Dismissed

Parukutty Amma Bhavani Amma v. Sarojini Amma

Kerala HC13 Jun 2012RSA/1059/2008

Case brief

AI extract

What is this about?

In these second appeals challenging civil decrees for declaration of title and recovery of possession, the Kerala High Court held that there was no dispute regarding the respondents' title derived from a partition deed. The court dismissed the appeals, finding no substantial question of law involved after analyzing evidence and noticing no fresh document proof was required at this stage.

What did the court decide?

The second appeals filed by appellants against the civil decree confirming title declaration and possession recovery are dismissed.

Parukutty Amma Bhavani Amma Vs Sarojini Amma — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934

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RSA.No. 1059 of 2008 (A)

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[AS.NO.42/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA, OS.NO.319/1995 OF SUB COURT, PATHANAMTHITTA]

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APPELLANT/RESPONDENT/DEFENDANT:

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1. PARUKUTTY AMMA BHAVANI AMMA, W/O.RAGHAVAN NAIR AGED 79 YEARS, RESIDING AT VIHJAYASADANAM, PALAMAROOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK.

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2. RANGULAR @ JAYAN, S/O.RAGHAVAN NAIR, AGED 48 YEARS, RESIDING AT VIJAYASADANAM, PALAMAROOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK.

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3. SHELLA @ RAMANI, D/O.RAGHAVAN NAIR, AGED 52 YEARS RESIDING AT DO DO.

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4. SHALI @ KUTTAPPAN, D/O.RAGHAVAN NAIR, AGED 59 YEARS, RESIDING AT DO.

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BY ADV. SRI.PHILIP M.VARUGHESE.

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RESPONDENT/APPELLANT/ PLAINTIFF:

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1. SAROJINI AMMA, W/O.GOVINDA PILLAI, AGED ABOUT 80 YEARS, RESIDING AT CHANDANAPALLIL HOUSE, ELANTHOOR MURI, ELANTHOOR VILLAGE, PATHANAMTHITTA DISTRICT.

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2. C.G.KARUNAKARA KURUP, S/O.GOVINDA PILLAI, AGED ABOUT 65 YEARS, RESIDING AT -DO-

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R.S.A. NO.1059/2008-A:

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3. C.G.RAVEENDRAN NAIR, S/O.GOVINDA PILLAI, AGED ABOUT 59 YEARS RESIDING AT DO.

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4. C.G.RAMACHANDRAN NAIR, S/O.GOVINDA PILLAI, AGED ABOUT 57 YEARS, RESIDING AT DO.

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5. C.G. GOPALAKRISHNAN NAIR, S/O. GOVINDA PILLAI, AGED ABOUT 55 YEARS, RESIDING AT DO.

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6. C.G. CHANDRIKA BAI, D/O. GOVINDA PILLAI, AGED ABOUT 51 YEARS RESIDING AT DO.

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7. INDIRA @ AMMINI, D/O. RAGHAVAN NAIR, AGED ABOUT 55 YEARS, RESIDING AT VIJAYASADANAM, PALAMAROOR MURI, KUMBAZHA, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK.

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R1 TO R6 BY ADV. SRI.JACOB P.ALEX, R7 BY ADV. SRI.M.D.VINOD.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-06-2012, ALONG WITH R.S.A.NO. 1138/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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THOMAS P. JOSEPH, J.

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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Dated this 13^th day of June, 2012

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JUDGMENT

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These appeals arise from the separate judgment and decree of learned District Judge, Pathanamthitta in A.S.Nos.42 of 2004 and 99 of 2005 confirming the judgment and decree of learned Sub Judge, Pathanamthitta in O.S.Nos.319 and 320 of 1995.

¶30

Respondents 1 to 6 in R.S.A.No.1059 of 2008 filed O.S.No.319 of 1995 for a declaration of title, recovery of possession and other reliefs claiming that the suit property belonged to one Govinda Pillai as per partition deed No.3203 of 1110M.E and on his death it devolved on his legal representatives who are respondents 1 to 6. The suit property was being cultivated by the late Raman Pillai, brother of the said Govinda Pillai and after Raman Pillai, his son Raghavan Nair cultivated the suit property giving respondents 1 to 6 and their predecessorin-interest the share of yield. While so, Raghavan Nair who is the predecessor-in-interest of appellants/defendants caused S.M proceeding No.608 of 1976 to be initiated in the Land Tribunal claiming tenancy right over the suit property. The claim of tenancy raised by the said Raghavan Nair was ultimately rejected

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 2 :-

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by this Court in C.R.P.Nos.1590 and 1781 of 1989. According to respondents 1 to 6, appellants trespassed into the suit property on 22.10.1988. Hence the suit for declaration of title and recovery of possession.

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Appellants 1, 2, 4 and 5 contended that the suit is barred by limitation since they have perfected title over suit property by adverse possession. They claimed that Krishnan Nair, their predecessor-in-interest was in possession of the suit property under an oral lease since 77 years back, Raghavan Nair got possession of the suit property about 50 years back from the said Krishnan Nair and after the death of Raghavan Nair, the suit property is being enjoyed by the second appellant.

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Trial court found against the contentions raised by the appellants and granted decree in favour of respondents 1 to 6 which the first appellate court has confirmed in A.S.No.42 of 2004.

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Almost on similar set of allegations, plaintiffs in O.S.No.320 of 1995 sought reliefs against the appellants in R.S.A.No.1138 of 2010 in respect of the suit property referred to therein. They claimed that the property belonged to their predecessor-in-interest, Raman Pillai as per the above said

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 3 :-

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partition deed. There also, appellants raised the same contentions. That suit also ended in a decree in favour of the plaintiffs which the first appellate court confirmed in A.S.No.99 of 2005. Hence R.S.A.No.1138 of 2010.

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I have heard learned counsel for appellants and learned counsel for respondents/plaintiffs.

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Learned counsel for appellants contends that it is elementary that in a suit for declaration of title and recovery of possession plaintiffs proved their title but in the present cases the document of title (partition deed No.3203 of 1110M.E) relied on by the respondents/plaintiffs is not produced. It is contended that nowhere appellants have admitted the title of respondents/plaintiffs and hence they were bound to produce the document of title relied on by them. Learned counsel has placed reliance on the decisions in Lachmi Narain Vs. Lachmi Narain and Anr. (AIR (35 1948 Oudh 139)) and Bangalore Turf Club Limited Vs. Regional Director, E.S.I Corporation (2009 AIR SCW 4738) . According to the learned counsel, since the respondents/plaintiffs followed Marumakkathayam law of Succession there are other members of the family who are entitled to a share in the suit properties but they are not made

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 4 :-

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parties to the suits. It is also argued that the receipt for payment of land revenue produced by the respondents/plaintiffs is not in their name and that other documents produced are the copy of order of the Appellate Authority in A.A.Nos.2407 and 2412 of 1976 and copy of order in C.R.P.Nos.1590 and 1781 of 1989. Those documents according to learned counsel would not confer/prove title for the respondents/plaintiffs. Learned counsel contended that as regards the plea of adverse possession raised by the appellants, no issue has been raised and no finding entered. The last argument advanced is a request for a remand to enable the appellants prove the documents that they have produced before the Land Tribunal.

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Learned counsel for respondents/plaintiffs contends that there is no dispute regarding the title of respondents/plaintiffs and that even according to the appellants, they obtained tenancy from the family of the respondents/plaintiffs. According to the learned counsel, neither in the trial court nor in the first appellate court, there was any dispute regarding title claimed by the respondents/plaintiffs and hence at this belated stage, the litigation having started in the year 1995, contention of appellants that respondents/plaintiffs

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 5 :-

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have not proved their title may not be entertained. Learned counsel has invited my attention to the order of the Appellate Authority in A.A.Nos.2407 and 2412 of 1976 and of this Court in C.R.P.Nos.1590 and 1781 of 1989.

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The decisions relied by the learned counsel and referred above say that in a suit on title, it is the obligation of the plaintiff to prove title and that plaintiff cannot succeed on the weakness of title or possession of the defendants.

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No doubt, the position of law is settled that in a suit on title it is the responsibility of the plaintiff to prove title and weakness of title claimed by the defendant is no ground to grant decree. But, every decision has to apply to the facts and circumstances of the case. A precedent is an authority for the case is actually decides.

¶51

In paragraph 1 of the plaint in O.S.No.319 of 1995 respondents/plaintiffs say that they are the legal representatives of Govinda Pillai of Oorilethu Kizhakkethil House, Mangalam Muri who later changed their residence to Chandappallil at Elanthoor. In paragraph 2 of the plaint, it is stated that the suit property (in both the cases) belonged to the said Govinda Pillai as per partition deed No.3203 of 1110 M.E of S.R.O, Chengannur

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 6 :-

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and that on the death of the said Govinda Pillai, the suit property devolved on his wife and children. Paragraph 3 of the plaint states that the suit property is part of 6 and odd Acres of paddy land which belonged to the deceased Govinda Pillai and that the entire property was being cultivated by Raman Pillai, brother of Govinda Pillai for long time. On his becoming old, his son Gopalan Nair started cultivating the suit property paying share of profits to Govinda Pillai and after his death, to his legal representatives. Paragraph 4 refers to Raghavan Nair, husband of the first appellant and father of appellants 2 to 4 unduly influencing the officers concerned causing suo moto proceeding to be initiated under the Kerala Land Reforms Act (for short, "the Act”) claiming tenancy right over the suit property. In the plaint in O.S.No.320 of 1995, similar allegations are made with the exception that it was Raman Pillai of Oorilethu Kizhakkethil House who got the property as per the same partition deed.

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It is necessary to refer to the contentions raised in the written statements in the said cases. There is no denial of the averments in paragraphs 1 and 2 of the plaint which I have stated above, and as regards the averments in paragraphs 3 and 4 of the plaint, what is contended is that entire statements therein are not

¶56

R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 7 :-

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correct. It is contended that the larger extent referred to therein including the suit properties was taken on oral lease by Krishnan Nair, predecessor-in-interest of the appellants from the real jenmi of the said properties and while the said Krishnan Nair became aged, he handed over possession of the property to Raghavan Nair who was paying rent to the real jenmi. Appellants claim as legal representatives of the said Raghavan Nair.

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Thus, it is seen that the averments in paragraphs 1 and 2 of the plaint as to the derivation of title claimed by the respondents/plaintiffs is not disputed at all. When specific averment in the plaint to the above effect is not disputed, I must accept that the said statements are admitted. Rule 5(1) of Order VIII of the Code of Civil Procedure also states so. Under Sec.58 of the Evidence Act, a fact which is admitted is not required to be proved. I am not inclined to think that the contentions in paragraph 3 of the written statement in anyway cuts down the said inference. In the order in A.A.Nos.2407 and 2412 of 1976 the Appellate Authority (Land Reforms) has extracted the contentions of appellants in the Land Tribunal that according to them, their predecessor-in-interest took the property on oral lease from Oorileth Kizhakkethil family (to which, as the

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 8 :-

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averments in paragraphs 1 and 2 of the plaint goes Govinda Pillai and Raman Pillai, the predecessor-in-interest of respondents/plaintiffs belong). Thus, it is clear from the contentions raised by the appellants in the Land Tribunal also that even according to them, the property belonged in jenm to Oorilethu Kizhakkethil family to which Govinda Pillai and Raman Pillai belonged.

¶63

It is relevant to refer to the common order passed by this Court in C.R.P.Nos.1590 and 1781 of 1989. There, in paragraph 1 it is stated that appellants/revision petitioners claimed to be in possession of the respective properties under the respondents (respondents/plaintiffs herein). In other words, when C.R.P.Nos.1590 and 1781 of 1989 were considered by this Court, there was no case that respondents/plaintiffs were not the landlords of the property.

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I must also notice that neither in the trial court nor in the first appellate court there was a contention raised by the appellants that the properties did not belong to the respondents/plaintiffs or, their predecessor-in-interest, Govinda Pillai and Raman Pillai as is evident from the fact that courts below have proceeded on the basis that the said fact is admitted

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 9 :-

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by the appellants.

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I have been given a copy of deposition of PW1, the third plaintiff in O.S.No.319 of 1995. In the proof affidavit he has referred to the title claimed by the respondents/plaintiffs under partition deed No.3203 of 1110M.E. It is seen that in cross examination the said statement in the proof affidavit is not challenged. The second appellant in R.S.A.No.1059 of 2008 who gave evidence as DW1 in O.S.No.319 of 1995 stated that his predecessor-in-interest took the property on lease from the real landlord but did not disclose who that landlord was.

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Thus, apart from the fact that the averments in paragraphs 1 and 2 of the plaint dealing with the derivation of title on respondents/plaintiffs not being disputed and thereby being admitted, circumstances show that appellants proceeded on the basis that the suit property belonged to the respondents/plaintiffs. The contention that other members of respondents/plaintiffs' family are also entitled to a share in the suit property is also not raised in the written statements. Hence the plea that respondents/plaintiffs have not established their title, cannot be entertained.

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 10 :-

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So far as the plea of adverse possession is concerned, true that no specific issue was raised by the trial court whether appellants have perfected title by adverse possession but it is seen that in O.S.No.319 of 1995 the trial court has framed an issue regarding the plea of limitation for the suit obviously based on the claim of adverse possession and in paragraph 10 of the judgment, trial court has discussed the claim of appellants as regards the adverse possession. The first appellate court in A.S.No.99 of 2005 arising from the judgment and decree in O.S.No.320 of 1995 has discussed the question in paragraphs 30 and 31 and found against it. Having set up a plea of tenancy under the predecessors-in-interest of respondents/plaintiffs and having failed in that, appellants cannot turn around and raise a plea of adverse possession.

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The last argument is for an opportunity to produce documents which appellants say would advance their case. As noticed above, the litigation started in the year 1995, there were proceedings before the Land Tribunal as well as in the Civil Court. At this distant time and having regard to the facts and circumstances stated above, I am not inclined to entertain the request that appellants must be given an opportunity to produce

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R.S.A.Nos.1059 of 2008 and 1138 of 2010

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-: 11 :-

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their documents and for that purpose, the case has to be send back.

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On hearing learned counsel on both sides, going through the judgments under challenge and also the copy of relevant documents given to me for perusal, I am not satisfied that any substantial question of law is involved in these second appeals.

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These second appeals are dismissed.

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Sd/- (THOMAS P. JOSEPH, JUDGE)

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Sbna/-

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/True Copy/

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P.A to Judge

Parukutty Amma Bhavani Amma v. Sarojini Amma

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Parukutty Amma Bhavani Amma v. Sarojini Amma

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