Kerala High Court
T.Mohammed Haneefa vs T.Mohammed Haneefa on 23 June, 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
WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934
SA.No. 246 of 1999 (D)
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AS.432/1996 of SUB COURT, NEDUMANGAD
OS.103/1985 of PRINCIPAL MUNSIFF COURT,NEDUMANGAD
APPELLANT(S)/RESPONDENTS 4 AND 5/DEFENDANTS 4 AND 5:
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1. T.MOHAMMED HANEEFA, AYANIMOODE VEEDU, CHULLIMANOOR,
ANAD MURI, DO. VILLAGE.
2. A.SAINA BEEVI, W/O.MOHAMMED HANEEFA, OF DO. DO.
BY ADV. SRI.L.MOHANAN
RESPONDENT(S)/APPELANT AND RESPONDENTS 1 TO 3 & 6 TO 9/PLAINTIFFS AND
DEFENDANTS 1 TO 3:
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1. ASHYA BEEVI JUBARIYA BEEVI, NABEESATH BHAVAN, T.K.D.ROAD,
PARAYATHUMOOLA, KESAVADASAPURAM WARD, KURUNGANOOR MURI,
MADATHUVILAKAM VILLAGE, THIRUVANANTHAPURAM FROM
PUTHEN VEEDU, KOCHUKARIKKAKAM, PANGODE, CHITTUVEETU MURI,
UZHAMALACKAL VILLAGE.
(*)2. ALIYARU KUNJU SHAHUL HAMEED, PUTHEN VEEDU, KOCHUKARIKKAM,
PANGODE, CHITTUVEETU MURI, THOLIKKODE VILLAGE (DIED. DELETED
FROM THE PARTY ARRAY)
3. S.ASHYA BEEVI, OF -DO. DO.
4. M.ASUMA UMMAL, THEKKUMKARA PUTHEN VEEDU, ANAPETTY,
PARANDODE, CHITTUVETTU MURI OF DO.
5. J.UNAIBA BEEVI, THEKKUMKARA PUTHEN VEEDU, CHARUPARA,
PARANDODE, CHITTUVEETTU MURI, THOLIKKODE VILLAGE.
6. J.HAWLATH BEEVI, OF -DO- -DO-
7. J.RAHUMATH BEEVI, PF -DO- -DO-
8. K.MOHAMMED MUSTHAFA, -DO- -DO-
(*)NAME OF THE DECEASED R2 IS DELETED FROM THE PARTY ARRAY AT THE
RISK OF THE APPELLANTS AS PER ORDER DATED 23.6.2011.
ADV. SRI.V.N.ACHUTHA KURUP (SR.) - FOR R1
ADV. SRI.B.S.SWATHY KUMAR - FOR R1
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-09-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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S.A. No.246 of 1999
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Dated this the 12th day of September, 2012.
JUDGMENT
Though the Second Appeal is admitted on various substantial questions of law, on hearing the learned counsel on both sides I am inclined to re-formulate the substantial questions of law for a decision as under:
i. Whether the courts below were right in declaring title of the plaintiffs without deciding upon the dispute as to identity of the suit property raised by the defendants 4 and 5?
ii. Whether on the facts and evidence the courts below were justified in negativing the plea of adverse possession raised by the defendants 4 and 5?
2. The Second Appeal arises from the judgment and decree of the Sub Court, Nedumangad in A.S.No.432 of 1996 reversing dismissal of O.S.No.103 of 1985 of the Principal Munsiff's Court, Nedumangad. Parties are referred as plaintiffs and defendants for convenience.
3. Respondents 1 and 5 to 8/plaintiffs filed the suit originally for declaration of title and possession they claimed over the suit property and for fixation of boundary, later amended to incorporate a prayer for recovery of possession alternatively, if it is found that any of the defendants are in possession of the suit property. Item No.1 of the plaint schedule is 12 cents in survey No.1097/1 described as situated towards the northern portion of a total SA No.246/1999 2 extent of 24 cents. Item No.2 is 12 cents towards the southern side of the said 12 cents (forming the rest of the said 24 cents). 1st plaintiff is daughter of the late Aliyar Kunju in his first wife (2nd defendant). The 1st defendant is a brother of the 1st plaintiff. Plaintiffs 2 to 4 are children of the deceased daughter of the late Aliyar Kunju through the 3rd defendant, his second wife. The 5th plaintiff is the father of plaintiffs 2 to 4.
4. According to the plaintiffs, 24 cents (made up of item Nos.1 and 2) in survey No.1097/1 belonged to the late Aliyar Kunju as per Ext.A1, settlement deed of the year, 1122 ME. On the death of the said Aliyar Kunju, the said properties devolved on plaintiffs and other legal heirs. While so, Ext.A2, partition deed was executed with the plaintiffs who were then minors being represented by the defendants 1 to 3. In that partition, item No.1 was alloted to the 1st plaintiff as B schedule while item No.2 was alloted to the plaintiffs 2 to 4 as C schedule (of Ext.A2). The plaintiffs claimed that on the west of the suit property is the property belonging to the 1st defendant who later assigned it to the 4th defendant. They alleged that 4th defendant destroyed the boundary between the suit property and property belonging to him. Hence the suit for declaration of title and possession and for fixation of boundary. Pending suit, on the allegation that after the Advocate Commissioner inspected the properties the contesting defendants trespassed into the suit property, an alternative prayer for recovery of possession was incorporated in the plaint. SA No.246/1999 3
5. The 4th defendant contended that the 52 cents comprised in survey No.1095/1 was also the subject matter of Ext.A1, settlement deed. As per the said settlement deed, 13 cents described as D schedule in the settlement deed towards extreme north of the total of 52 cents was alloted to Aliyar Kunju. 13 cents on the immediate south of the D schedule was allotted to Moitheen Kannu as C schedule. The remaining 26 cents (out of the 52 cents) was allotted to two others as E and B schedules (towards south of the C schedule). While so, the said Moitheen Kannu and Aliyar Kunju created mortgage of the 26 cents (13 + 13 cents allotted to them as C and D schedules of Ext.A1) to Idries as per Ext.B4, mortgage deed dated 14.06.1954. Idries assigned his mortgage right over the 26 cents to the 4th defendant as per Ext.B3, assignment deed dated 16.03.1964. Thus the 4th defendant claimed to have got mortgage right and possession of the 26 cents (C and D schedules of Ext.A1). The 1st defendant who obtained jenm right (as per Ext.A1) over the 13 cents (D schedule of Ext.A1) assigned that right in favour of the wife of 4th defendant as per Ext.B2 dated 22.04.1974. Later, Maitheen Kannu who had equity of redemption over the 13 cents (C schedule of Ext.A1) assigned that right to the 4th defendant as per Ext.B1, assignment deed dated 08.10.1974. Thus, according to the 4th defendant, he got possession and equity of redemption over the entire 26 cents (C and D schedules of Ext.A1) and one half of jenm right over the said 26 cents while the remaining one half jenm right belong to his wife as per Ext.B2. The 4th defendant contended that on the west of the said 26 cents is the road and that it is the said 26 cents which is in his possession. He alternatively claimed that SA No.246/1999 4 title if any of the plaintiffs over the said 26 cents is lost by adverse possession and the law of limitation. A further contention he raised is as to the identity of the property contained in the plaint schedule.
6. The Advocate Commissioner inspected the properties and submitted Exts.C1 and C2. The Advocate Commissioner identified the properties comprised in survey No.1097/1 as situated on the immediate east of the Thiruvananthapuram-Chengotta road. The properties comprised in survey No.1095/1 are found to be situated on the east and north of the property comprised in survey No.1097/1. The Advocate Commissioner also reported that the properties comprised in survey Nos.1095/1 and 1097/1 are situated within common boundary, bounded by a stone bund on the northern side and road on the western side. The Advocate Commissioner also found that building No.9/157 is situated in the said properties in which the 4th defendant was residing with the family. According to the Advocate Commissioner, the boundary of item No.2 of the plaint schedule was not correctly described therein.
7. In the light of the above report and plan submitted by the Advocate Commissioner, plaintiffs got the plaint amended to state that the property of the 4th defendant is situated on the east of the property comprised in survey No.1097/1. They wanted, as against the original prayer in the plaint (to fix the western boundary of the suit property) to fix eastern boundary of the suit property (ie. between the properties comprised in survey No.1097/1 on the west and the property comprised in survey No.1095/1 on the east). Along with that, SA No.246/1999 5 the wife of the 4th defendant was impleaded as 5th defendant and the alternative prayer for recovery of possession was also made.
8. Trial court found that plaintiffs have got title over the property comprised in survey No.1097/1 and accordingly declared their title over the said property. However, the trial court did not grant decree for recovery of possession or fixation of boundary. Instead, trial court directed the plaintiffs to file a separate suit for recovery of possession and other reliefs.
9. The 1st plaintiff (alone) filed A.S.No.432 of 1996 challenging that part of the judgment and decree of the trial court which went against the 1st plaintiff. Defendants 4 and 5 preferred a cross objection challenging the finding regarding title of the suit property comprised in survey No.1097/1. The first appellate court by allowing the appeal, permitted plaintiffs to recover possession of the suit property from defendants 4 and 5. Eastern boundary of the suit property was ordered to be fixed along BC line in Ext.C2, plan. Defendants 4 and 5 were directed to remove the building in the suit property. Consequently, the cross objection preferred by the defendants 4 and 5 was dismissed. Hence the second appeal.
10. The learned counsel for the appellants/defendants 4 and 5 contends that on the dispute raised by defendants 4 and 5 as to the identity of the suit property, neither the trial nor the first appellate court has entered a specific finding. It is contended by the learned counsel that description of the suit properties is not correct. According to the learned counsel, even the description of B schedule in Ext.A2, partition deed executed between the plaintiffs and other SA No.246/1999 6 legal heirs of the late Aliyar Kunju is not correct. The learned counsel contends that boundaries given for the B schedule of Ext.A2 is the boundary of property comprised in survey No.1095/1 given in Ext.A1. The learned counsel has also referred me to Ext.C2 to contend that though in Ext.A1, the western boundary of entire property comprised in survey No.1095/1 and dealt with thereunder is described as 'road', going by Ext.C2, only a portion of the property comprised in survey No.1095/1 has road as its western boundary while the remaining portion of the property comprised in survey No.1095/1 is shown as situated towards east of property comprised in survey No.1097/1. It is argued that there is no such description given for the property comprised in survey No.1095/1 either in Ext.A1 or Ext.A2. It is argued that Exts.C1 and C2 cannot be relied on to find identity of the property. It follows that the finding of the courts below regarding title of the suit property is not sustainable.
11. It is further argued by the learned counsel that as against dismissal of the suit, only the 1st plaintiff who claimed title and possession of item No.1 of plaint schedule preferred appeal while concerning dismissal of the suit to the extent it concerned item No.2 of plaint schedule, plaintiffs 2 to 4 did not prefer any appeal. In the circumstances, the first appellate court was not right at any rate, in interfering with the dismissal of the suit concerning item No.2 of the plaint schedule.
SA No.246/1999 7
12. The learned counsel for respondents 1 and 5 to 8/plaintiffs contended that since the appellants/defendants 4 and 5 have not remitted separate court fee in challenge of dismissal of the cross objection by the first appellate court, finding of the first appellate court regarding title over the suit property cannot be assailed since according to the learned counsel, that finding would operate as res judicata. It is argued that as regards acceptability of Exts.C1 and C2, defendants 4 and 5 had not preferred any objection to Exts.C1 and C2. Nor was the Advocate Commissioner or the Surveyor examined to show that Exts.C1 and C2 are not acceptable. Hence at the belated stage, contention as against Exts.C1 and C2 cannot be entertained. It is also argued by the learned counsel that it is not as if the property comprised in survey No.1095/1 as identified by the Advocate Commissioner in Exts.C1 and C2 does not have the road forming the western boundary. It is pointed out that a portion of the property comprised in survey No.1095/1 has road on its western boundary. Hence, it is argued that the challenge to Exts.C1 and C2 has to fail.
13. So far as argument advanced by the learned counsel for the appellants/defendants 4 and 5 about plaintiffs 2 to 4 not challenging judgment and decree of the trial court by filing a separate appeal is concerned, I am not very much impressed, in view of Rules 4 and 33 of Order XLI of the Code of Civil Procedure (for short, "the Code"). It was within the power of the first appellate court while deciding the appeal preferred by the 1st plaintiff to enter a finding concerning item No.2 also since contention of the 1st plaintiff and plaintiffs SA No.246/1999 8 2 to 4 though concerning item Nos.1 and 2 separately, flow from Exts.A1 and A2. In otherwords, the claim of plaintiffs 1 to 4 is common and based on Exts.A1 and A2. Therefore, it was within the power of the first appellate court to decide correctness of the dismissal of the suit concerning plaintiffs 2 to 4 as well.
14. So far as identification of the suit property is concerned, it is seen that neither the trial court nor the first appellate court has specifically adverted to the contention raised by the appellants/defendants 4 and 5, may be because defendants 4 and 5 did not prefer any objection to Exts.C1 and C2. But, it was necessary for the trial and the first appellate courts, notwithstanding that defendants 4 and 5 had not preferred any objection to Exts.C1 and C2 to decide the dispute regarding identity of the suit property.
15. I stated that the plaintiffs are claiming title over the suit properties as per Exts.A1 and A2. I also stated that the claim of plaintiffs is over the 24 cents (item Nos.1 and 2) comprised in survey No.1097/1 and which was settled in favour of the late Aliyar Kunju as per Ext.A1, settlement deed. In Ext.A1, the said 24 cents in survey No.1097/1 is described in the D schedule. Description of the D schedule is that the 24 cents in survey No.1097/1 is bounded by 'purayidom' on all sides.
16. It is relevant to note from Ext.A1 that the property comprised in survey No.1095/1 is allotted to four persons including Moideen Kannu and the late Aliyar Kunju as B to E schedules (C schedule is allotted to Moideen Kannu SA No.246/1999 9 and D schedule is allotted to the late Aliyar Kunju). It is pointed out by the learned counsel for defendants 4 and 5 from the description of B to E schedules that the entire 52 cents (allotted under B to E schedules) comprised in survey No.1095/1 is described as bounded by road on the west, purayidom on the north and south and hillock on the east.
17. So far as defendants 4 and 5 are concerned, their claim of title is over the property in survey No.1095/1 and covered by Exts.B1 to B4, again, referring to the property comprised in survey No.1095/1 referred to in Exts.A1 and A2.
18. As it stands now, it is pointed out by the learned counsel for defendants 4 and 5 that the boundary description of the property comprised in survey Nos.1097/1 and 1095/1 in Exts.A1 and A2 do not tally with the boundary description in Ext.C2. It is seen from Ext.C2 that the property comprised in survey No.1097/1 is shown as bounded by the road on the western side but, no such boundary description is seen for the property comprised in survey No.1097/1 either in Ext.A1 or in Ext.A2 (except the B schedule in Ext.A2 which according to the learned counsel for defendants 4 and 5, is not correct as it does not tally with the description given in Ext.A1).
19. True that defendants 4 and 5 did not prefer any objection to Exts.C1 and C2. But, the boundary description of property in survey Nos.1095/1 and 1097/1 in Exts.A1 and A2 and Exts.B1 to B4 do not prima facie tally with the description given by the Advocate Commissioner in Ext.C2. I say, "prima facie"
because the said question was not considered and decided by the courts below. SA No.246/1999 10 In the light of the description I have referred above from Exts.C1 and C2, I am inclined to think that no finding regarding title could have been entered by the courts below without deciding the dispute on identity. If that be so, the prayer for recovery of possession of property could not have been allowed by the first appellate court.
20. True that the suit is of the year, 1985. But, I am inclined to think that for the reason I have above stated I must not non-suit the plaintiffs if they are otherwise entitled to succeed in the suit. I am inclined to think that having regard to the facts and circumstances of the case; a remand of the case is necessary notwithstanding the length of time. Lord Atkin said, in Behari v. King Emperor ((1933) 60 L.R.I.A. 254) "Finality is a good thing, but justice is better"
21. The trial court has to consider the dispute regarding identity of the property. If the trial court on such examination finds that Exts.C1 and C2 do not reveal proper identity of the suit property, it shall take steps to set aside/remit Exts.C1 and C2 as circumstances required and get necessary datas for proper identification of the properties comprised in survey Nos.1095/1 and 1097/1 over which the parties claim right and decide the suit accordingly. SA No.246/1999 11
22. The next argument the learned counsel for the plaintiffs has urged is non-payment of court fee as to the challenge made by the appellants/defendants 4 and 5 against dismissal of their cross objection by the first appellate court. Though, an argument is advanced that in the absence of payment of court fee in challenge of dismissal of the cross objection, finding entered by the first appellate court regarding title would operate as res judicata, I am not inclined to accept that contention since it is open to the appellants/defendants 4 and 5 to challenge in a single appeal the judgment and decree of the first appellate court allowing the appeal and dismissing the cross objection.
23. So far as non-payment of court fee in challenge of cross objection is concerned, the learned counsel would submit that court fee paid in the suit is `62/- while on the cross objection, defendants 4 and 5 had paid `24/- as court fee. It is pointed out that in the second appeal, court fee paid is only `72/-. That according to the learned counsel for plaintiffs falls short of the required court fee. The learned counsel has invited my attention to the decision in Nherapoyil N.P.Moideen v. Narayanan Nair (AIR 1997 Kerala 318) and in particular, the observations in paragraph 6 of that decision. SA No.246/1999 12
24. The learned counsel for the appellants/defendants 4 and 5 contends that under Sec.52 of the Court Fees and Suits Valuation Act (for short, "the Act"), appellants/defendants 4 and 5 are obliged to pay the same fee that would be payable in the court of first instance on the subject matter of the appeal.
25. In the decision cited, it is seen that the question considered was whether, while challenging in appeal the decision on the counter claim in the suit, appellant is liable to pay court fee on the counter claim and what would be the effect of non-payment of such court fee. In paragraph 6, after referring to the various decisions which took the view that a cross objection in an appeal is treated as an appeal itself, learned Judge observed that by non-payment of court fee on the counter claim in appeal, the appellate court is not in a position to consider the question of counter claim and hence it has to be held that the counter claim as rejected by the trial court has become final. Thus, it was held that the finality attached to the decision on the counter claim would operate as res judicata in the appeal.
26. That is not the situation with which the appellants/defendants are now confronted with. Though, challenging the declaration granted by the trial court, appellants/defendants 4 and 5 preferred a cross objection in the first appellate court. It is not disputed that the cross objection was properly valued and court fee was accordingly paid in the first appellate court. The first appellate SA No.246/1999 13 court while rejecting the cross objection in confirmation of the declaration of title granted by the trial court, allowed the appeal and granted recovery of possession as well. That is the prayer the respondents/plaintiffs have made in the suit. The respondents/plaintiffs valued the suit at `62/-. In this Second Appeal, appellants/defendants 4 and 5 are challenging the dismissal of the cross objection as well. In short, what the appellants/defendants 4 and 5 challeng is the declaration of title and recovery of possession granted by the trial and the first appellate courts. If that be so, obligation of the appellants/defendants 4 and 5 under Sec.52 of the Act is to pay court fee which the respondents/plaintiffs have paid in the suit. It is not disputed that the court fee paid by the appellants/defendants 4 and 5 in the appeal exceeds the amount of court fee the respondents/plaintiffs had paid in the trial court. If the argument of learned counsel for respondents/plaintiffs is accepted, it would mean that apart from paying court fee which the respondents have paid in the trial court, appellants/defendants 4 and 5 are required to pay further court fee in challenge of dismissal of the cross objection. That I am not inclined to think is the purport of Sec.52 of the Act. Hence, the said contention raised by the respondents/plaintiffs has to be rejected.
27. The learned counsel for the respondents/plaintiffs submitted that having regard to the dispute regarding identity of the suit property raised by the appellants/defendants 4 and 5, it may be necessary for the respondents/plaintiffs to amend the plaint. I make it clear that it is open to the SA No.246/1999 14 respondents/plaintiffs to move appropriate application in the trial court for that purpose if such a course becomes necessary, and if any such application is preferred, the trial court shall dispose of the said application as provided under law.
28. In the light of my above finding, it is necessary to set aside all the findings the trial and the first appellate courts have entered in the suit and, I do so. The appeal is liable to be allowed and, the suit remitted to the trial court for fresh decision.
29. The substantial questions of law framed are answered accordingly. Resultantly the Second Appeal is allowed by way of remand as under:
i. Judgment and decree of learned Sub Judge, Nedumangad
in A.S.No.432 of 1996 and of learned Principal Munsiff, Nedumangad in
O.S.No.103 of 1985 are set aside.
ii. O.S.No.103 of 1985 is remitted to the Principal Munsiff's
Court, Nedumangad for fresh decision on all questions involved in the suit including dispute as to the identity of the property after giving both sides opportunity to adduce further evidence if any, in the matter. SA No.246/1999 15
iii. Trial court is directed to dispose of the suit giving it top priority.
iv. Parties shall appear in the trial court on 10.10.2012. Registry is directed to transmit the records of the case to the trial court forthwith.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
cks SA No.246/1999 16 THOMAS P. JOSEPH, J.
S.A.No.246 of 1999 JUDGMENT 12th September, 2012.