Dismissed

Harrisons Malayalam Ltd. v. Paramel Mohammed

Kerala HC17 Nov 2016RSA/758/2003

Case brief

AI extract

What is this about?

In a regular second appeal regarding a suit for declaration and recovery of possession of agricultural land, the Court dismissed the appellant's challenge. It upheld the Lower Appellate Court and Land Tribunal findings that the appellant failed to establish title, holding that the defendant was entitled to a purchase certificate and tenancy rights.

What did the court decide?

The Regular Second Appeal stands dismissed; plaintiff is not entitled to recover possession of the plaint B schedule property.

Harrisons Malayalam Ltd. Vs Paramel Mohammed — Land Acquisition | Kerala HC (2016)

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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 K.HARILAL

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THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

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RSA.No. 758 of 2003 (F)

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AGAINST THE JUDGMENT IN AS.4/1998 of SUB COURT, SULTHAN BATHERY

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AGAINST THE JUDGMENT IN OS.291/1990 of MUNSIFF COURT, KALPETTA

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APPELLANT(S):

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HARRISONS MALAYALAM LTD., CHUNDALE ESTATE, VYTHIRI TALUK WAYANAD DISTRICT

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BY ADVS. SMT.PRIYA MAHESH

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RESPONDENT(S):

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PARAMEL MOHAMMED, EX-WORKER, CHUNDALE ESTATE CHUNDALE DIVISION, CHUNDALE POST & VILLAGE VYTHIRI TALUK, WAYANAD DISTRICT

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R, BY ADV. SRI.THOMAS ANTONY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.758 of 2003

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Dated this the 17^th day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The plaintiff is a company by name Harrisons Malayalam Limited. According to the plaintiff, plaint A schedule property having an extent of 218.22 acres of property belongs to the company by virtue of the assignment deed executed in the year 1923. The plaintiff has effected vast and valuable improvements in the property. Plaint B schedule property is a part of plaint A schedule property. Except the plaintiff, nobody else has got any right over the plaint schedule property. But, on 10.05.1987, the defendant illegally trespassed into plaint B schedule property and reduced it into his unlawful possession. So, the plaintiff is entitled to get recovery of plaint B schedule property with mesne profit. Hence, the

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RSA.758/2003

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plaintiff prayed for a declaration that the entire proceedings leading to the issuance of purchase certificate to the defendant in SMC.553/1988 purporting to cover plaint B schedule property is null and void and not valid and to issue a direction to the defendant to surrender the possession of plaint B schedule property after identification of the same by the Commissioner to be appointed in the suit.

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In the written statement, the defendant contended that the description of plaint A and B schedule properties are incorrect. It is denied that on 10.05.1987, defendant reduced B schedule property into his possession. The defendant is having an extent of one acre in the survey number shown in the plaint and the plaintiff has no right over the same. It is denied that plaint B schedule property is the part of plaint A schedule property. The property in possession of the defendant, which is described as B schedule in the plaint, is in his possession from 1960 onwards and the defendant has got a purchase certificate

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RSA.758/2003

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with respect to B schedule property in SMC.553/1988, a suo motu proceedings initiated by the Government under the Kerala Land Reforms Act. So, the plaintiff is not entitled to recover possession of plaint B schedule property. The defendant has been paying basic tax for the said property.

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In view of the contentions raised in the written statement, the plaintiff has sought for a reference under Section 125(3) of the Kerala Land Reforms Act to determine the title of the defendant under the Kerala Land Reforms Act. After reference, the Land Tribunal considered the title and possession of the defendant under the Kerala Land Reforms Act and filed a reference order stating that defendant is entitled to tenancy right under the Kerala Land Reforms Act.

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On receipt of the reference order, trial was conducted and both parties adduced evidence consisting of oral testimonies of PW1 and DW1 and Exts.A1 to A4 and C1 to C3. After considering the aforesaid evidence on record,

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RSA.758/2003

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the trial court decreed the suit in part and declared that the certificate of purchase obtained by the defendant in pursuance of SMC.553/1988 of Land Tribunal, Kalpetta is not valid and binding upon the plaintiff. But, the plaintiff's claim over the plaint B schedule property is dismissed on a finding that the plaintiff has failed to establish title and possession over B schedule property. Even though the plaintiff has preferred an appeal before the lower appellate court, the lower appellate court also dismissed the appeal on a finding that the plaintiff failed to establish the title and possession over B schedule property. The legality and propriety of the findings of the courts below are challenged in this Regular Second Appeal.

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Heard learned counsel for the appellant.

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The sum and substance of the argument

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advanced by the learned counsel for the appellant is that the courts below failed to appreciate the reference order under Section 125(3) of the Kerala Land Reforms Act in its correct

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RSA.758/2003

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perspective. It is the specific case of the plaintiff that B schedule property forms part of A schedule property having an extent of 218.22 acres of property. But, according to the plaintiff, on 10.05.1987, the defendant illegally trespassed into the B schedule property and reduced it into his unlawful possession. Indisputedly, no evidence has been adduced to establish such a trespass on 10.05.1987. On the other hand, it is the specific case of the defendant that he has been in possession and enjoyment of the plaint B schedule property from 1960 onwards and he has obtained a purchase certificate in SMC.553/1988 and the same was a suo motu proceedings initiated, by the Government under the Kerala Land Reforms Act. After due enquiry, the Land Tribunal had issued a purchase certificate to him under Section 72(k) of the Kerala Land Reforms Act. Going by Ext.X1 file of the Land Tribunal, Kalpetta in SMC.553/1988, it could be seen that the said purchase certificate was issued after due enquiry contemplated under the Kerala

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RSA.758/2003

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Land Reforms Act, though the plaintiff is not a party in that proceedings.

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It is pertinent to note that it is the specific case of

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the defendant that B schedule property does not form a part of A schedule property that belongs to the plaintiff. However, in spite of the issuance of a purchase certificate under Ext.X1 proceedings in favour of the defendant, the Munsiff's court again referred the matter for the determination of tenancy right and the entitlement of fixity of tenure, under Section 125(3) of the Kerala Land Reforms Act, to the Tribunal. Thereafter, the Land Tribunal again considered the question of tenancy and found that the defendant has occupied plaint B schedule property in the year 1960 with the silent consent of the plaintiff and thereafter, he is cultivating and continuing possession till now. In the reference order, it is specifically stated that even

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though the reference was on the application of the defendant, the plaintiff has not produced any relevant

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RSA.758/2003

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records to prove their right, title and possession over the plaint schedule property. Thus, in the absence of any evidence from the part of the plaintiff, the Tribunal relied on the report of the authorised officer and the documents produced by the defendant and arrived at a conclusion that the defendant had occupied the plaint B schedule property in the year 1960 and thereafter, he has been cultivating and continuing possession till now.

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Going by Ext.X1 file, it could be seen that the defendant has been paying property tax for the plaint B schedule property and the Village Officer has issued a certificate stating that the defendant is in possession of the property. In the absence of any evidence contrary to the evidence adduced by the defendant, the Tribunal is justified in passing the reference order, on the basis of the available evidence on record, which was produced by the defendant alone. I do not find any kind of illegality or impropriety in passing such an order by the Land Tribunal, in the absence

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RSA.758/2003

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of any evidence from the part of the plaintiff.

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Going by Ext.C3 survey plan, it shows that the

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plaint B schedule property, which stands in possession of the defendant, is comprised in Survey No.2/4 and the tenancy right had been given to the defendant with respect to the said property. The plaintiff has failed to establish that he has got the entire property in Survey No.2/4 as per Ext.A1. Therefore, as rightly held by the trial court, it cannot be said that the plaint B schedule property is a part of A schedule property and also the plaintiff has got title over the plaint B schedule property. That apart, it has come out that Ext.A1 title deed of the plaintiff does not contain all the old survey numbers mentioned in Ext.A2 extract of Adangal. So, it cannot be said that the plaintiff has got title over the entire plaint A schedule property. After evaluating the materials on record, the lower appellate court also held that there is absolutely no material on record to challenge the findings of the Land Tribunal and in that view of the matter,

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RSA.758/2003

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the plaintiff is not entitled to recover the possession of plaint B schedule property.

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Being a Second Appeal, the scope of interference of this Court is confined to the question of law only and this Court is not inclined to re-appreciate the entire evidence on record once again. In the absence of any kind of perversity in the appreciation of evidence and question of law, I do not find any reason to interfere with the findings of the court below.

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Hence, this Regular Second Appeal will stand dismissed accordingly.

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Sd/- (K. HARILAL, JUDGE)

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aks/DST/18/11

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// True Copy //

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PA to Judge

Harrisons Malayalam Ltd. v. Paramel Mohammed

Case brief

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Harrisons Malayalam Ltd. v. Paramel Mohammed

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