The High Court dismissed an appeal against a remand order. It rejected the appellants' contention that the plaintiff failed to prove title, holding that evidence established the plaintiff acquired the property.
The appeal was dismissed; interlocutory applications were closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937
FAO (RO).No. 211 of 2015 ()
---------------------------(AGAINST THE JUDGMENT IN AS.NO. 76/2014 OF SUB COURT, MANJERI) (AGAINST THE JUDGMENT AND DECREE IN OS.NO. 138/1995 OF MUNSIFF MAGISTRATE COURT, PERINTHALMANNA)
APPELLANT(S)/RESPONDENTS/DEFENDANTS:
1. POOTHARAMANNA VARIYATH SIVADASAN,AGED 53 YEARS, S/O.LAKSHMIKUTTY VARASSIAR, MELATTUR P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN- 679 326.
2. POOTHARAMANNA VARIYATH LAKSHMIKUTTY VARASSIAR, AGED 81 YEARS, D/O.MADHAVI VARASSIAR, MELATTUR P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN- 679 326.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.R.RAJESH KORMATH
RESPONDENT/APPELLANT/PLAINTIFF:
P.V.AYYAPPAN EZHUTHASSAN, AGED 69 YEARS, S/O.NARAYANAN EZHUTHASSAN, RESIDING AT VENGERI AMSOM, KARUVASSERI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 010.
BY ADV. SRI.K.B.SIVARAMAKRISHNAN (CAVEATOR)
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
P.B.SURESH KUMAR, J.
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F.A.O.(R.O.).No.211 of 2015.
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Dated this the 16th day of March, 2016.
J U D G M E N T
The defendants in a suit for recovery of
possession, injunction and damages for use and occupation are the appellants in this appeal. The respondent is the
plaintiff in the suit.
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defendants from trespassing into the plaint B schedule property which is the property remaining with him and a decree for damages for use and occupation of the plaint B schedule property were also sought.
3 . The plaint C schedule property originally belonged to Aattathrukkovil Devaswom and the same was outstanding on a lease in favour of Pootharamannu Wariam. As per Ext.A5 verumpattam deed, the second defendant who is a member of Pootharamannu Wariam obtained five items of properties from the Wariam including the plaint C schedule property. The plaint C schedule property is included as item Nos.4 and 5 in Ext.A5 verumpattam deed. Later, the properties of Pootharamannu Wariam were partitioned. Ext.A18 is the partition deed. As per Ext.A18 partition deed, a portion of the properties included as item Nos.4 and 5 in Ext.A5 were allotted to the share of the children of the second defendant by including i n the B schedule to the said document. Though there is a recital in
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Ext.A18 that the properties included as item Nos.4 and 5 i n Ext.A5 verumpattam deed have been included in schedules A and B to the said partition deed, schedule A to the said partition deed comprises of the properties allotted to the second defendant does not contain the description of the remaining properties covered by item Nos.4 and 5 of Ext.A5 verumpattam deed. However, it is recited in Ext.A18 that the tharwad is not retaining any right in respect of item Nos.4 and 5 properties in Ext.A5 verumpattam deed thereafter and that the rights in respect of the said properties are given to the second respondent and he r children absolutely . Schedule B to Ext.A18 partition deed in which a portion of the property covered by item Nos.4 and 5 in Ext.A5 verumpattam deed is included indicates that the total extent of property included in the said schedule is only 104 cents, comprising of an item measuring 11 cents and another item measuring 93 cents, whereas the recitals of Ext . A5 verumpattam deed indicates that the total extent of
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property dealt with therein is 1 acre and 38 cents. In other words, a combined reading of Ext.A5 verumpattam deed and Ext.A18 partition deed would indicate that the property dealt with in Ext.A5 excluding the property allotted to the daughters of the second defendant as per Ext.A18 was retained by the second defendant herself. On the same day on which Ext.A18 partition deed was executed, as per Ext.A6 release deed, the second defendant had released her leasehold right in respect of the property included in B schedule to Ext.A18 in favour of her children.
4 . Later, on 25/5/1994, as per Ext.A1
assignment deed executed by the second defendant on behalf of h er minor children, the property included in schedule B to Ext.A18 and Ext.A6 have been assigned by her to the plaintiff. The extent of the property conveyed by the second defendant to the plaintiff is the very same extent of property shown in schedule B to Ext.A18 namely 104 cents. Later, on 18.6.1997, as per Ext.A2 assignment deed,
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the second defendant conveyed another extent of 104.5 cents to the plaintiff. It is seen that since the second defendant had only leasehold right in respect of the property covered by Exts.A1 and A2 assignment deeds, the plaintiff applied for and obtained purchase certificate in respect of the properties dealt with in the said documents. It is seen that the plaintiff has been issued purchase certificate by the Land Tribunal concerned only in respect of 1.15 acres of land in survey No.90/2 of Melattoor village. Thereupon, the plaintiff sold 17 cents out of the properties covered by Ext.A1 to his brother. The suit was filed thereafter alleging that on 2.8.1995, the defendants have trespassed into a portion of the properties conveyed by the second defendant to him.
5. The first defendant is the son of the second
defendant. The defendants resisted the suit by filing a written statement. The main contention raised by the defendants in the written statement filed by them was that
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the suit properties are not identifiable. They also contended that the plaint A schedule property is not part of the property covered by Exts.A1 and A2 sale deeds. They further contended that the first defendant has obtained a purchase certificate in respect of the plaint A schedule property and that the plaintiff is therefore not entitled to any relief in respect of the plaint A schedule property. Alternatively, the defendants have contended that if it is found that the plaintiff has title over the plaint A schedule property, they have perfected title to the same by adverse possession and limitation.
6 . Initially, the trial court dismissed the suit. However, in appeal, the appellate court reversed the decision of the trial court and decreed the suit. The defendants challenged the decision of the appellate court before this court in RSA.No.50 of 2008. This Court, on an elaborate consideration of the facts and circumstances, found that there was no attempt on the part of the plaintiff
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to identify the suit properties with reference to the title deeds and that therefore, the suit has to be decided afresh by the trial court. Thereupon, the trial court considered the matter afresh and dismissed the suit holding that the plaintiff has not established title to the plaint A schedule property. The plaintiff took up the matter in appeal. The appellate court though reversed the decision of the trial court that the plaintiff has not established title to the plaint A schedule property, remitted the suit for fresh disposal by the trial court on the ground that the plea of adverse possession raised by the defendants has not been considered by the trial court. Defendants 1 and 2 are aggrieved by the said order of remand and hence this appeal.
7. Heard the learned counsel for the appellants as also the learned counsel for the respondent.
8. The learned counsel for the appellants vehemently contended that the suit being a suit on title for
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recovery of possession, it was obligatory for the plaintiff to establish his title to the property sought to be recovered and the materials on record do not indicate that the plaintiff has established title to the plaint A schedule property. To substantiate the said contention, the learned counsel for the appellants brought to my notice the various deficiencies in the case set up by the plaintiff. It was pointed out by the learned counsel for the appellants that the extent of property is shown in Ext.A5 at one place as 1 acre and 38 cents and at another place as 1 acre and 46 cents. According to the learned counsel, while the maximum property that could be conveyed on the strength of Ext.A5 being only 1 acre and 46 cents, what was conveyed on the strength of the said document as per Exts.A1 and A2 assignment deeds are 1 acre and 4 cents and 1 acre and 4.5 cents respectively. It was also brought to my notice that though the extent of the properties shown in Exts.A1 and A2 are 1 acre and 4 cents and 1 acre and 4.5 cents
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respectively, the plaintiff could obtain purchase certificate only in respect of 1 acre and 15 cents. According to the learned counsel, admittedly, out of the said 1 acre and 15 cents, the plaintiff sold 17 cents of property to his brother on 19.10.1982 as per Ext.A4 assignment deed and what is remaining with him is only 98 cents. He also brought to my notice that during the pendency of the suit, a dispute arose between the plaintiff and the revenue officials as to the right of the plaintiff to remit land tax and the said dispute was resolved by this Court as per Ext.A19 judgment by which the revenue officials were directed to measure the properties in the possession of the plaintiff and accept land tax for the property found to be in the possession of the plaintiff. According to the learned counsel, pursuant to Ext.19 judgment, the property in the possession of the plaintiff was measured and found to be only 82 cents. It is his case that the plaintiff has remitted land tax thereafter only in respect of the said property measuring 82 cents.
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The learned counsel has further brought to my notice the plan prepared by the Advocate Commissioner appointed pursuant to the order of remand passed by this Court as per the judgment in R.S.A.No.50 of 2008. It was shown to me that going by the identification made by the Advocate Commissioner, the plaintiff who has only 98 cents of property was found to be in possession of 1 acre and 2.5 cents of property, excluding the plaint A schedule property and that therefore there is absolutely no basis for the case set up by him that the plaint A schedule property is part of the property covered by Exts.A1 and A2 sale deeds. According to the learned counsel, in the absence of any explanation from the plaintiff as to the reason for not obtaining purchase certificate in respect of the entire exten t of property covered by Ext.A1 and Ext.A2 assignment deeds, the plaintiff is not entitled to any relief in respect of plaint A schedule property. The upshot of the contentions raised by the learned counsel for the appellants is that both
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Exts.A1 and A2 documents have been executed only in respect of the same property for which the plaintiff has obtained purchase certificate from the Land Tribunal. The learned counsel for the appellants buttressed the said contention by referring to the report of the advocate Commissioner inspected in the property pursuant to the decision of this court in RSA.No.50 of 2008 that he could not identify the property covered by Ext.A2 sale deed and consequently the suit properties have been identified and shown in Ext.C2(a) plan as shown by the plaintiff.
9. Per contra, the learned counsel for the respondent contended that Ext.A5 verumpattam deed which is the basic document itself indicates that the total extent of the property included a s item Nos.4 and 5 in the said document is only 1 acre 38 cents. According to the learned counsel, out of the said 1 acre and 38 cents, the second defendant has conveyed 1 acre and 4 cents to the plaintiff as per Ext.A1 document. There was an earlier suit by the
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brother of the plaintiff against the plaintiff for a declaration that Exts.A1 and A2 documents are in fact obtained by his father in the name of the first defendant and that therefore he has also a right in the said properties. Ext.A7 is the deposition of the second defendant in the said suit namely, O.S.No.99 of 1989. In Ext.A7 deposition, the second defendant has categorically stated that she had transferred the entire property held by her except 3 cents to the plaintiff. On the basis of the said deposition, it was contended by the learned counsel for the respondent that what was conveyed by the second defendant to the plaintiff as per Ext.A2 document is the remaining 34 cents held by the second defendant. He conceded that the extent of the property shown in Ext.A2 sale deed is a mistake. The learned counsel for the respondent also pointed out that the said properties have been correctly identified by the Advocate Commissioner in Ext.C2(a) plan.
10. I have examined the rival contentions of the
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parties. As rightly pointed out by the learned counsel for the respondent, Ext.A5 is the first available document as far as the plaint schedule properties are concerned. As noted above, Ext.A5 was the verumpattam deed obtained by the second defendant from the Pootharamannu warriam. The description of the property included in item Nos.4 and 5 in the said document clearly indicates that the total extent of property dealt with therein was 1 acre 38 cents, though the metric measurements shown in the document would indicate that the extent of property is 1 acre and 46 cents. As noted above, the extent of the property included in B schedule to Ext.A18 partition deed towards the share of the children of the second defendant is 104 cents comprising of an item measuring 93 cents and another item measuring 11 cents. Ext.A6 document executed by the second defendant on the same day on which Ext.A18 was executed for the purpose of releasing her right in respect of the property included in schedule B to Ext.A18 partition deed contains the very same
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description. Ext.A1 assignment deed executed by the second defendant on behalf of her minor children in favour of the plaintiff also contains the very same property description. In other words, it is beyond doubt that what is conveyed by the second defendant to the plaintiff as per Ext.A1 is the property allotted to the share of the children of the second defendant as per Ext.A18, namely, 104 cents. As noted above, the essence of the contentions raised by the learned counsel for the appellants is that Ext.A2 is also executed in respect of the very same property. Though it is not possible to identify the property included in Ext.A2 conclusively going by the description shown therein, the boundary descriptions in the said document indicate that the property dealt with therein is the property situated on the northern side of the property in the possession of the plaintiff. In other words, Ext.A2 is a document executed in respect of a property situated on the south of the property co nveyed to the plaintiff as per Ext.A1 assignment deed.
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True, that by itself may not be sufficient to hold that the plaintiff has acquired title to the plaint A schedule property. In this context, the rival claim of title set up by the defendants also needs to be considered. The case of the defendants is that they have obtained a purchase certificate in respect of the property shown as plot D by the Advocate Commissioner in Ext.C2(a), which according to the plaintiff, is the plaint A schedule property. Ext.B2 is the purchase certificate obtained by the first defendant who is the son of the second defendant in respect of the said plot on the strength of a settlement deed executed by the second defendant in his favour. As noted above, the total extent of the property which the second defendant had was only 1 acre and 38 cents and out of the said property, there is no dispute to the fact that 1 acre and 4 cents of property has been given by the second defendant to her children by virtue of Ext.A6 release deed. It is also beyond dispute that the said property has been conveyed by the second
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defendant to the plaintiff as per Ext.A1 assignment deed. As such, what remains with the second defendant thereafter was only 34 cents. The specific case of the plaintiff is that the second defendant has conveyed the said 34 cents also to the plaintiff as per Ext.A2 sale deed, though the extent of the property is wrongly shown in the document is 1 acre and 4.5 cents. In this context, the evidence tendered by the second defendant in O.S.No.99 of 1989 assumes relevan ce. In the said suit, the second defendant has categorically stated that she had conveyed the entire property in her possession to the plaintiff excluding three cents. As noted above, the boundary description of the property conveyed as per Ext.A2 sale deed also probabilises the case of the plaintiff that the property remaining with the second defendant after Ext A6 release deed has been conveyed by the second defendant to the plaintiff. If that be so, the second defendant had no property at all to convey to the first defendant so as to enable him to obtain purchase
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certificate in respect of the same. The second defendant has no case that the first defendant has obtained purchase certificate in respect of a property not covered by Ext.A5 verumpattam deed. In the said facts and circumstances, I do not find any infirmity in the conclusion arrived at by the appellate court that the plaintiff has established title to the plaint A schedule property.
In the said view of the matter, there is no merit in the appeal and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.
Sd/- P.B.SURESH KUMAR,
JUDGE.
Kvs/-
// true copy //
PA TO JUDGE.
3 issues framed by the court
Whether the plaintiff has established title to the plaint A schedule property.
Whether the defendants have acquired title via adverse possession or purchase certificate.
Whether the assignment deeds Exts.A1 and A2 convey valid title considering discrepancies in extent.
Pootharamanna Variyath Sivadasan
Pootharamanna Variyath Lakshmikutte Varassi
P.V. Ayyappan Ezhuthassan
P.B. Suresh Kumar
As recorded by the court registry
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