.B1, certain directions were made in the partition deed. A 12 links wide way was provided along the middle of the said properties for access to the respective sharers from the road on the western side of Ext.B1, property.
3. The case of the respondents who claim under Padmanabhan Velayudhan to whom the A schedule items in Ext.B1 was allotted, is that as per permission granted (vide Ext.B1, partition deed) Kochuparvathy stayed in the gate house (padippura) in the D schedule in Ext.B1 for one year and thereafter, with the permission of Padmanabhan Velayudhan, was staying in the cudjan thatched house situated in the puthuval land towards east of the E schedule of Ext.B1 and R.S.A. No. 253 of 2006 -: 3 :- south of the way (12 links wide way through the middle of the property). In the meantime, Padmanabhan Velayudhan obtained assignment of the entire puthuval land (comprised in Sy.No.1010/63 on the east of A and E schedules of Ext.B1 (42 cents) and he thus became the owner in possession of that puthuval land. The puthuval land came to the ownership and possession of the respondents as legal representatives of the late Padmanabhan Velayudhan. The puthuval land comprised in Sy. No.1010/63 situated on the east of E schedule of Ext.B1 and south of the way is the 25 cents described as the plaint A schedule. The building situated in the plaint A schedule bearing door No.CP4/83 is the plaint B schedule. The E schedule allotted to Kochuparvathy in Ex.B1, partition deed is the plaint C schedule. Respondents allege that the appellants and the deceased 1st defendant who claim under Kochuparvathy constructed a building in the E schedule of Ext.B1 (plaint C schedule) encroaching into the plaint A schedule (25 cents of puthuval land). They claimed that they have terminated permission granted to the appellants and the deceased 1st defendant, the legal representatives of the late Kochuparvathy to R.S.A. No. 253 of 2006 -: 4 :- stay in the plaint B schedule building. As they did not vacate the plaint B schedule building, respondents filed the suit for a declaration of their title over plaint A and B schedules - the 25 cents of puthuval land in Sy. No.1010/63 and building No.CP4/83 situated therein, prohibitory injunction against appellants interfering with their possession of the plaint A schedule, mandatory injunction to direct the appellants and the deceased 1st defendant to vacate the plaint B schedule and remove that part of the building in the plaint C schedule which encroached into the plaint A schedule, prohibitory injunction against putting up structures in the plaint A schedule and for fixation of the boundary between the plaint A schedule and the plaint C schedule (E schedule of Ext.B1).
4. Appellants and the deceased first defendant contended that the 1.75 acres (registered holding) in Sy. No.1010 belonged to Ayyana Palpan and that he executed gift deed No.241 of 1083ME in favour of his children - Padmanabhan Velayudhan, Parameswaran, Krishnan, Kochappi and Kochuparvathy as regards the said 1.75 acres and other items. While so, Padmanabhan Velayudhan and others executed Ext.B1, R.S.A. No. 253 of 2006 -: 5 :- partition deed No.828 of 1109ME. On the east of the registered holding - the 1.75 acres (partitioned among Padmanabhan Velayudhan, Parameswaran, Kochappi and Kochuparvathy as per Ext.B1) is the puthuval land (42 cents) which was in the possession and enjoyment of the family before and at the time of Ext.B1. As per Ext.B1, partition deed the said puthuval land was also partitioned. Padmanabhan Velayudhan and Kochuparvathy who were allotted the A and E schedules (of Ext.B1) on the immediate west of the puthuval land were allotted the respective portions of the puthuval land abutting their registered holdings (A and E schedules of Ext.B1). It was directed in Ext.B1, partition deed that Padmanabhan Velayudhan and Kochuparvathy could get registry of the puthuval land (allotted to them as per Ext.B1) adjoining their registered holdings (A and E schedules of Ext.B1). Kochuparvathy, mother of the deceased 1st defendant constructed a building in that part of the puthuval land (plaint A schedule) adjacent to the E schedule allotted to her (as per Ext.B1) and was residing there since 1110ME onwards. That is the building referred to in the plaint B schedule and bearing door No.CP4/1983. Later by Ext.B4, settlement deed, the 25 cents of R.S.A. No. 253 of 2006 -: 6 :- puthuval land-plaint A schedule (along with certain other items belonging to the deceased Kochuparvathy) was settled among the legal heirs of Kochuparvathy. Deceased 1st defendant got assignment (as per Ext.B2, patta) of 11.500 cents of the said puthuval land while the 1st appellant-2nd defendant got assignment (as per Ext.B3, patta) of 11.500 cents (both, after the institution of the suit). They claimed that appellants and the deceased 1st defendant are in possession of plaint A schedule and that the assignment of plaint A schedule to Padmanabhan Velayudhan is invalid and void. According to them, the said assignment was obtained by Padmanabhan Velayudhan who was a Government servant then, fraudulently, without notice to Kochuparvathy and her legal representatives. They also contended that after obtaining permission from the appropriate authority they have constructed a building in the E schedule of Ext.B1 (plaint C schedule) and the puthuval land (plaint A schedule) adjoining plaint C schedule belonging to and in their possession.
5. Learned Munsiff held that Padmanabhan Velayudhan got title to the plaint A schedule as per Ext.A4, patta, that there R.S.A. No. 253 of 2006 -: 7 :- is no serious challenge to that assignment, there is no evidence to show that Kochuparvathy had constructed the plaint B schedule building and hence it must be accepted that Padmanabhan Velayudhan constructed the plaint B schedule building in the plaint A schedule. It was further held that the construction made by the appellants in the plaint C schedule (E schedule of Ext.B1) trespassed into a portion of plaint A schedule. Accordingly respondents were given reliefs as prayed for. That judgment and decree were challenged before the first appellate court but only to be confirmed. Hence this Second Appeal.
6. The following substantial questions of law are framed for a decision:
(a) Is the interpretation given by the lower court for Ext.B1 legal and valid?
(b) When the property included in Ext.B1 was held by the members of the Sub Tharawad of plaintiffs and defendants as their joint property, can the possession of Padmanabhan Velayudhan over plaint schedule property and the puduval adjoining R.S.A. No. 253 of 2006 -: 8 :- the same treated as his exclusive possession?
(c) What was the nature of possession of
Padmanabhan Velayudhan over plaint schedule
property and the puduval adjoining thereto before Ext.B1?
(d) Can Padmanabhan Velayudhan be in possession of puduval land adjoining E schedule in Ext.B1 in view of the recitals in Ext.B1 as stated by the lower court?
(e) In view of the recitals in Ext.B1, can Padmanabhan Velayudhan obtain patta regarding the puduval land adjoining E schedule property in Ext.B1?
(f) Is not Ext.A4, a fraud and invalid
document?
(g) If Ext.A4 is not executed by a competent
authority, can it be treated as a valid document conferring title on the plaintiff and their predecessor?
(h) Are the plaintiff entitled to canvas their position that Padmanabhan Velayudhan was in possession of plaint schedule property on R.S.A. No. 253 of 2006 -: 9 :- kuthakapattom in view of lack of such pleading in the plaint and their admissions in the plaint that he was in possession of the property under a partition deed?
(i) Even if Ext.A4 is a valid document will not the patta obtained by Padmanabhan Velayudhan regarding plaint schedule property enure to the benefit of E schedule property of Ext.B1?
(j) Is not the prayer for mandatory injunction hopelessly barred by limitation?
(k) Has not lower court perversely understood and interpreted the evidence in the case?
7. It is contended by the learned counsel for the appellants that findings entered by the courts below are perverse and erroneous, against the pleadings of the respondents, not supported by evidence or plea, against the evidence and hence a substantial question of law is involved. The learned counsel contended that the trial court proceeded on the wrong assumption that Padmanabhan Velayudhan got exclusive possession of the entire puthuval land (42 cents) including the R.S.A. No. 253 of 2006 -: 10 :- plaint A schedule (25 cents) as per Ext.B1, partition deed and that Ext.B1 also referred to that exclusive possession of the said Padmanabhan Velayudhan. It is further contended that the view taken by the learned Munsiff that the direction in Ext.B1 that the A and E schedule allottees under Ext.B1 can obtain assignment of the puthuval land (abutting the A and E schedules of Ext.B1) is only a qualified condition which did not stand in the way of Padmanabhan Velayudhan getting assignment of the entire puthuval land, is not correct. The learned counsel took objection to the observation made by the learned Munsiff that Ext.B1 says that the puthuval was registered in the name of Padmanabhan Velayudhan. Further contention that the learned counsel has advanced is that the view taken by the learned Munsiff that the appellants and the deceased 1st defendant had not seriously challenged Ext.A4 is not correct since in paragraph 29 of the written statement it is specifically contended that Ext.A4 is a fraudulent and sham document obtained by Padmanabhan Velayudhan who was a Government servant without the knowledge and consent of Kochuparvathy and her legal representatives. The learned counsel contended that the R.S.A. No. 253 of 2006 -: 11 :- finding entered by the learned Munsiff that there are no documents to show that Kochuparvathy had constructed the plaint B schedule building in the plaint A schedule is also not correct. The learned counsel pointed out that Exts.B9 to B12, B20 and B21 would show that plaint B schedule building stood assessed in the name of the late Kochuparvathy and the deceased 1st defendant and in the absence of other evidence it should be taken that the building was constructed by the late Kochuparvathy. It is argued that Ext.A4 assignment is invalid since as per the evidence of P.W.1 on behalf of the respondents, that assignment was obtained by Padmanabhan Velayudhan for the beneficial enjoyment of his registered holding in which case the assignment could have been made only by the Revenue Divisional Officer (for short, "the RDO") and that too, after his personal satisfaction that the assignment is indispensable for the beneficial enjoyment of the registered holding. It is pointed out that not only that there is no evidence to show that the R.D.O. had reached any such personal satisfaction but also, that Ext.A4 is issued by the Special Tahsildar, Land Assignment who was incompetent to grant assignment of the Government land for R.S.A. No. 253 of 2006 -: 12 :- beneficial enjoyment of the registered holding. Hence Ext.A4 is void. The learned counsel has invited my attention to the decision in Vareed v. Tahsildar (1980 KLT SN 35 [case No.80). It is argued that Exts.A1 to A3 cannot be accepted or acted upon. There is no averment in the plaint about Padmanabhan Velayudhan obtaining kuthakapattom right over any portion of the puthuval land. Exhibits A1 to A3 were not produced along with the plaint so that those documents could be taken as part of the pleadings. Exhibits A1 to A3 are not sufficient to show that the puthuval land was given to Padmanabhan Velayudhan on kuthakapattom right. At any rate, Exts.A1 to A4 should enure to the benefit of the late Kochuparvathy and her legal representatives in view of allotment of the puthuval land and the direction concerning obtaining assignment, in Ext.B1. The learned counsel, relying on Exts.B2 and B3 argued that though subsequent to the filing of the suit, the deceased 1st defendant and 1st appellant have obtained valid assignment of the plaint A schedule.
8. The learned counsel for the respondents contended that the recitals in Ext.B1 as to allotment of the puthuval land R.S.A. No. 253 of 2006 -: 13 :- is of no consequence and effect since the parties to Ext.B1 could not partition the puthuval land belonging to the Government. It is contended that the recitals in Ext.B1 would show that the late Padmanabhan Velayudhan was in exclusive possession and enjoyment of the puthuval land and hence any direction in Ext.B1 about the allottees of A and E schedules therein getting assignment of the puthuval land would not bind the late Padmanabhan Velayudhan and at any rate, the Government in granting assignment of the puthuval land to him. It is contended that the recitals in Ex.B1 are sufficient to show that the late Padmanabhan Velayudhan was in possession and enjoyment of the puthuval land. Exhibits A1 to A3 would show that the late Padmanabhan Velayudhan had obtained kuthakapattom right over the entire puthuval land. By Ext.A4, the Government have assigned the entire puthuval land to the late Padmanabhan Velayudhan. The civil court cannot sit in appeal over the correctness of Ext.A4 which is not so far challenged in any other proceeding. Mere non-compliance of the Rules, at any rate is not sufficient to discard Ex.A4. Reliance is placed on the decisions in Mathai Geevarghese R.S.A. No. 253 of 2006 -: 14 :- Kathanar v. State of Travancore-Cochi ([1954] 9 DLR TC 513) and Anjelose Presentation v. The Board of Revenue ([1960] ILR Kerala 334). Hence the civil court was bound to recognize Ext.A4 and declare title of the respondents in the plaint A schedule pursuant to their predecessor-in-interest (Padmanabhan Velayudhan) obtaining Ext.A4, assignment.
9. The learned counsel also argued that Exts.B2 and B3 cannot be taken into account. According to the learned counsel, since Ext.A4, assignment in favour of the late Padmanabhan Velayudhan stand and the respondents are entitled to its benefit, the Government could not have granted a fresh assignment of the very same puthuval land in favour of the deceased 1st defendant and the 1st appellant as per Exts.B2 and B3. It is argued that Exts.B2 and B3 are obtained after the institution of the suit and based on the decision of learned Munsiff on the application for temporary injunction. Respondents were not given notice of the said proceeding. At any rate, Exts.B2 and B3 do not concern the puthuval land comprised in Sy. No.1010/63 but it concerns the puthuval land comprised in Sy. No.1010/part. It is argued that Ext.X4 would show that the deceased 1st defendant R.S.A. No. 253 of 2006 -: 15 :- and 1st appellant had applied for only 9.500 cents each of puthuval land in Sy.No.1010/11 but they were assigned 11.500 cents each of puthuval land in Sy. No.1010/part. It is argued that there is no evidence to show that the late Kochuparvathy constructed the plaint B schedule building and hence the ownership of that building must go to the owner of plaint A schedule (the late Padmanabhan Velayudhan). The report and plan submitted by the Advocate Commissioner (Exts.C1, C1(a) and C1(b) would show that construction made by the appellants in the plaint C schedule (E schedule of Ext.B1) encroached into a portion of plaint A schedule. In the circumstances the trial and first appellate courts were justified in granting relief to the respondents. That involve no substantial question of law. Learned counsel prayed for a dismissal of the appeal.
10. There is no dispute regarding the division of the registered holdings as per Ext.B1, partition deed of the year 1109ME.
11. The 1.75 acres comprised in Sy. No.1010 was partitioned as per Ext.B1 in the following manner: R.S.A. No. 253 of 2006 -: 16 :-
W E Schedule D Schedule 12 A Schedule B Schedule l
12 cents to 12 cents to 11 cents to 11 cents to i Kochu- Kochappi n Padmanabhan Parameswaran k parvathy Velayudhan s N w S D Schedule B Schedule i 40 cents d 26 cents e to Kochappi to Parameswaran E Schedule w A Schedule a 35 cents to y 26 cents to Kochuparvathy Padmanabhan Velayudhan Puthuval Puthuval E (The diagram does not show the exact shape of boundaries)
12. It is a not disputed that the total extent of registered holding in Sy. No.1010 belonging to the family was 1.75 acres and almost through the middle of that registered holding, parties to Ext.B1 provided a 12 links wide way originating from R.S.A. No. 253 of 2006 -: 17 :- the pubic road on the western side. It is excluding the 12 links wide way that the registered holding in Sy. No.1010 was partitioned among Padmanabhan Velayudhan. Parameswaran, Kochappi and Kochuparvathy (as A, B, D and E schedules as shown in the chart above). The puthuval land, total extent of which parties do not dispute is 42 cents is situated on the east of the A and E schedules of Ext.B1 and abutting the said registered holdings (shown in the chart, above). Though appellants and the deceased 1st defendant claimed that the 12 links wide way was provided through the middle of the puthuval land also, that is disputed by the respondents. Exhibits C1, C1(a) and C1(b) show that the 12 links wide way was provided through the puthuval land as well. The Advocate Commissioner has reported in Ext.C1 that on the north and south of the 12 links wide way passing through the puthuval land (42 cents), there are stone walls bounding the said way.
13. In Ext.C1(b), the Advocate Commissioner has identified the registered holding in Sy.1010 and the puthuval land on the eastern side. Plaint A schedule (25 cents out of the 42 cents of puthuval land) is marked by the Advocate R.S.A. No. 253 of 2006 -: 18 :- Commissioner in Ext.C1(b) as "CDEFQO" plot measuring 25 cents (10.11 Ares).
14. Exhibit A1 is a notice No.15636/1115ME (referring to kuthakapattom file No.44) issued to the late Padmanabhan Velayudhan. There, it is stated that it is ordered to lease out the 42 cents in Sy. No.1010/63 in favour of the said Padmanabhan Velayudhan for a period of three years (from 1115 to 1117ME) and hence Padmanabhan Velayudhan has to pay the consideration stated therein within a week of receipt of that notice and obtain the grant. It is further directed in that notice that if the consideration was not paid as aforesaid, the puthuval land will be auctioned. Exhibit A2 is the chalan receipt dated 21.12.1116ME for remittance of rent for the period from 1115 to 1117ME. Exhibit A3 is the chalan receipt whereby remittance was made for the puramboke in in Sy. No.1010/63. In Ext.A3, the nature of the grant is stated as (permanent lease).
15 Exhibit A4 is the patta dated 10.11.1969 (issued under the Land Assignment Act) to the late Padmanabhan Velayudhan concerning the 42 cents in Sy. No.1010/63. The patta is seen issued by the Special Tahsildar, Land Assignment. R.S.A. No. 253 of 2006 -: 19 :- Appended to the patta, there is a notice dated 28.10.1969 wherein it is stated that the land assignment committee in its meeting dated (nil), on the application of the late Padmanabhan Velayudhan decided to assign to him the 42 cents in Sy.No.1010/63 and hence he is to pay the consideration within seven days. Exhibit A5 is the receipt dated 06.12.1969 for payment of the amount (allegedly as directed in the notice appended to Ext.A4).
16. As against Exts.A1 to A4 (and other documents based on Ext.A14), appellants rely on Exts.B1 to B4 and other documents. Exhibit B1 is partition deed No.828 of 1109 executed between the predecessors-in-interest of the parties hereto and others. It is stated in Ext.B1 that Kochuparvathy is allowed to stay in the gate house (padippura) in the D schedule of Ext.B1 allotted to Kochappy without consideration for a period of one year and that on the expiry of the said one year, she shall shift residence and vacate the said gate house.
17. Exhibits B2 and B3 are the pattas dated 30.09.1993 obtained by the deceased 1st defendant and the 1st appellant during the pendency of the suit. It concern the puthuval land R.S.A. No. 253 of 2006 -: 20 :- extending to 11.500 cents each in Sy. No.1010/part. Exhibits X3 and X4 are the files concerning that assignment. Exhibit B4 is a copy of settlement deed No.3727/1968 executed by the late Kochuparvathy in favour of her children including the deceased 1st defendant. The settlement as per Exhibit B4 is in respect of that portion of the puthuval land (plaint A schedule) abutting the E schedule of Ext.B1, the building situated therein and the registered holdings belonging to the late Kochuparvathy. It is stated in Ext.B4 that apart from the registered holding the late Kochuparvathy got as per Ext.B1, the puthuval land adjoining the land in Sy. No.1010 (E schedule of Ext.B1) was allotted to her (in Ext.B1, partition deed), she is in possession and enjoyment of that part of the puthuval land, constructed a house and is residing therein.
18. So far as Exts.A1 to A3 are concerned, I must notice that there is not even a whisper of those documents in the plaint. There is no averment in the plaint that the late Padmanabhan Velayudhan obtained kuthakapattom right over any portion of the puthuval land. Exhibits A1 to A3 are not produced along with the plaint. Hence those documents could not be taken as part of the R.S.A. No. 253 of 2006 -: 21 :- pleadings.
19. Exhibit A1 (of the year, 1115ME) is only a notice to the late Padmanabhan Velayudhan. It states that it is ordered to lease out the 42 cents in Sy.No.1010/63 for three years from 1115 to 1117 and hence the late Padmanabhan Velayudhan is to pay the consideration within a week of receipt of the notice (Ext.A1) failing which the property will be auctioned. A copy of the order (if any) granting the lease is not produced. The payment (allegedly) made as per Ext.A2, chalan receipt dated 12.12.1116 could not be within one week from the date of receipt of Ext.A1 which is of the year, 1115ME. The grant, if any to the late Padmanabhan Velayudhan is not produced. It is not clear whether the authorities concerned had perused Ext.B1 before (allegedly) deciding to grant lease of the entire 42 cents to the late Padmanabhan Velayudhan. As per the Rules framed under the Land Assignment Regulation 111 of 1097 which was in force at the time of Ext.A1, the Tahsildar had to be satisfied that the applicant (for kuthakapattom) was a 'bona fide occupant' (if he were in occupation of the Government land as claimed in this case). As per Illustration II, if the intention was to exclude others R.S.A. No. 253 of 2006 -: 22 :- from the land and get the land registered in his name, he could not be treated as a 'bona fide occupant'. Had the late Padmanabhan Velayudhan produced Ext.B1 for perusal of the authorities, he would not have got lease of the entire 42 cents in view of the recitals and directions therein which, though not binding on the Government, bound the parties to it, indicated that Padmanabhan Velayudhan had no possession of the entire 42 cents and he also had agreed to the late Kochuparvathy, the E schedule allottee of Ext.B1, paying the ground rent, etc., and taking assignment of half of the puthuval land. The reasonable and probable inference is that while the late Padmanabhan Velayudhan applied (if it is so) for lease of the entire 42 cents of puthuval land, he suppressed Ext.B1 from the notice of the authorities concerned and claimed to be in possession of the entire 42 cents.
20. Moreover, if in Exts.A1 and A2 reference is made to the grant of kuthakapattom to the late Padmanabhan Velayudhan for a period of three years which should expire by 1117, in Ext.A3, reference is made to (permanent lease) over the puthuval land. No document is produced by the respondents R.S.A. No. 253 of 2006 -: 23 :- to show that the late Padmanabhan Velayudhan was granted (permanent lease) over any portion of the puthuval land. Hence at any rate the (alleged) lease cannot extend beyond 1117ME. Exhibits A1 to A3 cannot in the circumstances be accepted or acted upon.
21. The registered holding in Sy. No.1010 which belonged to the family had a total extent of 1.75 acres (including the 12 links wide way through the middle of that property referred in Ext.B1). The extent of puthuval land on the east of that registered holding is 42 cents (including the 12 links wide way through the puthuval land also). Thus the total extent came to 2.17 acres. In the plaint it is averred that the plaint A and C schedules (25 cents of puthuval land and the 35 cents of registered holding allotted as E schedule of Ext.B1 to the late Kochuparvathy) formed part of the 2.17 acres in Sy. No.1010 and that it was in the possession of the family of respondents (as well as the appellants). While so, there was a partition in the family (there is no specific reference to Ext.B1 in the plaint but it is obvious that the reference is to Ext.B1) as per which the 42 cents of puthuval land was allotted to the late Padmanabhan R.S.A. No. 253 of 2006 -: 24 :- Velayudhan and thus he was in exclusive possession and enjoyment of the 42 cents (the entire puthuval land). It is further averred in the plaint that on the basis of that exclusive possession, the late Padmanabhan Velayudhan obtained assignment of the 42 cents as per Ext.A4.
22. Thus as per averments in the plaint it is clear that even according to the respondents the entire puthuval land of 42 cents was in the possession and enjoyment of the family and not in the exclusive possession of the late Padmanabhan Velayudhan at the time of Ext.B1, partition. The said statement in the plaint as to the joint possession of the entire puthuval land is also justified since in Ext.B1, it is stated, after referring to the registered holdings the family had as per the documents referred to therein that:
"
. "
(we have been keeping in common and enjoying the rest of the properties) R.S.A. No. 253 of 2006 -: 25 :- The said recital should apply to the puthuval lands. Apart from the puthuval land in question (Sy. No.1010/63) the family had also in its possession another item of puthuval land comprised in Sy. No.803.
23. As per the averments in the plaint, respondents attributed exclusive possession of the entire 42 cents to the late Padmanabhan Velayudhan by Ext.B1, partition deed. But going by Ext.B1, partition deed, the said version of the respondents cannot be accepted. After allotment of A to E schedules (the registered holdings - A schedule to Padmanabhan Velayudhan and E schedule to Kochu Parvathy respectively) it is recited in Ext.B1:
", , R.S.A. No. 253 of 2006 -: 26 :- ........"
("the eastern portion of A and E schedules is the puthuval concerning which a release is made in favour of the 1st party and as it is convenient for the A, E schedule allottees to annex it to their respective schedules, they shall remit the ground rent, etc., and get assignment and patta for one half each...") (it is admitted that the A and E schedule allottees are Padmanabhan Velayudhan and Kochuparvathy, respectively, party No.1 in Ext.B1 is the said Padmanabhan Velayudhan and the puthuval land referred to is the 42 cents on the east of A and E schedules - registered holdings).
The above recitals in Ext.B1 and as rightly pleaded in the plaint show that the 42 cents of puthuval land was lying adjacent to the registered holding, was kept in common in joint possession and R.S.A. No. 253 of 2006 -: 27 :- enjoyment of the family and permitted the allottees of A and E schedules to pay ground rent, etc., for half each of the puthuval land and get assignment and patta. Exhibit B1 does not indicate, either that the 42 cents of puthuval land was or given into the exclusive possession of the late Padmanabhan Velayudhan or that it was registered in his name. Even Exts.A1 to A3 are of the years 1115 and 1116ME. Exhibit A4 is of the year, 1969 but Ext.B1 is of the year, 1109ME.
24. I have extracted from Ext.B1, the relevant portions as to possession of properties other than the registered holdings as per the documents of title referred to therein. It is true it is stated in Ext.B1 that concerning the puthuval land adjoining the A and E schedules of Ext.B1, it is "released" ( ) to the late Padmanabhan Velayudhan, party No.1 in Ext.B1. Apart from both sides giving their own interpretation of the said expression, no evidence is produced by either side to show what was meant by the said expression. The further recitals in Ext.B1 that the puthuval land adjoining the A and E schedules of Ext.B1 is allotted to the late Padmanabhan Velayudhan and the late Kochuparvathy who were directed to pay the ground rent, R.S.A. No. 253 of 2006 -: 28 :- etc., and get assignment and patta do not persuade me to think that the expression "released" meant that the entire puthuval land on the east of A and E schedules of Ext.B1 was exclusively given to the late Padmanabhan Velayudhan. For, if it were so, Ext.B1 would not have provided that the allottees of A and E schedules (Padmanabhan Velayudhan and Kochuparvathy, respectively) shall pay the ground rent, etc., get assignment and obtain patta for half each of the puthuval land adjoining the A and E schedules for the convenient enjoyment of the A and E schedules in Ext.B1, the registered holding.
25. No doubt the puthuval land did not belong to the family and hence by Ext.B1, the parties to it could not confer or extinguish title over the puthuval land. Exhibit B1 was not binding on the Government in the matter of its assignment. But as between the parties to Ext.B1, I am inclined to think that the recitals in Ext.B1 are binding. Hence the claim of the respondents that the late Padmanabhan Velayudhan, their predecessor-in- interest got exclusive possession of the entire 42 cents of puthuval land as per Ext.B1 cannot be accepted. That claim has to fail.
R.S.A. No. 253 of 2006 -: 29 :-
26. So far as Ext.A4 is concerned, the notice dated 28.10.1969 appended to Ext.A4, dated 10.11.1969 states that the Land Assignment Committee in its meeting dated nil decided to assign the 42 cents in Sy. No.1010/63 to the late Padmanabhan Velayudhan. The notice does not mention the date of the meeting (if any). A copy of the decision (if any) taken in the meeting (if any) is not available. The back file concerning Ext.A4 is not before court. Respondents filed an application to summon it and there was an order. But the file was not forthcoming. Respondents, for whatever reason it be, did not pursue their attempt. It is therefore not in evidence whether any such meeting was held, if so, when and whether any such decision was taken?
27. P.W.1 has given evidence that the said assignment was for the beneficial enjoyment of the registered holding the late Padmanabhan Velayudhan had (A schedule of Ext.B1). As on the date of Ext.A4 (10.11.1969), the Kerala Land Assignment Rules, 1964 (for short, "the Rules") was in force. As per Rule 5 of the said Rules (as it stood after 1966) the extent of land that could be registered in favour of a single family for personal R.S.A. No. 253 of 2006 -: 30 :- cultivation by members of the family could not, ordinarily exceed, in the case of unoccupied lands, more than fifty cents of land, whether wet or dry in the plains and not more than one acre of wet or dry lands in hilly tract. In the case of lands held on lease whether current or time expired or by way of encroachment not considered objectionable, the lessee or the encroacher as the case may be will be eligible for assignment of more than 50 cents of land. Rule 6(1) deals with the Government land that could be registered in favour of a family as house site. The said provision has no application in this case since the assignment as per Ext.A4, according to the respondents is not in favour of a family and as P.W1 admits, was not as house site but for the beneficial enjoyment of the registered holding. Hence sub-rule (2) of Rule 6 of the Rules applies to this case. The said provision says that the extent of the Government land that may be granted on registry when the same is indispensably required for the beneficial enjoyment of the adjoining registered holdings shall not (with effect from 30.12.1967) exceed, in the case of one registered holding, 15 cents (while by Ext.A4, the late Padmanabhan Velayudhan claims right over 42 cents). The Note R.S.A. No. 253 of 2006 -: 31 :- appended to sub-rule (2) of Rule 6 referred above as it stood with effect from 11.10.1966 states that the authority competent to assign the land for beneficial enjoyment shall be the R.D.O. and that he may pass order of assignment in such cases only after personally satisfying himself that the land is absolutely necessary for the purpose of beneficial enjoyment of the registered holding. In this case, Ext.A4, patta is issued by the Special Tahsildar, Land Assignment. Since the assignment as stated by P.W.1 was for beneficial enjoyment of the registered holding, the Special Tahsildar was not competent to grant the assignment. Only the R.D.O. could grant the assignment. Exhibit A4, patta is issued by an authority who was incompetent to do so and subordinate to the authority competent to grant it as per the Rules. That is not a mere irregularity arising from non-compliance of a Rule. It goes to the root of the authority to assign the land. There is no evidence that the competent authority (the R.D.O.) had arrived at any personal satisfaction that the puthuval land was indispensably necessary for the beneficial enjoyment of the registered holding of the late Padmanabhan Velayudhan adjoining the puthuval land. As per Ext.B1, Padmanabhan Velayudhan had no registered R.S.A. No. 253 of 2006 -: 32 :- holding adjoining plaint A schedule (the puthuval land on the east of E schedule of Ext.B1). On the other hand, the allotment of the registered holding, E schedule of Ext.B1 to the late Kochuparvathy shows that the puthuval land adjoining the E schedule of Ext.B1 (plaint C schedule) on its east was not at all required for the beneficial enjoyment of A schedule of Ext.B1 allotted to the late Padmanabhan Velayudhan, not to say about that part of the puthuval land (plaint A schedule) on the east of E schedule of Ext.B1 (plaint C schedule) not being indispensably necessary for the late Padmanabhan Velayudhan. If beneficial enjoyment were the criterion and if the authority concerned had perused Ext.B1, assignment of the 25 cents of puthuval land (plaint A schedule) should have been to the late Kochparvathy. Of course that is a matter which the Government had to decide at the first instance. Reason persuades me to think that while obtaining the assignment, the late Padmanabhan Velayudhan had not brought Ext.B1 to the notice of the authorities. Suppression of a relevant document amounts to 'fraud'. I found that Ext.A4 is invalid as it is issued by an incompetent authority and without the competent authority entering the personal satisfaction. It is within the R.S.A. No. 253 of 2006 -: 33 :- power of the civil court to hold so even in collateral proceedings. A void document is not required to be separately challenged or declared void.
28. There is also no material to hold that any notice was given to the late Kochuparvathy on the application (if any) made by the late Padmanabhan Velayudhan for assignment of the 42 cents of puthuval land. The notice issued to the late Padmanabhan Velayudhan (after allegedly deciding to assign the land) appended to Ext.A4 is dated 28.10.1969. On 10.11.1969, Ext.A4 is issued. Exhibit A5 is a receipt dated 06.02.1969 for payment under the head 'k.p.' (meaning, kuthakapattom). Exhibit B4, settlement deed No.3727 of 1969 refers to a house in the 25 cents of puthuval land (plaint A schedule) but there is no mention in Ext.A4 to that house. Exhibit A4 thus comes in suspicious circumstances as well, apart from its invalidity I have stated above.
29. No doubt, Rule 8(3) of the Rules provided for cancellation of the assignment. But that did not stand in the way of the civil court holding that Ext.A4 is invalid for the reason that it is issued by an incompetent authority and without entering the R.S.A. No. 253 of 2006 -: 34 :- personal satisfaction provided in Rule 6 of the Rules which alone gives authority for assignment. In the circumstances no weight can be attached to Ext.A4, assignment in favour of the late Padmanabhan Velayudhan. As such, it is not necessary to consider whether Ext.A4 would enure to the benefit of the appellants also.
30. The other documents which the respondents rely are all on and after 10.10.1982 and based on Ext.A4, assignment and hence those documents to the extent it pertains to the plaint A schedule are of no consequence.
31. P.W.4 is the maternal uncle of the respondents, examined to show that late Padmanabhan Velayudhan had 42 cents of puthuval land in his possession at the time of Ext.B1 and that there was then a cudjan thatched house in the said 42 cents. He stated that after Padmanabhan Velayudhan, his legal representatives are in possession of the 42 cents. In cross- examination he stated that the 12 links wide way extended upto the puthuval land (while Exts.C1 to C1(b) show that it extended upto the eastern side of the puthuval). The witness also stated that Ext.B1 provided that the respective allottees of A R.S.A. No. 253 of 2006 -: 35 :- and E schedules (of Ext.B1) shall get assignment of the puthuval land and If he had earlier stated (in his evidence) that the property (puthuval land) was in the exclusive possession of the late Padmanabhan Velayudhan, that is not correct. In re- examination he was made to say that during the time of Ext.B1, joint possession of the parties thereto was only regarding the registered holding comprised in Sy. No.1010/11. The above version of P.W.4 in the light of the discussion I have made above, cannot be accepted.
32. On the other hand appellants rely on Exts.B2 to B4. Exhibit B4 is the settlement deed No.3727 of 1968 executed by the later Kochuparvathy. She has dealt with the 25 cents of puthuval land (plaint A schedule) lying adjacent to the E schedule allotted to her as per Ext.B1 as if she got exclusive possession of it as per Ext.B1. It refers to her constructing a house in the said 25 cents (plaint A schedule) and residing there. Exhibit B4 is in tune with the division and allotment made as regards the puthuval land as per Ext.B1.
33. Exhibits B2 and B3, pattas are obtained by the deceased 1st defendant and the 1st appellant pending the suit. It R.S.A. No. 253 of 2006 -: 36 :- is relevant to note from Ext.X4 that though the deceased 1st defendant and the 1st appellant applied for assignment of 9.500 cents each of puthuval land in Sy. No.1010/11, what is granted to them as per Exts.B2 and B3 is 11.500 cents each in Sy. No.1010/part!
34. There is a dispute raised by the appellants as to the survey sub division of the puthuval land - according to them it is not Sy. No.1010/63 but it is Sy. No.1010/part. Exhibit X1 is a photocopy of the survey plan obtained from the department concerned. There, the puthuval land abutting the A and E schedules in Ext.B1 on its east is shown as comprised in Sy. No.1010/63
35. The learned counsel for the appellants has contended that Ext.X1 cannot be relied upon since its original is not before court and as it is not authoritative. P.W.3, the Tahsildar proved Ext.X1. He stated that Ext.X1 is a certified photocopy of the survey plan. He also stated that the puthuval land is comprised in Sy. No.1010/63 as per Ext.X1 and is situated on the east of the registered holding in Sy. No.1010/1 (1.75 acres). He further stated that the original of Ext.X1 is in a damaged condition and R.S.A. No. 253 of 2006 -: 37 :- hence is not removable. Learned Munsiff directed P.W.3 to produce the original and his further examination was adjourned. Accordingly, on the adjourned day P.W.3 produced the original. That is marked as Ext.X1(a). D.W.6 examined by the appellants also stated that Ext.X1 is issued from his office and that Sy.No.1010/63 is on the east of Sy.No.1010/1 (i.e., the registered holding). There is no good and valid reason to discard Ext.X1). That the puthuval land had a sub division as '63' is clear from Exts.A1 to A4 as well. P.W.3, the Surveyor who assisted the Advocate Commissioner in preparing Ext.C1(a) and C1(b) has given evidence that the puthuval land on the east of the registered holding (Sy. No.1010/1) is comprised in Sy. No.1010/63. Thus there is sufficient and reliable evidence to show that the puthuval land on the east of the registered holding (A and E schedules of Ext.B1) is comprised in Sy. No.1010/63.
36. Exhibits B2 and B3 are in respect of the puthuval land in Sy. No.1010/part and concerns 11.500 cents each as against the claim of the deceased 1st defendant and the 1st appellant for assignment of 9.500 cents each in Sy.No.1010/11. It is obtained pending the suit. For the reasons above stated I am R.S.A. No. 253 of 2006 -: 38 :- not inclined to attach any weight to Ext.B2 and B3.
37. It is seen from the judgment of the learned Munsiff that he has proceeded on the basis that the late Padmanabhan Velayudhan got the puthuval land as per Ext.B1 and Ext.B1 also recited so. The said finding of the learned Munsiff is patently erroneous and goes against the recitals in Ext.B1. Nor was learned Munsiff correct in holding that the direction in Ext.B1 that the A and E schedule allottees (the late Padmanabhan Velayudhan and the late Kochu Parvathy) shall pay ground rent, etc., and obtain assignment of that portion of puthuval land adjoining A and E schedules is a only a qualified condition. It is an allotment though may not be binding on the Government but binding the parties to Ext.B1. Learned Munsiff was also not correct in holding that Ext.B1 recited that the puthuval land is registered in the name of the late Padmanabhan Velayudhan. Further observation that Ext.A4 was not seriously challenged by the appellants is not correct since in paragraph 29 of the written statement it is specifically contended that Ext.A4 is fraudulently obtained and is a sham document and the entire attack is against Ext.A4. The first appellate court without much difficulty has R.S.A. No. 253 of 2006 -: 39 :- accepted the wrong assumptions and reasoning made by the learned Munsiff.
38. In the light of the averments in the plaint, Exts.B1 and B4 and the circumstances stated above, I hold that the late Padmanabhan Velayudhan had no exclusive possession of the puthuval land at the time of, before or after Ext.B1, that the puthuval land was in the possession and enjoyment of the family and as directed in Ext.B1, the allottees of A and E schedules in Ext.B1 (the late Padmanabhan Velayudhan and the late Kochuparvathy) were to pay ground rent, etc., and get assignment and patta for the respective portions of the puthuval land (in Sy. No.1010/63) adjoining the A and E schedules of Ext.B1 for beneficial enjoyment of the said registered holdings. I also hold that Ext.A4 is void for the reasons above stated and that Exts.B2 and B3 cannot affect the plaint A schedule or bind the respondents.
39. The next dispute is concerning the ownership of plaint B schedule building bearing door No.CP4/83 and situated in the plaint A schedule. According to the respondents, the said building was constructed by the late Padmanabhan Velayudhan in R.S.A. No. 253 of 2006 -: 40 :- the plaint A schedule (puthuval land adjoining the E schedule of Ext.B1 on its eastern side).
40. Exhibit B1 permitted the late Kochu Parvathy to stay for one year in the gate house (padippura) in the D schedule of Ext.B1 allotted to Kochappi. She was to vacate that building on the expiry of the said one year. According to the respondents, the late Kochuparvathy stayed in the gate house (padippura) for one year and later, with permission of the late Padmanabhan Velayudhan shifted her residence to the cudjan thatched house in the plaint A schedule (puthuval land on the eastern side of E schedule of Ext.B1). It is relevant to note that even before Ext.A4 dated 10.11.1969 and the registered documents (based on Ext.A4) relied on by the respondents, the late Kochuparvathy had executed Ext.B4, settlement deed No.3727 of 1968 on 02.11.1968 (wherein she claimed that she is in possession of that part of the puthuval land - plaint A schedule on the east of E schedule of Ext.B1 and settled that puthuval land to the allottees under Ext.B4). How far that settlement as regards the puthuval land will bind the Government is a different matter. But, Ext.B4 shows that the late Kochuparvathy was exercising R.S.A. No. 253 of 2006 -: 41 :- exclusive possession of plaint A and B schedules even as on 02.11.1961 (much prior to Ext.A4 dated 10.11.1969 which does not even mention the building) which is a circumstance in favour of the appellants.
41. True that the puthuval land in Sy. No.1010/63 is not scheduled in Ext.B1. But there is no reference in Ext.B1 that there was any cudjan thatched house in any portion of the puthuval land at the time of Ext.B1. Moreover, if there were any cudjan thatched house situated in the plaint A schedule (that part of the puthuval land on the east of E schedule of Ext.B1) at the time of Ext.B1, there was no need or occasion for Kochuparvathy to seek permission to stay in the gate house (padippura) situated in the D schedule allotted to Kochappi, since Kochuparvathy was allowed to get assignment of the plaint A schedule (that part of puthuval land on the east of E schedule of Ext.B1). If there were a house in existence in that part of the puthuval land, she could have very well stayed in that cudjan thatched house rather than her getting permission from the allottee of D schedule in Ext.B1 to stay in the 'gate house' (padippura) for one year and after one year, shift to the R.S.A. No. 253 of 2006 -: 42 :- cudjan thatched house in that part of the puthuval land. No evidence is let in by the respondents to show that at the time of Ext.B1, there was any house in existence in the plaint A schedule. It is relevant to note that in Exts.A1 to A4 also there is no reference to any building.
42. On the other hand in Ext.B4, settlement deed dated 02.11.1968 there is reference to the house in the plaint A schedule (that part of the puthuval land on the east of E schedule of Ext.B1). Hence it is clear that the house in the plaint A schedule came into existence only after Ext.B1 of the year, 1109ME and prior to 1968 when Ext.B4 was executed.
43. Exhibit B4 states that the late Kochu Parvathy constructed the building in the plaint A schedule. There is no reason why an incorrect recital in that way should be made by her in Ext.B4.
44. Exhibit B9 is the building tax receipt dated 18.02.1996 concerning building No.CP4/86. Exhibit B10 is the building tax receipt dated 09.07.1996. Exhibit B20 is the building tax receipt dated 02.03.1979 concerning building No.CP4/51 for 1978-79. Exhibit B21, building tax receipt is dated 03.03.1989 R.S.A. No. 253 of 2006 -: 43 :- and concerning building No.CP4/.83. In Ext.B20, reference is to the late Kochuparvathy while in Exts.B9, B10 and B20 reference is to the deceased 1st defendant.
45. D.W5 is a Panchayath official. He produced the register relating to the assessment of building No.CP4/86 (referred to in Exts.B9 and B10) and stated that the building was assessed in the name of the deceased 1st defendant. It was a cudjan thatched building and its previous number was CP4/83 (referred to in the plaint A and B schedules and Ext.B21). The previous number of CP4/83 was CP4/51 (referred to in Ext.B20) and that building stood assessed in the name of the late Kochuparvathy. The assessment until 1988 was in the name of the late Kochuparvathy and thereafter, was in the name of the deceased 1st defendant.
46. Under Rule 3 of the Kerala Panchayaths (Building Tax) Rules, 1963 for the purpose of levy of building tax under Sec.68 of the Kerala Panchayaths Act, every building shall be assessed together with its appurtenant structures unless the owner of the appurtenances is a different person from the owner of the building. There is no mention of any building in the R.S.A. No. 253 of 2006 -: 44 :- puthuval land either in Ext.B1 or Exts.A1 to A4. No reliable evidence is forthcoming to show that the building (plaint B schedule) was constructed by the late Padmanabhan Velayudhan. There is also no possibility for that in view of the allotment of the puthuval land on the east of E schedule of Ext.B1 to Kochuparvathy as per Ext.B1. The earliest document referring to the building is Ext.B4 dated 02.11.1968 executed by the late Kochuparvathy where she has claimed that she has constructed the building in that part of the puthuval land (25 cents) towards east of the E schedule of Ext.B1. I must also notice the version of P.W1 that the assignment under Ext.A4 was for beneficial enjoyment of the registered holding (and not as if it was a house site). In the circumstances and reading Exts.B1, B4, B9, B10, B20 and B21 and in the absence of better evidence, preponderance of probability is in favour of the truth of contention of the appellants that the building was constructed by the late Kochuparvathy. If that be so, the contention that respondents are the owners of the plaint B schedule building cannot be accepted. Finding of the trial and first appellate courts to the contrary is erroneous and is to be reversed. R.S.A. No. 253 of 2006 -: 45 :-
47. The above discussion leads me to the following conclusions:
(i) At the time or before Ext.B1, partition
deed No.828 of 1109ME was executed, the late
Padmanabhan Velayudhan had no exclusive
possession of the puthuval land in Sy. No.1010/63
situated towards east of the A and E schedules of
Ext.B1. Exhibit B1 shows that the said puthuval
land was enjoyed by the members of the family in common before partition. Exhibit B1 permitted the allottees of A and E schedules therein, the late Padmanabhan Velayudhan and the late Kochuparvathy to pay ground rent, etc., and get assessment and patta for that part of the puthuval land (in Sy.No.1010/63) situated towards east of their registered holdings (A and E schedules of Ext.B1) for beneficial enjoyment of the said registered holdings. From the time of Ext.B1, the late Padmanabhan Velayudhan and the late R.S.A. No. 253 of 2006 -: 46 :- Kochuparvathy had exclusive possession of portions of the puthuval land (in Sy.No.1010/63) on the east of their registered holdings - the A and E schedules of Ext.B1, respectively.
(ii) Exhibits A1 to A3 relied on by the respondents cannot be accepted or acted upon.
(iii) Ext.A4, patta is invalid as it is issued by an authority not competent to do so and without the competent authority entering the personal satisfaction that the assignment is indispensably necessary for beneficial enjoyment of the registered holding of the late Padmanabhan Velayudhan.
(iv) Exhibits B2 and B3, pattas obtained by
the appellants and the deceased 1st defendant
pending the suit cannot be accepted and are not
shown to be in respect of the plaint A schedule.
(v) Plaint A schedule is found to be in the
possession of the late Kochuparvathy and pursuant to Ext.B4, in the possession of the deceased 1st defendant and the appellants. The prayer for R.S.A. No. 253 of 2006 -: 47 :- prohibitory injunction and fixation of boundary are not allowable.
(vi) The preponderance of probability is in
favour of contention of the appellants and
deceased 1st defendant that the plaint B schedule building was constructed by the late Kochuparvathy.
(vii) In the light of my above findings the declaration of title prayed for by the respondents over the plaint A schedule (which takes in the plaint B schedule) cannot be allowed.
(viii) In the view of the above and since the appellants are in possession of the plaint A schedule and the building therein (plaint B schedule) was constructed by the late Kochuparvathy, respondents are not entitled to the mandatory injunction prayed for.
(ix) It is made clear that it is open to the
parties concerned if they are otherwise entitled to
request the State Government for assignment of
plaint A schedule or portion of it as the case may be R.S.A. No. 253 of 2006 -: 48 :- under the provisions of the Land Assignment Act and the Rules and in case any such application is preferred, it is for the Government to decide whether the said land or such portion as the case may be should be assigned and if so to whom and on what terms and conditions. The party thus getting assignment of the plaint A schedule or portion of it as the case may be could seek appropriate reliefs based on such assignment if any, if he/she/they is/are otherwise entitled to such relief and as the law permits.
48. The substantial questions of law framed are answered as above.
Resultantly, the Second Appeal is allowed as under:
(i) Judgment and decree of the learned
Second Additional District Judge,
Thiruvananthapuram in A.S. No.32 of 1997 and of the R.S.A. No. 253 of 2006 -: 49 :- learned Third Additional Munsiff, Thiruvananthapuram in O.S. No.3212 of 1989 are set side.
(ii) O.S. No.3212 of 1989 of the Third Additional Munsiff's Court, Thiruvananthapuram will stand dismissed.
(iii) Parties shall suffer their costs
throughout.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv