Ayyappan Kochukunu vs Veluthakunju Gopalan

P. Bhavadasan, J.—Defendants 1 and 2 in O.S. 64 of 1990 are the Appellants. During the pendency of this appeal, the first Appellant, first Respondent and the third Respondent died. Their legal heirs have been brought on the party array. The parties and facts are hereinafter referred to as they are available before the trial court.

The suit was one for declaration of title, possession and other ancillary reliefs. Injunction was sought for in respect of 91 cents shown as A schedule property comprised in Sy. No. 323/9-B of Chunakkara Village. Declaratory reliefs were confined to plaint B schedule property which is part of plaint A schedule property having an extent of 1 = cents in the same survey number.

Plaint A schedule property, according to the Plaintiffs, was jointly purchased by the third Plaintiff, her sister Kali, another sister Chakki and another sister Thevi as per Ext.A1 of the year 1124 M.E. The rights of Thevi and Kali were assigned to Plaintiffs 1 and 2 as per Exts.A3 and A4. They are the son and daughter-in-law of Kali. The Defendants have no manner of right over the suit property. They trespassed into plaint B schedule property and removed earth from that portion of the property and reduced B schedule into their possession. That necessitated the suit seeking necessary reliefs.

The Defendants disputed the title of the Plaintiffs. According to them, the documents relied on by the Plaintiffs are fraudulent and concocted ones. They would say that 91 cents in Sy. No. 323/9B, 26 cents in Sy. No. 328/2B and 67 cents in Sy. No. 319/1 belonged to Athichan and Raman, the uncles of the Plaintiffs as per Ext.B1 of the year 1120 M.E. They died as bachelors and the properties devolved on the Defendants. When Chakki, Thevi and Kali were rendered homeless by the act of their uncles, the Defendants permitted them to reside on the southern portion of 1.84 acres of land. They took up residence therein. Late Kali and the third Plaintiff applied for purchase of kudikidappu on the basis of an agreement between the parties. But contrary to the understanding they put up a building in the property and the agreement could not be carried out. The Plaintiffs have started trespassing into other portions of the property for which they are not entitled to and they have the right merely to occupy the building. They do not have title to the property. On the basis of these contentions they prayed for a dismissal of the suit.

On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P. Ws.1 to 3 and documents marked as Exts.A1 to A8 from the side of the Plaintiffs. The Defendants had D. Ws.1 and 2 examined and Exts.B1 to B23 marked. Exts.C1 and C2 are the commission report and mahazar. On an evaluation of the evidence in the case, the trial court came to the following conclusions:

i) The Plaintiffs have not proved title to the suit property.

ii) Plaintiffs are in possession of a portion of the property.

iii) Plaintiffs have been residing in the property for a long time.

iv) Since the property in the possession of the Plaintiffs has not been properly identified, no injunction can be granted.

On the basis of the above findings the suit was dismissed.

The Plaintiffs carried the matter in appeal as A.S.192 of 1992 before the District Court, Mavelikkara. The lower appellate court on a re-evaluation of the evidence came to the conclusion that the Plaintiffs have been successful in proving title and possession and granted a decree to the Plaintiffs as prayed for.

In this Second Appeal notice is seen issued on the following questions of law:

A. Has the lower appellate court any jurisdiction to grant a decree of declaration of title on the basis of a derivation of title, which was never pleaded or put forward?

B. Whether, on the facts and in the circumstances of the case, the Plaintiffs have proved their title to the suit property so as to grant a decree of declaration of title in their favour?

C. Whether the lower appellate court has not acted perversely and illegally in proceeding on the basis that the Plaintiffs are direct descendants of Kandan Kandan, the original Pattadar, a case which the Plaintiffs themselves did not have ?

D. Have the Plaintiffs proved their case that the patta stood in the name of Chaman Ayyappan or that the patta was got transferred in his name, and further that the said Chaman Ayyappan was their predecessor in order to entitle them to a relief?

E Whether the decree of the lower appellate court as granted is sustainable on the pleadings and in the evidence in the case?

F Are not the Plaintiffs estopped from disputing the title of the Defendants by reason of their filing application for purchase of kudikidappu?

Learned Counsel appearing for the Appellants contended that the lower appellate court has misdirected itself both on facts and in law. The court below has not appreciated the evidence in the proper perspective and has misconstrued the documents. The lower appellate court, according to the learned Counsel, has proceeded on the basis that the parties have a common ancestor. That is a case which even the Plaintiffs did not have. They traced their title to Chaman Ayyappan and not to Kandan Ayyappan, S/o. Kandan Karamban. This basic error has resulted in drawing wrong conclusions. The trial court has properly appreciated the evidence in the case and has found that the Plaintiffs have not been able to prove their title to the property on the basis of the evidence available in the case. Accordingly it is contended that appellate decree is liable to be set aside and the decree of the trial court restored.

The Respondents on the other hand contended that Exts.A1 and A2 are sufficient to show the title of the Plaintiffs. Even going by the finding of the trial court, the Plaintiffs are in possession of the property and are residing there. Further finding of the trial court was that they have been residing in the property for a long time. The evidence of the Defendants in support of their contention is very shabby and there is nothing to show that they have title and possession over the suit property. The lower appellate court has rightly found that the Defendants have no right over 91 cents of property comprised in Sy. No. 323/9B and that the Plaintiffs have proved their title. It is pointed out that the findings arrived at by the lower appellate court are on the basis of an appreciation of the evidence in the case and are findings of fact. No substantial question of law arises for consideration in this Second Appeal and it is only to be dismissed.

The Plaintiffs trace their claim to Exts.A1, A2 and A6. The property involved is 91 cents in Sy. No. 323/9B. Plaint A Schedule is shown as the said property. B schedule is 1 = cents which forms part of A schedule.

Ext.A2 of the year 1121 is a deed of assignment executed in favour of Kochukunjan Nair by the children of Kali, namely, Chakki, Karambi and Thevi. They traced their title to patta No. 936 in favour of Kandan Ayyappan and claimed that the property was in the possession of the assignors. By Ext.A1 of the year 1124 M. E. Kochukunju Nair re-conveyed the property to Thevi, Chakki, Kali, D/o. Chakki, and 8 year old daughter of Kali, namely, Velumbi. Velumbi is the third Plaintiff in the suit. By Ext.A3 dated 10.12.1980 Thevi assigned her right obtained under Ext.A1 to Plaintiffs 1 and 2. By Ext.A4 dated 28.3.1981 Kali assigned her share obtained under Ext.A1 to Plaintiffs 1 and 2. Thus the Plaintiffs trace their title to Exts.A1 to A4. In Ext.A2 it is stated that Kandan Ayyappan is the father of the assignor. While the patta referred to in Ext.A2 bears the number 936, in Ext.A1 and subsequent documents the number is shown as 5977 of Chunakkara Village.

The Defendants on the other hand rely on Ext.B1 of the year 1120. That is executed by Valiyakottukkal Kuravan Kandan''s son Karamban and Ayyappan, S/o. Karamban in favour of Elayasseril Karavar Ayyappan''s sons Athichan, Raman, Kochukunju and Narayanan. In this document also, the patta number referred to is 936. According to the recital in the deed, it stands in the names of Kandan Kandan, who is the brother of Karamban. It is stated that after the death of Kandan Kandan the property vested with Karamban and Ayyappan. Ext.B2 dated 7.2.1968 is a mortgage deed executed by Athichan and his nephews Kochukunju and Narayanan in favour of Krishnan. In this document, the patta number referred to is 5977. It is significant to notice that in this document title is not traced to Ext.B1. By Ext.B3 dated 19.11.1973 Kochukunju and Narayanan assigned the property to Elayisseril Karambi''s son Chinna. They traced title to patta No. 5977 and referred to the earlier mortgage. It must be noticed that the property dealt with under this document is comprised in Sy. No. 319/1. Ext.B4 dated 21.11.1983 is a release deed in favour of the wife of Kochukunju relating to the property comprised in Sy. No. 319/1.

Neither side has produced or sought for production of documents relating to patta No. 936. What is produced is Ext.A6, an extract of a settlement register which shows that there is 67 cents of property in Sy. No. 319/1, 91 cents in 323/9B and 26 cents in 328/2B in the same patta thus constituting a total extent of 1.84 acres.

The dispute relates to 91 cents in Sy. No. 323/9B. Both Exts.A1 and B1 refers to the 91 cents comprised in Sy. No. 323/9B. In fact Ext.A1 shows the extent as 92 cents. So also Exts.A3 and A4.

Both the parties lay claim to 91 cents in Sy. No. 323/9B. However, Ext.B1 is the earlier deed in point of time. The Plaintiffs were not able to explain as to who is Chaman Ayyappan referred to in Ext.A6. Their case appears to be that Ayyappan is another brother of Kandan Kandan. The Defendants have produced Exts.B5 to B23 tax receipts to show that they have paid tax in respect of the property comprised in Thandaper No. 5977 and three items of properties covered by Ext.A6.

P.W.1 says that patta was obtained by his grandmother''s father. His case seems to be that 91 cents in Sy. No. 323/9B belongs to the Plaintiffs and other two items comprised in 319/1 and 328/2B belong to the Defendants. He in no less terms claimed that Chaman Ayyappan referred to in Ext.A6 is none other than the father of his grandmother. P.W.1 also says that Kandan Kandan is the grandfather of the Defendants. His case seems to be that Kandan Kandan and Chaman Ayyappan were brothers.

One must notice that patta referred to in Ext.B1 also bears the number 936. Ext.B1 recitals show that the document is executed by Valiyakottukkal Kurumban Kandan''s son Karamban and Ayyappan, S/o. Karamban. What is stated in Ext.B1 is that the property having an extent of 1.84 acres comprised in patta No. 936 stood in the name of the brother of Karumban and the paternal uncle of the Plaintiffs namely, Kandan Kandan.

The Plaintiffs seem to have no case that they are in any way related to Kandan Kandan or Ayyappan mentioned in Ext.B1. Their case appears to be that Chaman Ayyappan and Kandan Kandan were brothers. Apart from lack of evidence in this regard and also difference in the house name of Ayyappan through whom Plaintiffs trace title belonged to Elayasseril while the Defendants trace their title to Valiyakottukkal family members. Except for the interested testimony of P.W.1, there is nothing to show that Kandan Kandan and Chaman Ayyappan were brothers.

The lower appellate court seems to have taken the view that the Defendants did not get 91 cents in Sy. No. 323/9B at all as per Ext.B1 and they get only 50 cents. The relevant recital reads as follows:

The lower appellate court feels that by virtue of the above recital, the Defendants got only 50 cents, though they paid tax for 90 cents also.

The lower appellate court seems to have proceeded on the basis that Ayyappan, father of Chakki, Thevi and and Karambi was the son of Kandan Kandan. The trial court was of the view that there was want of evidence in this regard. On going through the evidence in the case, it does not appear that the view taken by the lower appellate court is quite correct. Ext.A6 mentions the name of Chaman Ayyappan. But the Plaintiffs have no explanation as to who is Chaman Ayyappan mentioned in Ext.A6. As already noticed, Ext.B1 is of the year 1120. Exts.A1 and A2 are of 1124 and 1121 respectively. There is ample evidence in this case to show that the Plaintiffs and their predecessors in interests have been residing in the property for a long time. It is true that the Defendants have stated before the court below that the third Defendant and her sister had applied for kudikidappu and that was rejected. But no documents with regard to this aspect are seen produced and there is no evidence regarding that at all.

It is here that Ext.A4 assumes importance. Ext.A4 is a document by which Kali assigned her rights in favour of Plaintiffs 1 and 2. The first Defendant is the attestor to that document.

Learned Counsel appearing for the Appellants contended that the attestor need not know the contents of the document. It may be true. But in this case it cannot be taken as a mere attestation alone. Kali was residing in the property. They were claiming rights in derogation of the rights of the first Defendant. It is true that while giving evidence the first Defendant has denied his signature on the document. He infact denied his signature in all the documents. That shows that he has little regard for truth. The lower appellate court has noticed that D.W.1 has admitted that Kochukunjan Nair had taken income from the property.

A reading of Ext.B1 would suggest that only 50 cents were assigned to the assignees. However, it is seen from other documents produced by the Defendants, namely, Exts.B5 to B23 that they have paid tax for 90 centsin Sy. No. 323/9B.

The case of the Defendants that the predecessor-in-interest of the Defendants are permitted to reside in the building does not appear to be quite correct. True, being a suit on title, the burden is on the Plaintiffs to establish his title to the suit property. But here in this case both sides have adduced evidence. So the question of burden of proof recedes to the background and the case will have to be decided on the basis of preponderance of probability.

The courts below have noticed that the property is in the possession of the Plaintiffs and the property admittedly in the possession of the Defendants are at two levels and the property of the Defendants situate on the eastern side of the plaint schedule property.

D.W.2 says that the Plaintiffs begun residence in the suit property in 1981-1982. A reading of the evidence of D.W.2 shows that A schedule lies in three taks with well laid kayyala separating it from the admitted property of the Defendants on the east.

The Plaintiffs have adduced evidence to show that they are taking income from the property. On the other hand there is no evidence on the side of the Defendants to show that they are enjoying the income from the suit property. D.W.2 has admitted that the entire improvements in the A schedule are of the same nature and of same age.

It is difficult to believe that in 1121 M.E. and 1124M.E. when there was admittedly no dispute between the parties, recitals would have been included in the documents which are false and with the intention to injure the Defendants. It is difficult to believe that false documents would have been created then.

Nowhere in chief examination D.W.2 has a case that he has effected improvements nor has he stated that he is taking income from there.

Though the lower appellate court might have made certain insignificant mistakes, the view taken by the lower appellate court cannot be said to be perverse or contrary to the evidence on record. At any rate, the view taken by the lower appellate court is a possible view. As rightly pointed out by the learned Counsel for the Respondents, the finding of the lower appellate court is based on an appreciation of evidence in the case and it could not be characterized as perverse or unwarranted by the evidence on record. The findings are pure findings on fact. Even if a different view is possible, that is not a ground to interfere in Second Appeal while exercising powers conferred u/s 100 of the Code of Civil Procedure.

The result is that this appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs.