Peekkara Veetil Kunhiraman(Died,Lhrs Impleaded) Vs Thekkeveetil Narayanan

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RSA NO. 565 OF 2011

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2025:KER:30648

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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 M.A.ABDUL HAKHIM

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MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947

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RSA NO. 565 OF 2011

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AGAINST THE JUDGMENT AND DECREE DATED 05.02.2011 IN AS NO.30 OF

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2010 OF SUB COURT, HOSDRUG

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ARISING OUT OF THE JUDGMENT AND DECREE DATED 24.11.2010 IN

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OS NO.152 OF 2008 OF MUNSIFF COURT, HOSDRUG

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APPELLANTS/RESPONDENT/PLAINTIFF:

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1 PEEKKARA VEETIL KUNHIRAMAN(DIED,LHRS IMPLEADED)
S/O.P.V.AMBU, RESIDING AT BANGALAM,, PEROLE VILLAGE,
P.O.BENGALAM, HOSDURG TALUK,, KASARAGOD DISTRICT.

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SUPPL.A2 C.V.THANKAMANI AGED 58 YEARS

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D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 58 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A3 C.V LEELA

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D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 54 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A4 C.V VILASINI,

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D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 52 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A5 C.V DAMODHARAN,

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S/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 50 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A6 C.V RAJENDRAN

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S/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 47 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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RSA NO. 565 OF 2011

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SUPPL.A7 C.V LATHIKA,
D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 44 YEARS,RESIDING AT
CHALUVALAPPIL HOUSE,THEKKAN BANGALAM,MADIKAI VILLAGE,HOSDURG
TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A8 P.V NARAYANI,
D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 70 YEARS,RESIDING AT
PUTHIYAVEETTIL HOUSE,THEKKAN BANGALAM,MADIKAI
VILLAGE,HOSDURG TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A9 C.RATHEESH,
S/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 37 YEARS,RESIDING AT
PUTHIYAVEETTIL HOUSE,THEKKAN BANGALAM,MADIKAI
VILLAGE,HOSDURG TALUK,KASARAGOD DISTRICT-671314.

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SUPPL.A10 P.V.RANJINI,
D/O PEEKKERA VEETTIL KUNJIRAMAN,AGED 33 YEARS,RESIDING AT
PUTHIYAVEETTIL HOUSE,THEKKAN BANGALAM,MADIKAI
VILLAGE,HOSDURG TALUK,KASARAGOD DISTRICT-671314.

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(THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS
SUPPL. APPELLANTS 2 TO 10 AS PER ORDER DATED 20.05.2020 IN
IA 1/2020.)

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BY ADV M.GOPIKRISHNAN NAMBIAR

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RESPONDENT/APPELLANT/DEFENDANT:

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THEKKEVEETIL NARAYANAN

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S/O.MANI AMMA, RESIDING AT ANGOKALARI HOUSE,,
PUTHIRIYEDAKKAM, PEROLE VILLAGE,, P.O.PUTHIRIYADAKKAM,
HOSUDRG TALUK, KASARAGOD DISTRICT.

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BY ADV SRI.SURESH KUMAR KODOTH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The plaintiff in a suit for permanent prohibitory injunction is the appellant. The plaint schedule property originally is shown as 85 cents of land in R.S.No.181/2 of Perole village. After the filing of the Ext.C1 Commission Report and Ext.C1(a) Plan, the extent was amended as 79.388 cents of land. Both sides admit that the Jenmom right of the plaint schedule property belonged to Vettakkorumakan Devaswom.

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The plaintiff claimed that the plaintiff obtained kuzhikanam right over the plaint schedule property 50 years back. The defendant obtained Purchase Certificate with respect to an extent of 2 Acre 50 cents of land including the plaint schedule property as per order in I.A.No.10919/75. Immediately upon knowing the issuance of the Purchase Certificate, the plaintiff filed an Appeal before the appellate authority, and the same is pending consideration. The plaintiff is in possession and enjoyment of the plaint schedule property and paying government taxes and rent to the jenmi and making improvements. The plaint schedule property consists of

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improvements like jack tree, Kurukuthi tree cultivated by the plaintiff. The cause of action for filing the suit is that the defendant trespassed into this property on 06.04.2008 and cut the trees in the plaint schedule property and he tried to take possession of the property.

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The defendant opposed the suit prayers by contending inter alia that the plaintiff is a proxy of the defendants in O.S.No.32/1996 filed by the plaintiff for recovery of possession. The defendant obtained delivery of the property on 27.10.2007. According to the defendant, the defendant obtained kuzhikanam right orally from the Vettakkorumakan Devaswom, Nileswar and had been regularly paying the purappad to the jenmee and thereafter purchased the jenm right as per order in O.A.No.10919/75. The plaintiff is a total stranger to the plaint property and he has no right title or possession over the property.

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On the side of the plaintiff, the plaintiff was examined as PW1 and his son was examined as PW2. Exts.A1 to A7 were marked from the side of the plaintiff. No oral evidence was adduced from the side of the defendants. But Exts.B1 to B15 documents

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were marked from the side of the defendant. The Commission Report was marked as Ext.C1 and the Rough Sketch was marked as Ext.C1(a).

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The Trial Court decreed the suit in favour of the plaintiff restraining the defendant by a permanent prohibitory injunction from trespassing into the plaint schedule property and cutting the existing trees and putting fire to the leaves and committing waste and damages.

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The defendant filed Appeal before the First Appellate Court and the same was allowed setting aside the judgment and decree of the Trial Court and dismissing the suit.

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Both the Trial Court as well as the First Appellate Court found that there is no dispute with regard to the identity of the property.

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The Trial Court found that the plaintiff has got possession over the plaint schedule property as Ext.B1 to B10 documents produced by the defendant are not binding on the plaintiff as he was not a party to the said proceedings. The Trial Court also found that no oral evidence was adduced from the side of the defendant to prove the possession over the suit property.

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2025:KER:30648 Exts.A1 to A5 proved the possession of the suit property.

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The First Appellate Court found that the possession of the plaint schedule property could not be found in favour of the plaintiff as Exts.A1 to A5 do not show that the same relates to the plaint schedule property. The plaintiff has not explained the difference of the extent in the plaint schedule property and the property identified by the Advocate Commissioner. It is also found that the plaintiff did not make necessary pleadings with respect to the tenancy claimed by the plaintiff. No reason is stated for not obtaining a Purchase Certificate even after the advent of the Kerala Land Reforms Act. Even though no attempt was made by the defendant to tender evidence in the matter, the plaintiff did not discharge his burden to prove his title and possession over the plaint schedule property.

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This Court admitted the Appeal on the following substantial question of law:

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Whether the First Appellate Court was justified in reversing the decree for injunction granted by the trial court, without proper appreciation of the evidence and ignoring the fact that Exts.B1 to B5 are not proved to be in respect of plaint schedule

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property and no oral evidence was tendered by the respondent and appellant by his evidence and production of Exts.Al to A5 showed that he has been in possession of the property.

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I heard the learned counsel for the appellants, Sri. Gopikrishnan Nambiar and the learned counsel for the respondent, Sri.Suresh Kumar Kodoth.

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The learned counsel for the appellants contended that Exts.A1 to A5 prove that the plaintiff has tenancy arrangement with the jenmi. There is no dispute with regard to the jenmom right over the plaint schedule property. It is vested with the Devaswom. When it is proved that the plaintiff has obtained tenancy right from the jenmi, in the absence of any contention from the defendant that the plaintiff is never dispossessed from the plaint schedule property, the only inference is that the plaintiff continued with the possession over the plaint schedule property. Even though the defendant produced Exts.B1 to B15 documents, the defendant did not mount the box to prove those documents properly. The said documents are not binding on the plaintiff as the plaintiff was not a party to the said proceedings. Even though the defendant obtained Purchase Certificate, the

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same is also not binding on the plaintiff as the said Purchase Certificate was obtained without notice to the plaintiff. The plaintiff filed Appeal before the Appellate Authority immediately on getting knowledge of the Purchase Certificate obtained by the defendant. Exts.A1 to A5 would show that the plaintiff obtained tenancy right over 85 cents of land in survey No.181/2 of Perole village. The Trial Court considered the matter in the right perspective and granted decree in favour of the plaintiff and the First Appellate Court illegally interfered with the finding of the Trial Court and set aside the judgment and decree of the Trial Court. When Exts.B1 to B15 is eschewed, there is no evidence on the part of the defendant to prove his title or possession over the plaint schedule property. There is only a minor discrepancy in the boundaries of the property identified by the Advocate Commissioner. The said minor discrepancy is not at all relevant or material and there is no dispute from the part of the defendant with regard to the identity of the plaint schedule property. The only evidence available before the court is the Exts.A1 to A5 documents which would prove that it is the plaintiff who is having possession over

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2025:KER:30648 the plaintiff schedule property. It is true that there are some contradictions in the evidence of the plaintiff. When the plaintiff was examined as PW1, he was aged more than 80 years

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and hence the contradictions are to be ignored reading the evidence as a whole. The evidence of PW1 was supplemented by the evidence of PW2 son also. The learned counsel cited the decision of the Hon'ble Supreme Court in Salem Municipality v. P. Kumar & Ors. [(2019) 13 SCC 307] to substantiate the point that there is presumption in continuity of facts once shown to have prevailed, unless discontinuity is proved. Here, in view of Exts.A1 to A5 documents, the continuity of the possession of the plaint schedule property is proved and in the absence of any discontinuity or possession, the same is to be accepted as proving possession in favour of the plaintiff. The learned counsel further cited the decision of the Hon'ble Supreme Court in M. Kallappa Setty v. M.V.Lakshminarayana Rao [AIR 1972 SC 2299] to substantiate the point the plaintiff is entitled to protect his possession as against persons who have no better title than

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2025:KER:30648 himself to the suit property. The learned counsel further cited

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the decision of the Hon'ble Supreme Court in Nair Service Society Ltd. v. Rev. Fr. K.C. Alexander [AIR 1968 SC 1165] to substantiate the point that a person who has possession of land has got good title against the whole world except the true owner and that when an injunction is granted it is only against the defendants and not against any other person. Here, the plaintiff is seeking injunction only against the defendant and in the absence of any evidence to show that the defendant is in possession of the plaint schedule property, the plaintiff is entitled to succeed in the suit.

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On the other hand the learned counsel for the respondent contended that Exts.B1 to B15 documents would prove that the plaintiff is a proxy of the defendants in O.S.No.32/1996 filed by the defendant herein for recovery of possession of the plaint schedule property. Admittedly, the defendant has obtained a Purchase Certificate with respect to the property, including the plaint schedule property. In view of Section 72(K) of the Kerala Land Reforms Act, it is conclusive proof as to the title of the defendant. The tenancy right claimed by the defendant is

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2025:KER:30648 extensively considered in Ext.B1 judgment and found in favour of the defendant. It is clear from Ext.B1 judgment that the defendant obtained tenancy from the jenmi and on the strength of the said tenancy right, the defendants obtained a Purchase Certificate from the Land Tribunal. Even though the plaintiff filed Appeal before the Appellate Authority challenging the Purchase Certificate, the same was dismissed. PW1 admitted that Exts.B1 to B15 documents relate to the very same property and the said documents are binding on the plaintiff. In view of the evidence before the court, the First Appellate Court was right in setting aside the judgment and decree of the Trial Court dismissing the suit.

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I have considered the rival contentions.

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The plaint schedule property originally shown in the plaint as 85 cents of land situated in survey No.181/2 of Perole village. Both sides admit that the plaint schedule property belonged to Vettakkorumakan Devaswom. According to the plaintiff, the plaintiff obtained kuzhikanam right from the jenmi. According to the defendant, the defendant obtained kuzhikanam right from the jenmi. In order to prove the tenancy right under the

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2025:KER:30648 jenmi, the plaintiff has produced Exts.A1 to A5 documents. Exts.A1 to A3 are Purappad receipts of the years corresponding to the English calender 1951, 1953 and 1954. Exts.A4 and A5 are the Land Tax Receipts. In Exts.A1 and A3, it is seen that it is with respect to 85 cents of land in Survey No.181/2. In Ext.A2, the details of the property are not seen. In Exts.A4 and A5, the name of the Jenmi as the Devaswom and the name of the plaintiff as the lessee alone are shown, and the details of the property are not shown.

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The contention of the learned counsel for the appellants is that on a conjoint reading of Exts.A1 to A5, Ext.A4 and A5 could only be relating to 85 cents of land situated in Survey No.181/2 referred to in Exts.A1 and A3 documents. But the defendants had proved that they had obtained a Purchase Certificate from the Land Tribunal in O.A.No.10919/1975 dated 10/07/1976. It is issued as per Ext.A7 order of the Land Tribunal. Even though the plaintiff challenged the said Order granting purchase certificate, it is seen that the said appeal is dismissed. Since the plaintiff challenged the said Order granting a Purchase Certificate, it could be assumed that it covers the property,

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2025:KER:30648 including the plaint schedule property. Even though the plaintiff claimed that the plaintiff continued possession of the plaint schedule property after the date of Ext.A1 to A5 documents, no such document is produced before the Court. Exts.A1 to A3 would show that the rent paid as per those receipt is 15 Paras of paddy. But in the evidence of PW1, it states that he has been paying Rs.100/- as rent to the Jenmi. Though he claims that he has receipts of payment of the said rent, no such receipt was produced before the Trial Court. He has not assigned any reason for non payment of land tax after the date of Ext.A5 Land Tax receipt. The property is a vacant land. Hence none of the parties will be in a position to produce any evidence to show that they are in possession of the plaint schedule property. The court can rely only on the document produced by the parties to find out whose case is more probable. It is seen from Exts.B1 to B15 documents that the plaintiff had filed an earlier suit as O.S.No.32/1996 for recovery of possession. The delivery of the property was effected on 27/10/2007. It is admitted by the PW2 that the plaint schedule property and the property covered by Exts.B1 to B5 are the

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2025:KER:30648 same properties. It is also clear that the plaintiff described the plaint schedule property as 85 cents since the plaint schedule property in O.S. No.32/1996 was also 85 cents of land. When the property was taken delivery in pursuance of decree in O.S. No.32/1996, the plaintiff did not raise any objection. Immediately after obtaining the delivery of the property by the plaintiff in O.S. No.32/1996, the present suit is filed. If the plaintiff had possession over the plaint schedule property, the plaintiff ought to have obstructed delivery and should have raised a claim under Order 21 Rule 97 CPC. The plaintiff is not entitled to maintain a separate suit in view of the bar under Order 21 Rule 101 of the Civil Procedure Code.

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The evidence of PW1 and PW2 are not satisfactory to find possession in favour of the plaintiff. It is clear that the case pleaded by the defendant is more probable to prove possession of the plaint schedule property in favour of the defendant. The First Appellate Court rightly found that the plaintiff did not prove title and possession over the plaint schedule property.

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