Kerala High Court
Kannoth Maniyan Adiyodi vs Puthiya Veettil Ramachandran on 14 March, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933
RSA.No. 1246 of 2005 ( )
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AS.6/1998 of ADDL. DISTRICT COURT, VADAKARA
OS.64/1992 of MUNSIFF-MAGISTRATE COURT, PAYYOLI
APPELLANT IN R.S.A/APPELLANT IN A.S/DEFENDANT IN SUIT:
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KANNOTH MANIYAN ADIYODI,
S/O.OMANA AMMA, RESIDING AT MALAYIL, MELADI AMSOM
KIZHUR DESOM.
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.K.JAYAKUMAR
SRI.P.B.KRISHNAN
RESPONDENTS IN RSA/RESPONDENTS IN A.S/PLAINTIFFS IN SUIT:
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1. PUTHIYA VEETTIL RAMACHANDRAN,
S/O.GOPALAN, TEACHER, MELADI AMSOM
DESOM, KIZHUR DESOM, KOYILANDI TALUK.
2. PUTHIYA VEETTIL DAMODARAN,
S/O.NARAYANAN, HANDEX MANAGER, IN DO. DO.
BY ADV. SMT.PRABHA R.MENON
BY ADV. SRI.M.KRISHNAKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
14-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A.No.1246 of 2005
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Dated this 14th day of March, 2012
JUDGMENT
This second appeal is admitted on the following substantial questions of law:
(i) Is the lower appellate court justified in finding possession in the plaintiffs without identifying a single material act of possession particularly when the trial court has held that the plaintiffs have not proved any act of possession over the property?
(ii) Has not the lower appellate court made an essentially erroneous approach to the whole case by embarking on an enquiry into the title and possession pleaded by the defendant and thereafter following a process of elimination to uphold the case of the plaintiffs?
2. This appeal is brought from the judgment and decree of learned Additional District Judge, Vatakara in A.S.No.6 of 1998 confirming the judgment and decree for prohibitory injunction granted by the learned Munsiff-Magistrate, Payyoli in favour of respondents/plaintiffs in O.S.No.64 of 1992 of that Court.
3. Dispute concerns 6 cents in old survey No.84/18 and resurvey No.125/12 described as bounded by the Payyoli- Perambra road on the north, Moothachettian Veettil paramba on R.S.A.No.1246 of 2005 -: 2 :- the south, rest of property on the west and Pukayilantavita chettian peedika on the east. Respondents claimed title and possession of the suit property as per Ext.A1, assignment deed of the year, 1991 executed in their favour by PW2. They alleged that appellant is attempting to trespass into the said property.
4. Appellant claimed that respondents or their predecessors have neither title nor possession of the suit property and that it forms part of property belonging to him as per Exts.A23 , B2 and B1. He claimed that it is the market land (chanda sthalam) which he had rented out to traders in connection with the festival in the local temple. He also denied the allegation of trespass made by the respondents.
5. Trial court framed an issue regarding title of the suit property and as respondents did not pay court fee as provided under Sec.27(a) of the Kerala Court Fees and Suit Valuation Act (for short, "the Act"), the said issue was deleted from consideration. Trial court observed that for deciding possession, notwithstanding that the issue regarding title was deleted, reference can be made to the title claimed by the respondents. Trial court though observed in paragraph 14 of its judgment that respondents could not establish with documentary evidence or evidence of uninterested witnesses that they have permitted R.S.A.No.1246 of 2005 -: 3 :- traders to put up stalls in the suit property and further observed in paragraph 15 that respondents could not prove any act of possession as well, held that the said aspects do not affect proof of possession of property as revealed by the documents of title produced by the respondents. The documents produced by the respondents would show that they have valid title and thus they could be considered to be in possession of the suit property (which is a small extend of vaccant land). Trial court also observed that the plea of appellant that he has possession of the property as per Exts.A23, B2 and B1 cannot be accepted. Consequently on the finding that respondents are in possession of the suit property, a decree for prohibitory injunction was granted.
6. Appellant took up the matter in appeal. The first appellate court in paragraph 6 of its judgment stated, referring to the plaint schedule, Ext.A1 and the schedule descriptions therein that suit property is in the possession of respondents. First appellate court also stated that appellant was not able to prove the possession he claimed on the strength of Ext.B1, assignment deed in his favour. First appellate court was of the view that since the evidence produced by the appellant is totally unacceptable, that would also give credence to the evidence of R.S.A.No.1246 of 2005 -: 4 :- respondents regarding possession. So observing, judgment and decree of the trial court were confirmed. Hence this second appeal.
7. Learned Senior Advocate for the appellant has contended that except Ext.A1, none of the documents of title relied on by the respondents would show that respondent or his predecessor in interest has acquired right, title, interest or possession of the property comprised in old survey No.84/18 and resurvey No.125/12. It is contended that except Ext.A1, all other documents of title relied on by the respondents refer to the property comprised in old survey No.84/17 and resurvey No.125/13. It is contended by the learned Senior Advocate that in Ext.A12, partition deed said to be executed between PW2, the assignor of respondents and others, there is no reference to the property comprised in old survey No.84/18 and resurvey No.125/12 being allotted to the share of PW2 so that, he could not convey title or possession of the property comprised in old survey No.84/18 and resurvey No.125/12 to the respondents. It is also contended that both the courts below have proceeded on a wrong tangent in that, courts below considered whether the plea of appellant that he is the title holder in possession of the suit property as per Ext.B1 is correct or not. It is contended that the R.S.A.No.1246 of 2005 -: 5 :- courts below were finding whether appellant is in possession of the property and not whether plea of respondents that they have title and possession of the property is correct or not. According to the learned Senior Advocate, this being a suit for injunction and particularly the issue regarding title was deleted on account of non payment of the court fee under Sec.27(a) of the Act, courts below were not correct in referring to the title and what the courts below were required to decide in the suit for injunction was only whether on the date of suit, respondents were in possession of the suit property. It is pointed out that evidence of DWs.1 and 2 was rejected for no valid reason. That, DW1 was dealing with the suit property on behalf of appellant even on the day of institution of the suit is revealed by Ext.C1, report of the Advocate Commissioner where the Advocate Commissioner states that at the time of inspection (immediately after the institution of the suit) there were traders in the suit property and those persons told the Advocate Commissioner that they were permitted to be in the suit property by DW1. Learned Senior Advocate has placed reliance on the decisions in Jemma Vs. Raghu (AIR 1977 Orissa 12), Bruce Vs. Silva Raj and Ors. ((1987) Supplemental SCC 161), Pratap Rai N. Kothari Vs. John Braganza (AIR 1999 SC 1666) and Anathula Sudhakar R.S.A.No.1246 of 2005 -: 6 :- Vs. P.Buchireddy and Ors. (AIR 2008 SC 2033).
8. In response it is contended by the learned counsel for respondents that courts below having, on a consideration of the evidence found that respondents are in possession of the property, it involves no substantial question of law as it is a finding of fact entered by the courts below. It is also argued by the learned counsel that in deciding whether the case pleaded by the respondents as to their possession of property is correct or not, it is open to the Court to refer to the documents of title relied on by the respondents, though, it need not necessarily be a full fledged enquiry into title. It is argued that documents produced by the respondents would show that property extending up to the Payyoli-Perambra road on the northern side belonged to Moothachettian veedu tharavad and by assignment or otherwise, it came into the possession of PW2 who assigned the said property into the respondents as per Ext.A1. Learned counsel has referred me to Exts.A2, A3 and A13 to show that prior to Ext.A1, assignment deed, PW2, the assignor was holding the property comprised in resurvey No.125/12 and after Ext.A1, respondents paid revenue for the said property as per Exts.A2 and A3. It is also argued that so far as the claim made by the appellant is concerned, Exts.A23, B2 or B1 does not refer to the R.S.A.No.1246 of 2005 -: 7 :- suit property and there is also no document to show either that appellant or on his behalf DW1, was giving the property on rent to anybody. It is pointed out by the learned counsel that evidence of DW2, the manager of trustee board of the temple that appellant was renting out the suit property to the traders in the course of festival cannot be accepted since according to DW2, a portion of the rental was being received by the temple but, there are neither accounts nor receipts for the same. It is argued that if any amount was received by the temple committee, necessarily one expected records for the same and in the circumstance the oral evidence of by DWs.1 and 2 cannot be accepted.
9. This being a suit for injunction, the question to be decided is not whether appellant was able to prove his possession but, whether respondents were in possession of the suit property on the date of suit. But, I must also bear in mind that once both sides have adduced evidence, issue regarding burden of proof pales into insignificance and what then is required is appreciation of evidence let in by the parties to resolve the controversy.
10. True that for non payment of court fee under Sec.27
(c) of the Act, trial court deleted the issue regarding title and rightly too. But that does not mean that the Court cannot refer to R.S.A.No.1246 of 2005 -: 8 :- the documents of title produced by either side to trace the possession claimed by them. My reference to the documents produced by either side will be limited to the said purpose.
11. Ext.C5 is the last survey plan obtained by the trial court with the assistance of the Superintendent of Survey. Ext.C6 is the report of the Advocate Commissioner accompanying Ext.C5. In Ext.C5, the suit property is shown as 5.9 cents shown as plot A and comprised in resurvey No.125/12 with the rest of property in that resurvey being on its immediate west. On the south of plot A (suit property) and the rest of property in the same resurvey (on the west) is plot B1 and on its further south, is plot B2. It is not very much in dispute that plots B1 and B2 and even property on the further south of plot B2 are comprised in resurvey No.125/13. It is also not in dispute that on the west of remaining part of property comprised in resurvey No.125/12 (on the west of the suit property marked plot A in Ext.C5) and on the west of plots B1 and B2 and other properties on its southern side is a way described in the relevant documents as 'theruvatari'. On the further west of the said 'theruvatari' is the property comprised in resurvey No.125/7 which, it is not very much in dispute belong to PW2, the assignor in Ext.A1. On the north of the suit property, it is not disputed, is the Perambra-Payyoli road R.S.A.No.1246 of 2005 -: 9 :- and property covered by Exts.A23, B2 and B1 marked in green shade (excluding the road on the north of the plot suit property and rest of the property in resurvey No.125/12 on its west).
12. According to the respondents, the suit property as well as property comprised in resurvey No.125/13 along with other items belonged to the Moothachettian veedu. While so, in execution of the decree in O.S.No.703 of 1936 the above said items were sold in court auction. Exts.A6 and A7 are the copy of sale certificates issued in favour of the auction purchasers in E.P.Nos.697 of 1940 and 965 of 1941, respectively. It is seen from Ext.A6 that what was sold in E.P.No.697 of 1940 is possessory right of the tharavad while as per Ext.A7, its jenm right over the said property was sold in E.P.No.965 of 1941. Thus the auction purchaser got absolute right over the property referred to in Exts.A6 and A7.
13. In Exts.A6 and A7, item No.1 is the property comprised in old survey No.84/17 and resurvey No.125/13 described as 'Muthachettian veedu parambu' and bounded by Pukayilantavita paramba on the east, Anathachettiantavite paramba on the south, 'theruvatari' on the west and government road on the north. The extent of item No.1 covered by Exts.A6 and A7 is 21 x 20 (for 6 feet koles) ie, 35 cents. Item No.2 in R.S.A.No.1246 of 2005 -: 10 :- Exts.A6 and A7 is 'Koodentavide paramba' in old survey No.84/16 and resurvey No.125/17. Then comes Ext.A8, release deed executed by two of the auction purchasers in favour of one Chandu Nair. Ext.A8 takes in the very same property as referred to in Exts.A6 and A7 with the same descriptions, survey number and extent.
14. The said Chandu Nair assigned the property to three persons including Kelu as per Ext.A9 where also, the same descriptions as in Exts.A6 to A8 are given.
15. It is thereafter that some of the members of Moothachettian veedu tharavadu filed O.S.No.857 of 1949 for partition of the properties belonging to that tharavad. Ext.A11 is the copy of judgment and Ext.A10, copy of decree in that suit. It is seen from Exts.A10 and A11 that of the plaint A schedule items referred therein all items except, items Nos.1, 4, 15, 21, 22, 24, 26 and 28 were ordered to be partitioned and a preliminary decree was passed. Ext.A10, copy of preliminary decree shows that item No.1 is 'Moothachettian veedu paramba' falling in old survey No.84/11 and resurvey No.125/13 having an extent of 55 cents. Item No.21 is the 'theruvil chanda sthalam' comprised in old survey No.84/18 and resurvey No.125/12 and extending to 10 cents (the said items were also excluded as referred to above R.S.A.No.1246 of 2005 -: 11 :- from partition as seen from Ext.A11, judgment). Obviously the above said items covered by Exts.A6 to A8 were excluded from partition as the said items had gone out of the family by the Court auction and subsequent assignment.
16. Among Kelu and others who acquired the said properties there was partition as per Ext.A12. In that partition, item No.1 (of Ext.A12), 'Muthahettain veedu paramba' in old survey No.84/17 and resurvey No.125/13 measuring 20 x 21 6 feet koles bounded by Pokayilantavite paramba on the east, Ananthachettiantavite paramba on the south, 'theruvatari' on the west and government road on the north was allotted to the share of Kelu (PW2). Item No.4 mentioned in Ext.A12 is koodandavite paramba in old survey No.84/10 and resurvey No.125/7 bounded by 'theruvatari' on the east (which I stated from Ext.C5, plan, forms eastern boundary of property comprised in resurvey No.125/7).
17. The said Kelu, according to respondents assigned the suit property to them as per Ext.A1, assignment deed. Learned counsel for respondents has pointed out that the suit property is item No.1 in the A schedule of Ext.A10, judgment which along with item No.1 and other items referred to above were exempted from partition since the said properties had already had gone out R.S.A.No.1246 of 2005 -: 12 :- of the family by the auction sale in O.S.No.703 of 1936 and evidenced by Exts.A6 and A7. It is contended by the learned counsel that in the prior documents in favour of PW2, Kelu there is no specific reference to the 10 cents falling in old survey No.84/18 and resurvey No.125/12, but the description of properties comprised in old survey No.84/17 and resurvey No.125/13 show that it took in the property comprised in old survey No.84/18 and resurvey No.125/12 as well in that, the northern boundary of the property is described as public road (government road mentioned in the prior document referred above). It is also pointed out by the learned counsel that otherwise, if what was covered by the prior documents was only the property comprised in old survey No.84/17 and resurvey No.125/13, there was no possibility of northern boundary of the said property being described as the public road (government road) since admittedly on the north of the said property is the property comprised in old survey No.84/18 and resurvey No.125/12 (ie. the suit property). It is contended that in the said circumstance boundary descriptions have to be preferred notwithstanding that the old and resurvey number of the suit property and the rest of that property on its immediate west are not specifically mentioned in the prior documents of title. R.S.A.No.1246 of 2005 -: 13 :-
18. Learned Senior Advocate has contended that though, Exts.A6 and A7, copy of the sale certificates are produced, there is no evidence to show that the said properties were taken delivery through court so that the said properties could be the subject matter of the transfer of possession as per the documents referred above and at any rate, Ext.A1 in favour of respondents.
19. No doubt, no documentary evidence is produced to show that properties referred in Exts.A6 and A7 were taken delivery by the auction purchasers through Court. But delivery through court is not the only mode of taking possession. It is seen that all the documents after Exts.A6 and A7 which I have referred above show that the auction purchasers have transferred their title, interest and possession of the property covered by Exts.A6 and A7 and the successive documents also would show that the title, interest and possession of the property were being conveyed to the assignees. Hence the mere absence of document to show that there was delivery of the property referred to in Exts.A6 and A7 through Court in my view, does not stand in the way of respondents claiming possession of the suit property.
20. I stated that except in Ext.A1, none of the prior documents as rightly pointed out by the learned Senior Advocate R.S.A.No.1246 of 2005 -: 14 :- refers to old survey No.84/18 and resurvey No.125/12. Though, when there is discrepancy regarding extent, survey number, boundary, measurement etc., there is no invariable rule that one or the other should prevail, the settled position of law is that one that is more clearer and specific has to be accepted. That depends on a proper construction of the document. As aforesaid, documents of title relied on by the respondents would show that their assignors were dealing with the entire property, be it under resurvey No.125/13 or under 125/12, extending up to public road (government road) on the southern side. Other boundary descriptions which I have discussed above also justify that conclusion. Therefore, I am inclined to think that the documents relied on by the respondents would show that their predecessor- in-interest had possession of the property up to the public road (government road) on the northern side.
21. True that as aforesaid, this being a suit for injunction what is relevant and required to be decided is the possession claimed by the respondents on the date of suit. Courts below have referred to the failure of appellant to prove his title and possession of the suit property. I stated that once the parties have adduced evidence, question regarding burden of proof pales into insignificance and what is required is an appreciation of the R.S.A.No.1246 of 2005 -: 15 :- evidence. In that sense, first appellate court was right in referring to the failure of appellant to show that he has got possession of the suit property as per Exts.A23, B2 and B1, respectively. It is not argued also before me that appellant got possession of the suit property as per the above said documents. I must notice that it is the avowed case of appellant that he got possession of the suit property as per Exts.A23, B2 and B1 and that is attempted to be proved through DW1, representative of the appellant. It is relevant to note that appellant has no case of taking possession of the suit property otherwise than under Ext.A23. He does not (now that he is not relying upon Exts.A23, B2 and B1 to prove possession) say how else he got possession of the suit property. These circumstances are also to be taken into account while appreciating the evidence of respondents booked by their documents of title.
22. Exts.A15 to A22 are the receipts for payment of land revenue produced by the respondents. PW1, first respondent stated that Exts.A15 to A22 are not in respect of the suit property. But, it is relevant to note that Ext.A13, certified copy of settlement register shows that Kelu (PW2) was in possession of 10 cents comprised in resurvey No.125/12 and covered by patta No.126. In Exts.A14 and A15 also, the same patta number is R.S.A.No.1246 of 2005 -: 16 :- stated. Therefore, notwithstanding the version of the first respondent as PW1 that Exts.A15 to A22 do not relate to the disputed property, it is clear that it takes in the property covered by patta No. 126, ie, 10 cents in resurvey No.125/12 as well. I must also notice that respondents have produced Exts.A2 and A3 to show that they have paid revenue for the suit property of course, pursuant to Ext.A1, assignment deed in their favour but before institution of the suit. On the other hand, appellant who claims to be in possession of the suit property since long was not able to produce even a single receipt for payment of land revenue. PW2, the assignor of the respondents (executant of Ext.A1) stated that he was in possession of the suit property comprised in resurvey No.125/12 (old survey No.84/18) and conveyed the same to the respondents as per Ext.A1.
23. DWs.1 and 2 are examined to say that that suit property was being rented out to the traders in connection with the festival in the local temple. No doubt, DWs.1 and 2 have stated so. According to DW1, the rental was being received by him or the appellant as the case may be. DW2 stated that a portion of the rental was being paid to the temple committee. He would say that neither was the temple committee issuing any receipt for such payment nor maintaining any account for the R.S.A.No.1246 of 2005 -: 17 :- same. It appears to me difficult to accept that version of DW2. It is quite unlikely that a temple committee would receive any amount by way of rental without any record and without issuing any receipt. No doubt, in Ext.C1, report the Advocate Commissioner has stated that at the time he inspected the property there were some traders engaged in business in the suit property and they told the Advocate Commissioner that they were permitted by DW1 to be in the suit property. PW1 admitted that DW1 was managing the properties of the appellant (but not the suit property). But, it is not shown that the Advocate Commissioner was authorised to conduct any local enquiry at the spot and collect evidence in the way he has stated in Ext.C1. If the purport of the warrant was to inspect the property, Advocate Commissioner could not have gone beyond that power and conducted a local enquiry. Whatever be the reason thereof none of the persons who is said to have been present at the spot were not available for examination.
24. I stated that in all the documents (except Ext.A1) relied on by the respondents and referred above, the entire boundary descriptions given are of plots A in Ext.C5 (suit property) and rest of property in resurvey No.125/12 on its west, plots B1, B2 and rest of property in resurvey No.125/13 on its R.S.A.No.1246 of 2005 -: 18 :- further south. That description tallies with the reports the Advocate Commissioners have submitted. Reports submitted by the Advocate Commissioners tally with the boundary description of the suit property given in Ext.A1 and the plaint schedule as well. In the circumstances, I am inclined to hold that PW2 and other predecessors-in-interest of the respondents were in possession of a compact plot falling within specific boundaries mentioned therein which includes the suit property as well notwithstanding that in the prior documents old survey No.84/18 and resurvey No.125/12 are not specifically mentioned. Having regard to the relevant circumstances the boundary descriptions in the prior documents should prevail. Viewed in that line I am inclined to uphold the finding of courts below that respondents are in possession of the suit property.
25. The substantial questions of law framed are answered accordingly.
The second appeal fails. It is accordingly dismissed. No costs.
Sd/-
(THOMAS P. JOSEPH, JUDGE) Sbna/-
/True Copy/ P.A to Judge