Partly allowed

Avarachan v. Peermade Tea Co.Ltd.

Kerala HC30 Oct 2018SA/645/1999

Case brief

AI extract

What is this about?

In a second appeal regarding suit for recovery of possession and injunction, the High Court largely confirmed the lower court's decree. However, it vacated the prohibited injunction component as the plaintiff lacked title and possession over specific survey numbers included in that property description.

What did the court decide?

The second appeal allowed in part; the decree of prohibitory injunction granted in favour of the plaintiff is vacated; the decree of recovery of possession by lower appellate court confirmed.

Avarachan Vs Peermade Tea Co.Ltd. — Property and Title | Kerala HC (2018)

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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 P.B.SURESH KUMAR

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TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940

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SA.No. 645 of 1999

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AGAINST THE JUDGMENT AND DECREE DATED 11-06-1999 IN AS 7/1997 of SUB COURT,KATTAPPANA

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AGAINST THE JUDGMENT AND DECREE DATED 13-12-1996 IN OS 227/1995 of MUNSIFF COURT,KATTAPPANA

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APPELLANTS/RESPONDENTS 1 TO 3 AND 5 TO 7/ DEFENDANTS 1 TO 3 AND 5 TO 7:

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1 AVARACHAN

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RESIDING AT ANAKUDY HOUSE, KOCHUKARUMTHARUVY PUTHUVAL, SEMNIVALLEY P.O., ELAPPARA VILLAGE, PEERUMEDU TALUK.

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2 KORA, RESIDING AT KAVUMKAL HOUSE, MALAY PUTHUVAL, CHEENTHALAR P.O., PASUPARA VILLAGE, PEERUMEDU TALUKK (DIED)

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(APPELLANT NO.2 IS DEAD AND HIS PERSONAL HEIRS NEED NOT BE IMPLEADED AS PER ORDER DATED 22/8/17 IN MEMO CF 5224/17 DATED 7/8/17.

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3 KUNJACHAN, ANAKUDY HOUSE, KOCUKARUMTHARUVY PUTHUVAL, SEMNIVALLEY P.O., ELAPPARA VILLAGE, PEERUMEDU TALUK.

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4 ST.MARY'S JACOBITE SYRIAN CHURCH, CHEENTHALAR, REPRESENTED BY BISHOP H.G. THOMAS MAR THIMOTHEOS METROPOLITAN, KOTTAYAM, JACOBITE BHAVANAM, SASTHRI ROAD, KOTTAYAM.

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5 FR.JOHN, VICAR, ST.MARY'S JACOBITE SYRIAN CHURCH, CHEENTHALAR, ELAPPARA.

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SA.No.645 of 1999

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6 K.V.MATHEW, KAVUMKAL HOUSE, TRUSTEE OF ST.MARY'S JACOBITE CHURCH, CHEENTHALAR (DIED)

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(APPELLANT NO.6 IS DEAD AND HIS PERSONAL HEIRS NEED NOT BE IMPLEDED AS PER ORDER DATED 22/8/17 IN MEMO CF 5224/17 DATED 7/8/17.

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ADDL. 7 K.P.SLEEBACHAN, TRUSTEE OF ST.MARY'S JACOBITE CHURCH, CHEENTHALAR.

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ADDL. 7TH APPELLANT IS IMPLEADED AS PER ORDER DATED 22/8/2017 IN IS 2173/2017.

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BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SMT.GEETHA P.MENON SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE

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RESPONDENTS/APPELLANT AND 4TH RESPONDENT/ PLAINTIFF AND 4TH DEFENDANT:

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1 PEERUMADE TEA COMPANY LIMITED A COMPANY INCORPORATED IN INIDA REGISTERED OFFICE AT TC 12/97 SILVER CAKS, PATTOM PALACE P.O., TRIVANDRUM - 695 004 AND CARRYING ON THE BUSINESS OF PLANTING IN PASUPARA VILLAGE, PEERUMEDU TALUK.

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2 K.V.SCARIA, ESTATE WORKER, RESIDING IN NO.1 DIVISION PIRMED ESTATE, CHEENTHALAR P.O., PASUPARA VILLAGE, PEERUMEDU TALUK.

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BY ADVS. R2 BY SRI.JOSEPH MARKOSE (SR.) R2 BY SRI.THOMAS VELLAPPALLY

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA.No.645 of 1999

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J U D G M E N T

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Defendants 1 to 3 and 5 to 7 in the suit are the

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appellants. The suit is one for recovery of possession and injunction. The case set out by the plaintiff in the plaint is that they obtained properties in survey Nos.274/11, 275, 944, 945, 946 and 336 of Pasupara village in terms of Ext.A2 sale deed; that the plaint schedule item No.1 property is a portion of the properties obtained by the plaintiff in terms of Ext.A2 sale deed; that the plaint schedule item No.1 property measuring 25.5 cents, comprises of 500 square links in survey No.274/11, 19 cents in survey No.336 and 6 cents in survey No.946; that the plaint schedule item No.3 property measuring 11.5 acres is also a portion of the properties covered by Ext.A2 sale deed; that the plaint schedule item No.3 property comprises of properties in survey Nos.274/11, 275, 944, 945 and 946 lying around the plaint schedule item

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SA.No.645 of 1999

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No.1 property and that the defendants who have no right whatsoever, in the plaint schedule properties have trespassed into the plaint schedule item No.1 property and erected the plaint schedule item No.2 structure. The plaintiff, therefore, sought on that basis a decree for recovery of possession of the plaint schedule item No.1 property from the defendants and for demolition of the plaint schedule item No.2 structure. They also sought a decree of permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule item No.3 property. The defendants contested the suit. According to them, the plaint schedule item Nos.1 and 3 properties are private forests vested in the Government and the plaintiff has no right whatsoever, over the same. The trial court though dismissed the suit, the appellate court reversed the decision of the trial court and decreed the suit as prayed for. Defendants 1 to 3 and 5 to 7 are aggrieved by the decision of the appellate court. Hence, this second appeal.

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Heard the learned Senior Counsel for the

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appellants as also the learned Senior Counsel counsel for the

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SA.No.645 of 1999

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first respondent, the plaintiff.

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The learned Senior Counsel for the

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appellants pointed out that the plaintiff claims title over 53.63 acres of property, comprising of 40.54 acres in survey No.274/11, 11.60 acres in survey No.946 and 1.49 acres in survey No.336 in terms of Ext.A2 sale deed and the plaint schedule item No.1 property, according to them, is a portion of the said 40.54 acres measuring 25.5 cents, comprising of 500 square links in survey No.274/11, 19 cents in survey No.336 and 6 cents in survey No.946. It was contended by the learned Senior Counsel that the Advocate Commissioner appointed in the suit has not identified the properties obtained by the plaintiff in the aforesaid three survey numbers in terms of Ext.A2 sale deed. Instead, it is stated that the Advocate Commissioner has only reported that the plaint schedule item No.1 property measuring 25.5 cents comprises under the aforesaid three survey numbers. According to the learned counsel, in so far as the Advocate Commissioner has not located the properties covered by Ext.A2 sale deed falling

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SA.No.645 of 1999

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within the aforesaid three survey numbers, it cannot be said that the plaint schedule item No.1 property as identified by the Advocate Commissioner is part of the property covered by Ext.A2 sale deed. If that be so, according to the counsel, the plaintiff is not entitled to the decree for recovery of possession of the plaint schedule item No.1 property. As regards the decree of injunction granted in favour of the plaintiff, it was contended by the learned Senior Counsel that though the plaintiff does not own any property in survey No.275 in terms of Ext.A2 sale deed, they claimed a decree of prohibitory injunction in respect of properties in survey No.275 as well by including the said properties also in the plaint schedule item No.3 property. According to the learned counsel, in so far as the plaintiff does not own property in Sy.No.275, the court below should not have granted a decree of injunction in respect of the plaint schedule item No.3 property which takes within its fold, the properties in Sy.No. 275 as well. It was also contended by the learned Senior Counsel, placing reliance on Ext.B2 notification issued under the Kerala Private Forests

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SA.No.645 of 1999

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(Vesting and Assignment) Act, 1971 ('the Act', for short), that portions of the properties comprise under survey Nos.274/11, 336 and 946 of Pasupara village are vested in the Government in terms of the provisions of the Act and insofar as the plaintiff claims that the entire properties in the said three survey numbers belong to them, the plaintiff is not entitled to the decree for recovery of possession sought by them in the suit without getting the properties vested in the Government under the Act identified.

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Per contra , the learned Senior Counsel for

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the first respondent/plaintiff contended that Ext.A3 extract of the Basic Tax Register would establish beyond doubt that the entire properties in survey Nos.274/11, 336 and 946 of Pasupara village are covered by Ext.A2 sale deed in favour of the plaintiff and that therefore, insofar as it is admitted by the defendants that the plaint schedule properties fall under the said survey numbers, it is unnecessary for the plaintiff to establish the identity of the property, especially when the defendants do not claim ownership over any property, in

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SA.No.645 of 1999

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those survey numbers. It was, however, conceded by the learned Senior Counsel that the plaintiff does not own any property in survey No.275 and that properties in the said survey number are also included in the plaint schedule item

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No.3. According to the learned Senior Counsel, the said survey number happened to be included in the plaint schedule item No.3 by mistake. As regards the contention advanced by the learned Senior Counsel for the appellants based on Ext.B2 notification, it was pointed out by the learned Senior Counsel for the first respondent that Ext.B2 notification has been challenged by the plaintiff before the Tribunal under the Act and that the same is not in force.

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Having heard the learned counsel on either side, the following substantial questions of law have been formulated for decision in the second appeal:-

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“(i) Whether the appellate court was justified in granting the plaintiff a decree for recovery of possession of the plaint schedule item No.1 property without the plaintiff establishing the identity of the properties obtained by them under the survey numbers under which

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SA.No.645 of 1999

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the said property falls?

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(ii) Whether the appellate court was justified in granting the plaintiff a decree for recovery of possession of the plaint schedule item No.1 property without the plaintiff establishing the identity of the properties covered by Ext.B2 notification?”

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(iii) Whether the appellate court was justified in granting the plaintiff a decree of permanent prohibitory injunction in respect of the properties not covered by their title deed when the plaintiff do not have a specific case that they are in possession of the said property as well?

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6. Question No.(i). Ext.A2 sale deed reveals that

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the plaintiff has obtained 40.54 acres of property in survey No.274/11, 11.60 acres of property in survey No.946 and 1.49 acres of property in survey No.336. The fact that the plaintiff has obtained, in terms of Ext.A2 document, properties in all the three survey numbers referred to above is not disputed by the defendants. Their case is only that the properties obtained by the plaintiff in terms of Ext.A2 document under

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SA.No.645 of 1999

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the said survey numbers have not been identified. According to them, without identifying the properties obtained by the plaintiff in terms of their title deed under the said survey numbers, it cannot be concluded that the plaint schedule item No.1 property which falls within the said survey numbers belongs to them. Ext.B2 is the extract of the relevant pages of the Basic Tax Register pertaining to the properties in the said survey numbers. The said document reveals that the total extent of properties available in the said survey numbers are 11.60 acres and 1.49 acres respectively. Ext.A2 sale deed indicates that the entire extent of properties in the said survey numbers are included therein. As far as the property in survey No.274/11 is concerned, the total extent shown in Ext.A3 is 40.74 acres, whereas Ext.A2 sale deed indicates that the plaintiff has obtained title over only 40.54 acres of property in the said survey number. It would, therefore, appear that an extent of 20 cents in the said survey number is not included in the title deed of the plaintiff. Placing reliance on the difference in the extent of property in the said survey

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SA.No.645 of 1999

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number, the learned Senior Counsel for the appellants contended that the possibility of the 500 square links of property in survey No.274/11 which forms part of the plaint schedule item No.1 property being a portion of the said 20 cents cannot be ruled out. According to the learned Senior Counsel, if the said possibility cannot be ruled out, the plaintiff cannot be granted decree for recovery of possession sought by them. Ext.A2 is the certified copy of the title deed of the plaintiff. Ext.A2 is in Malayalam. In the light of the aforesaid contention taken by the learned Senior Counsel for the appellants, in the course of hearing, the plaintiff has produced before this Court their original title deed. The original title deed of the plaintiff is one registered in English and it was found that Ext.A2 certified copy was issued in Malayalam in the light of the provision contained in Section 62 of the Registration Act. A perusal of the original of Ext.A2 sale deed indicates that the plaintiff has purchased the entire extent of property in survey No.274/11, namely, 40.74 acres and the extent of property shown in Ext.A2 is only a mistake.

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In the circumstances, it can be concluded that the entire property in survey Nos.274/11, 336 and 946 belongs to the plaintiff. In so far as the defendants had no case that the plaint schedule item No.1 property as identified by the Advocate Commissioner does not fall under the survey Nos.274/11, 336 and 946, according to me, it was unnecessary for the plaintiff to locate and identify the properties obtained by them in the aforesaid three survey numbers in terms of Ext.A2 document, for the purpose of seeking a decree for recovery of possession of the plaint schedule item No.1 property. Question No.(i) is thus answered against the appellants.

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Question No.(ii). Ext.B2 is a notification issued under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 ('the Rules', for short) and it is seen that the same takes within its fold portions of the properties under survey Nos.274/11, 336 and 946 of Pasupara village also. Under Section 6 of the Act, the custodian under the Act is required to cause the boundaries

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SA.No.645 of 1999

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of the private forest vested in the Government in terms of the Act to be demarcated. Sub-rule (1) of Rule 2A provides that demarcation of private forest in pursuance of Section 6 of the Act shall be effected by erecting cairns around the boundaries. Sub-rule (2) of Rule 2A provides that a notification specifying the details of the private forest, the boundaries of which have been demarcated such as survey and subdivision number if available and local name and describing its boundaries shall, immediately be published simultaneously in the village office, panchayat office, office of the forest Tribunal, range office, office of the divisional forest officer and the office of the custodian. As noted, Ext.B2 is a notification issued under Rule 2A of the Rules. A notification in the nature of Ext.B2 is contemplated only after demarcation of the private forest by erecting cairns along the boundaries. The defendants have no case that the plaint schedule item No.1 property or any portion thereof has been enclosed by erecting cairns. In the absence of any evidence to show that the plaint schedule item No.1 property or any portion thereof

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has been enclosed by erecting cairns by the forest officials, I do not think that it was obligatory for the plaintiff to cause the identification of the properties covered by Ext.B2 notification for getting the decree for recovery of possession sought in the suit. Further, the notification is one issued on 31/10/86. Ext.A3 extract of the Basic Tax Register in respect of the properties under the three survey numbers under which the plaint schedule item No.1 property falls is one issued on 20/1/88. If as a matter of fact, any portion of the properties under the said survey numbers is vested in the Government in terms of the provisions of the Act, corresponding extent would have been reduced from the total extent of property shown in Ext.A3 Basic Tax Register. As noted, the extent of properties shown in the Basic Tax Register in the said survey numbers is not seen reduced even after Ext.B2 notification. For the aforesaid reasons, Question No.(ii) is answered against the appellants.

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Question No.(iii). As noted, it is conceded by

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the learned Senior Counsel for the first respondent that the

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SA.No.645 of 1999

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plaintiff has no property in survey No.275. The plaint schedule item No.3 property is described in the plaint as a property comprising of various survey numbers including survey No.275 as well. In so far as the plaintiff has not established that they have title to the properties in survey No.275 and insofar as they have no case that they are in possession of the properties in the said survey number, according to me, the plaintiff is not entitled to the decree for injunction sought in respect of the plaint schedule item No.3 property. Question No.(iii) is thus answered in favour of the appellants.

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In the result, the second appeal is allowed in part. The decree of prohibitory injunction granted in favour of the plaintiff is vacated. In other respects, the decree passed by the lower appellate court is confirmed.

Sd/-

P.B.SURESH KUMAR

JUDGE

aks/11.10

Avarachan v. Peermade Tea Co.Ltd.

Case brief

What is this about?

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Avarachan v. Peermade Tea Co.Ltd.

Case brief

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